Technical Assistance for Public Participation (TAPP) in Defense Environmental Restoration Activities

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 203

RIN 0790-AG14

Technical Assistance for Public Participation (TAPP) in Defense

Environmental Restoration Activities

AGENCY: Office of the Deputy Under Secretary of Defense for

Environmental Security (DUSD(ES)), DOD.

ACTION: Proposed rule.

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SUMMARY: Pursuant to the National Defense Authorization Act of 1996,

the Department of Defense proposes these regulations on providing

technical assistance to local community members of Restoration Advisory

Boards (RABs) and Technical Review Committee (TRCs). RABs and TRCs are

established to review and comment on Department of Defense actions at

military installations undertaking environmental restoration's

activities.

DATES: Written comments must be received on or before February 25,

1997.

ADDRESSES: Send written comments and requests for documents to the

Office of the Deputy Under Secretary for Environmental Security/

Cleanup, 3400 Defense Pentagon, Washington, DC 20301-3400. Comments may

also be submitted electronically by sending electronic mail (e-mail)

to: [email protected].

FOR FURTHER INFORMATION CONTACT: Patricia Ferrebee or Marcia Read,

telephone (703) 697-5372 or (703) 697-7475.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Introduction

A. Authority

B. Background of Rulemaking

II. Summary of RAB Regulation

III. Responses to Major Public Comments on RAB Funding Options

Raised in the Notice of Request for Comments

A. Summary of Options

B. Comments in Support of Option C--Issue Purchase Orders to

Assistance Providers

C. Comments in Support of Option A--Using the Environmental

Protection Agency's (EPA's) Technical Assistance Grant (TAG) and

Technical Outreach Services to Communities (TOSC) Programs

D. Comments in Support of Option B--Procurement of Independent

Provider

E. Comments in Support of Option A Combined with Option C

F. Qualifications for Independent Technical Assistance Providers

G. Methods and Criteria for Allotment

H. Additional Services to be Provided Under Option C

I. Other Comments and Suggestions

IV. Regulatory Analysis

A. Regulatory Impact Analysis

B. Regulatory Flexibility Analysis

C. Paperwork Reduction Act

I. Introduction

A. Authority

This proposed rule is issued under the authority of Sec. 2705 of

Title 10, United States Code. Subsections (c) and (d) of Section 2705

encourage the Department of Defense to establish either a Technical

Review Committee (TRC) or Restoration Advisory Board (RAB) to review

and comment on DoD actions at military installations undertaking

environmental restoration activities. In 1994, Congress authorized the

Department of Defense to develop a program to facilitate public

participation by providing technical assistance to local community

members of TRCs and RABs (section 326 of the National Defense

Authorization Act for Fiscal Year 1995, P.L. 103-337). In 1996,

Congress revised this authority (section 324 of the National Defense

authorization Act for Fiscal Year 1996,

[[Page 68185]]

P.L. 104-112). It is pursuant to this revised authority, which is

codified as new subsection (e) of Sec. 2705, that the Department of

Defense issues this proposed rule.

In general, Sec. 2705(e) permits the Department of Defense to

obtain, from private sector sources, technical assistance to help TRCs

and RABs better understand the scientific and engineering issues

underlying an installation's environmental restoration activities. TRCs

and RABs may request this assistance only if:

(1) The TRC or RAB demonstrates that the Federal, State, and local

agencies responsible for overseeing environmental restoration at the

installation do not have the technical expertise necessary for

achieving the objective for which the technical assistance is to be

obtained; or

(2) The technical assistance--

(a) Is likely to contribute to the efficiency, effectiveness, or

timeliness of environmental restoration activities at the installation;

and

(b) Is likely to contribute to community acceptance of

environmental restoration activities at the installation.

Funding for this technical assistance program will come from the

Defense Environmental Restoration Account for operating installations

and formerly used defense sites, and from the Defense Base Closure

Account for installations approved for closure.

B. Background of the Rulemaking

Over the past several years, the Department of Defense has

participated as a member of the Federal Facilities Environmental

Restoration Dialogue Committee (FFERDC). This committee, comprised of a

wide range of stakeholders, was chartered to develop consensus policy

recommendations for improving environmental restoration at Federal

facilities. In February 1993, the FFERDC issued the ``Interim Report of

the FFERDC: Recommendations for Improving the Federal Facilities

Environmental Restoration Decision-Making and Priority-Setting

Processes.'' This report recommended that Federal agencies become more

proactive in providing information about restoration activities to

stakeholders and that citizen advisory boards be established to provide

advice to government agencies that conduct restoration at Federal

facilities. This report also suggested the initiation of administrative

and technical assistance funding.

The Department of Defense has issued policy for establishing RABs

at all installations. On September 9, 1993, the Department of Defense

issued policy for establishing RABs at installations designated for

closure or realignment under the BRAC Acts of 1988 and 1990 where

property will be available for transfer to the community. On April 14,

1994, the Department of Defense issued RAB policy for non-closing

installations as part of Management Guidance for Execution of the FY94/

95 and Development of the FY96 Defense Environmental Restoration

Program. The policy called for the establishment of RABs at DoD

installations where there is sufficient, sustained community interest.

Criteria for determining sufficient interest are: (1) A government

request that a RAB be formed; (2) fifty local residents sign a petition

requesting that a RAB be formed; (3) an installation determines that a

RAB is needed; or (4) the closure of an installation involves the

transfer of property to the community. On September 27, 1994, the

Department of Defense and the Environmental Protection Agency (EPA)

issued joint RAB guidelines on how to develop and implement a RAB.

Finally, on August 6, 1996, the Department of Defense proposed

regulations governing the characteristics, composition, and

establishment of RABs pursuant to NDAA-95 (61 FR 40764-40772). These

regulations propose the policy for creation and implementation of RABs

at defense installations.

The purpose of a RAB is to bring together people who reflect the

diverse interests within the local community, enabling an early and

continual flow of information between the affected community, the

Department of Defense, and environmental oversight agencies.

Recognizing the importance of citizen participation in the

environmental restoration process, Congress authorized the provision of

technical assistance and assistance to aid public participation in

Sec. 326 of NDAA-95. In response to this authority, the Department of

Defense published a Notice of Request for Comments (May 24, 1995, 60 FR

27460-27463) on alternative methods for funding technical assistance.

In 1996, Congress revised this authority in Sec. 324 of NDAA-96. This

proposed rule proposes regulations for providing technical assistance

to RABs and Technical Review Committees (TRCs), and details the

specific requirements for obtaining this assistance consistent with

this new authority. Regulations regarding the characteristics,

composition, and establishment of RABs were previously announced on

August 6, 1996 (61 FR 40764-40772).

Because this rule relates to public grants, benefits, or contracts,

it is exempt from the requirements of Sec. 553 of the Administrative

Procedure Act (5 U.S.C. 553), including notice and opportunity for

comment. Nonetheless, the Department of Defense is interested in

receiving public comments. The Department of Defense previously sought

public comment on the issues addressed in this proposed rule in its May

1995 Notice of Request for Comments, and is seeking comments on this

proposed rule as well in order to develop the final rule.

II. Summary of RAB Regulation

RAB policy is contained in the April 14, 1994, Management Guidance

for Execution of the FY94/95 and Development of the FY96 Defense

Environmental Restoration Program and the September 9, 1993, memorandum

on Fast Track Cleanup at Closing Installations. Joint Department of

Defense and EPA RAB Implementation Guidelines were published in

September 1994. Proposed regulations on RAB development and procedures

were published on August 6, 1996, (61 FR 40764-40772).

A RAB will be established at installations where there is

sufficient, sustained community interest. Criteria for determining

sufficient interest are:

(1) A local government requests that a RAB be formed; or

(2) Fifty local residents sign a petition requesting that a RAB be

formed; or

(3) An installation determines that a RAB is needed; or

(4) The closure of an installation involves the transfer of

property to the community.

The purpose of a RAB is to act as a forum for discussion and

exchange of information between agencies and the community and to

provide an opportunity for stakeholders to review progress and

participate in a dialogue with the decisionmakers.

The RAB will be comprised of representatives from the Department of

Defense Components, the EPA and/or States, and members of the local

community. The Department of Defense will ensure that the membership

reflects the diverse interests within the community.

Statutory language defining the duties of the Secretary of Defense

regarding consultations with RABs or TRCs can be found at 10 U.S.C.

Sec. 2705(f). Details regarding the establishment, operation, funding,

and reporting requirements for RABs are contained in the proposed rule

published in the Federal Register on August 6, 1996, (61 FR 40764-

40772).

[[Page 68186]]

III. Responses to Major Public Comments on RAB Funding Options Raised

in the Notice of Request for Comments

A. Summary of Options

Consistent with Sec. 326 of the National Defense Authorization Act

for Fiscal Year 1995 (NDAA-95), the Department of Defense considered

three options for technical assistance funding to citizens affected by

the environmental restoration of DoD facilities. These options were

published by the Department of Defense on May 24, 1995, (60 FR 27460-

27463) in a Notice of Request for Comments. The three options under

consideration are described briefly as follows:

Option A proposes using the existing EPA Technical Assistance Grant

(TAG) and Technical Outreach Services to Communities (TOSC) programs as

vehicles to provide technical assistance to community members of TRCs

and RABs. Under this option, the Department of Defense would sign a

Memorandum of Understanding (MOU) authorizing the EPA to provide

assistance to community members of TRCs and RABs using EPA's existing

regulations. The TAG process provides funding directly to community

members at National Priority List (NPL) installations. The TOSC program

would provide technical advisors and related services from designated

Hazardous Substance Research Centers to community members at non-NPL

installations.

Option B would involve the competitive procurement of one or more

independent technical assistance providers to provide technical and

public participation assistance to community members of TRCs and RABs

at DoD installations.

Option C proposes the issuance of purchase orders to technical and

public participation assistance providers up to the allowable limit per

purchase order. Under this option, community members of the TRC or RAB

would provide a description of the service they are requesting and the

names of one or more proposed technical assistance providers to a DoD

contracting office. A minimum set of organizational qualifications for

receiving assistance would be specified by the Department of Defense

under this option.

In the National Defense Authorization Act for Fiscal Year 1996

(NDAA-96), Congress established a limit on the total amount of DERA and

BRAC funds that could be made available for use as support to RABs.

These funding sources also fund technical assistance for public

participation. Under all of the technical assistance options examined

today, the local installations will continue to be responsible for

providing that portion of the available funds required for

administrative support. Furthermore, under all options assistance would

be limited to community members of TRCs or RABs at DoD installations.

This has the added benefit of providing a return to the government in

the form of enhanced public participation in the restoration process.

Furthermore, NDAA-96 directed the Department of Defense to consider

funding for technical assistance only under the following specified

conditions:

(1) The Technical Review Committee or Restoration Advisory Board

must demonstrate that the Federal, State, and local agencies

responsible for overseeing environmental restoration at the

installation, and available DoD personnel, do not have the technical

expertise necessary for achieving the objective for which the technical

assistance is to be obtained; or

(2) The technical assistance--

(a) Is likely to contribute to the efficiency, effectiveness, or

timeliness of environmental restoration activities at the installation;

and

(b) Is likely to contribute to community acceptance of

environmental restoration activities at the installation.

This proposed rule responds to the public's comments on the options

published in the request for comments and the requirements of Sec. 2705

of Title 10 of the U.S. Code, as amended.

A total of 43 written comments were received in response to the

request for comment. Approximately two-thirds of the comments received

were from members of RABs, the groups most directly affected by the

proposed rules, although a number of comments were also received from

various government sources and potential providers of the services

described in the notice. The written comments are available to the

public in the docket for the notice. The major issues addressed by the

comments and the Department of Defense responses to them are provided

in this preamble.

B. Comments in Support of Option C--Issue Purchase Orders to Assistance

Providers

A clear majority of the commenters expressed a preference for

Option C, citing the increased flexibility and responsiveness to

community needs provided by this option and the increased ability of

the RABs and TRCs to contribute to the selection of the technical

assistance provider. Several commenters noted the importance of this

latter provision in Option C, with some going on to state that the

separation of the Department of Defense from the selection process was

important in eliminating potential conflicts of interest and fostering

increased trust in the contributions of the technical assistance

providers. Furthermore, this option was viewed as an efficient use of

funds, as unnecessary layers of management were eliminated.

In response to the clear support of commenters for Option C, the

Department of Defense is today publishing the proposed rule describing

the procedures for implementing this option for funding technical

support for public participation. This option also provides benefits to

the government, primarily in providing a direct return to the

restoration process in the form of informed and involved public

participation. The RABs and TRCs are in the best position to determine

their particular requirements for assistance. Their description of the

services required and the criteria for selecting a provider will allow

the Department of Defense to obtain the necessary resources to enhance

their participation. Option C, as proposed today, provides the most

direct means for meeting those needs and for meeting the requirements

of the Federal Acquisition Regulations. Furthermore, by means of the

eligibility requirements outlined in Sec. 203.11 and Sec. 203.12 of

this proposed rule, the Department of Defense has more assurance that

its limited will be used to provide technical support to the RABs or

TRCs.

The Department of Defense supports the legislative initiative to

enhance public participation at DoD environmental restoration sites.

Based upon the comments received, the Department of Defense believes

that Option C will provide the greatest opportunity to provide TRCs and

RABs with technical assistance in a manner that will promote the

highest level of confidence among public participants in that

assistance.

Ten commenters remarked on the increased workload the RABs might

incur from the implementation of Option C, since this option would

involve an application for assistance, a process with which the RABs

might not be familiar. However, many felt the administrative burden

under this option was significantly less than that entailed by Option

A.

The Department of Defense is aware of the administrative burdens

that might fall to RABs or TRCs and for this reason has sought to

minimize them with the publication of this rule. Each option proposed

would impose some

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responsibility for administration and accounting. This proposed rule,

however, seeks to limit the burden on RABs and TRCs by using the

Department of Defense as the contracting office to administer funds to

providers selected on the basis of specifications provided by RABs and

TRCs, subject to the limitations of the Federal Acquisition Regulations

as noted in the proposed rule. This process is expected to minimize

administrative impacts on RABs and TRCs while still providing

sufficient reporting and management requirements to effectively run the

program.

Although Option C was favored by most respondents, some commenters

preferred either Option A or Option B or some combination of options

which included A or B. The Department of Defense carefully considered

these options, but ultimately rejected them in favor of Option C for

many of the same reasons as were provided by commenters.

C. Comments in Support of Option A--Using EPA's TAG and TOSC Program

Option A was favored by six commenters, who cited its status as an

ongoing and functioning program that has already provided technical

assistance to a number of groups at Federal facilities. Two of these

commenters represented TOSC providers, or individual Hazardous

Substance Research Centers; two others had positive experiences with

this process at their installations. There were, however, other

commenters who argued against the selection of this option. Principal

among the reasons provided by these commenters was the lack of local

control over the selection of a provider. Several commenters also noted

the ``cumbersome and time-consuming'' administrative requirements

associated with the application and reporting requirements of TAG

grants and TOSC support. These were felt to be beyond the scope of

administrative resources available to most typical RABs or TRCs. One

commenter questioned whether the selection process used by TOSC

providers would adequately serve the needs of RABs or TRCs, citing

their experience with a potential TOSC provider. Other limitations

noted were the unequal treatment afforded NPL sites versus non-NPL

sites, the normal limitation of one TAG grant per site, which might

lead to competition between RABs or TRCs and other community groups,

and the uncertain ability of the EPA to provide sufficient resources to

manage the additional grants for DoD facilities. Indeed, Region IX EPA

opposes the use of Option A because of the significant increase in

workload it will generate for EPA staff. This commenter also believes

that RABs and TRCs may be ineligible for TAG grants, which are intended

for non-profit community groups, and is concerned that DoD's definition

of technical assistance is broader than that used by the EPA and may

lead to ineligible charges or inadequate support for RABs and TRCs.

In selecting Option C instead of Option A as a means for providing

assistance to RABs and TRCs, the Department of Defense has balanced the

expressed desires of those bodies to identify proposed technical

assistance providers and the Department of Defense's own financial

management responsibilities. Furthermore, the option of using TAG

grants or TOSC support will continue to be available to communities

surrounding DoD installations, although the prior existence of TAG or

TOSC support at an installation may affect DoD funding priorities.

Those arguments supplied by commenters in favor of Option A, because of

its ready adaptation to Department of Defense use, are met by this

proposed rule by implementing a process that will be immediately

available to RABs and TRCs to obtain technical support. The Department

of Defense also maintains that many of the comments opposing the

selection of Option A have merit, and concurs that the administrative

burden on RABs or TRCs associated with the procurement of a TAG grant

or TOSC support could be an impediment to obtaining meaningful

assistance.

D. Comments in Support of Option B--Procurement of Independent Provider

Only one commenter expressed interest solely in the selection of

Option B, noting the neutral and credible assistance such a provider

could supply. This commenter also expressed interest in providing the

services outlined under this option. The Department of Defense's

rejection of this option was again primarily based upon the majority of

the commenters' wishes to maintain control of the assistance provider

at the local level. Other comments that the Department of Defense

believes have merit include the comment that the use of regional or

national providers may exclude from participation firms providing

localized or specialized expertise, and the fact that the procurement

of regional or national providers under this option would take

considerable time to implement.

E. Comments in Support of Option C Combined with Option A or B

Ten commenters favored the selection of Option C in conjunction

with either Option A or Option B. The principal reason cited for this

preference was the possibility of deflecting administrative burdens

from the RABs and TRCs onto other entities. The Department of Defense

believes it has met this objective by the use of DoD contracting

offices in the issuance and administration of purchase orders, as

detailed in this rule. The RABs and TRCs will have the ability to

define the TAPP project, specify assistance provider qualifications and

criteria for consideration by the Department of Defense, and provide

consultation to the Department of Defense in the selection process.

F. Qualifications for Independent Technical Assistance Providers

The Department of Defense also solicited comments on the

qualifications necessary for the independent technical assistance

providers described in Option B, and the desirability of regional

versus national assistance providers. However, because the Department

of Defense supports Option C, these issues are no longer pertinent to

this proposed rule.

G. Methods and Criteria for Allotment

Regardless of the option chosen, funding must, out of necessity, be

subject to an annual limit per RAB or TRC. The Department of Defense

solicited comments and suggestions as to the size of such a cap or the

criteria that should be used to establish a cap.

Eleven commenters suggested options for allocating the limited

resources available for technical assistance. Proposed amounts ranged

from $25,000 to $325,000, with one commenter noting that the larger

number is still less than that incurred by lawsuits brought by affected

community members, and another commenter stating that $25,000 was

insufficient to hire qualified technical assistance for larger

projects. Other commenters proposed allotments based on a percentage of

the BRAC or DERA restoration budget. Suggested amounts were based on

one to five percent of the restoration budget. One commenter suggested

a determination based upon the total number of RABs expected to make

requests versus the available resources.

The Department of Defense must carefully balance available funds

with the needs of RABs and TRCs to procure needed technical assistance.

In response to the limits suggested by commenters,

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and in view of the resources available, the Department of Defense has

determined that total technical assistance funding will be limited to

$100,000 per RAB or TRC, with no more than the lesser of 1 percent of

the installation's projected restoration cost-to-complete or $25,000

available during any fiscal year. This amount is consistent with the

amounts available for similar purposes under the EPA's TAG/TOSC

programs and should be sufficient to obtain meaningful technical

assistance for a variety of needs. Limiting funding on the basis of an

installation's annual restoration budget is one means available to the

Department of Defense for allocating resources among competing

facilities. The Deputy Under Secretary of Defense (Environmental

Security) may waive the $100,000 total and $25,000 annual limitations,

as appropriate, to reflect the complexity of response action, the

nature and extent of contamination at the installation, the level of

activity at the installation, projected total needs as identified by

the TAPP recipient, the size and diversity of the affected population,

and the ability of the TAPP recipient to identify and raise funds from

other sources.

In addition to the issue of providing technical assistance to RABs

or TRCs, the Department of Defense requested comment on methods of

determining priorities among TAPP projects. Two commenters suggested

the closure status of the base should affect priority, since these

bases tend to be on a fast track cleanup schedule. Other factors that

were offered as a basis for prioritization included the severity of the

problem or risk associated with a base, the stage of the restoration

program at the base, and the proposed use of the money. Commenters did

question where the decisionmaking authority would lie for setting

priorities among competing funding requests.

In response, the Department of Defense has determined that TAPP

projects will be funded upon completion of an eligible TAPP request, in

the order received, as available resources permit. In the event that

TAPP requests exceed available resources, the Department of Defense

Component will consider factors such as closure status, the

installations restoration program status, and alternate sources of

assistance in determining funding priorities.

H. Additional Services to be Provided Under Option C

The Department of Defense developed a list of public participation

services it believes could be provided under Option C in addition to

hiring technical advisors, facilitators, mediators and educators. These

services include: translation and interpretation; training;

transportation to meetings; and payment of approved travel. The notice

solicited comments regarding additional services that should be

considered to meet the goal of providing technical assistance to RABs

and TRCs and to encourage meaningful public participation.

Although only a limited number of commenters chose to respond to

the request for additional services that should be offered, a variety

of options were suggested. These included technical support, such as

the procurement of independent technical consultants, training, and

legal advice, as well as administrative and financial support, such as

translation services, reimbursement for postage, phone calls, and

travel, community outreach programs, newsletters, stipends for RAB

members, and child care.

Because of limitations within the legislation and because resources

for RAB and TRC support are limited, the Department of Defense has

chosen to focus resources on technical support. The Department of

Defense has an interest in promoting partnering with the community

members of TRCs and RABs and believes that providing technical

assistance will enable them to provide more meaningful input to the

restoration process. Technical support, including short-term training,

attendance at workshops, and procurement of technical consultants,

would be eligible for funding under the program outlined in this rule.

Specific eligibility criteria can be found in Sec. 203.11 of this

proposed rule. Administrative costs incurred by the RABs and TRCs will

continue to be borne by the installation, as is currently the case.

Certain types of legal assistance will not be eligible for funding

because they could promote an adversarial relationship between

community members and the installation. Specifically, litigation or

underwriting legal actions, such as paying for attorney fees or paying

for a technical assistance provider to assist an attorney in preparing

legal action or preparing for and serving as an expert witness at any

legal proceeding regarding or affecting the site, will be ineligible

for funding. Other types of assistance, such as translation and

interpretation, transportation to meetings, and community outreach

programs, represent needs of the community at large, and are not

limited by RAB membership. As such, they are beyond the scope of the

TAPP funding mechanism.

I. Other Comments and Suggestions

Although not specifically requested by the notice for comments, a

few commenters suggested additional options for increasing or improving

public participation. These included extending assistance to community

groups other than RABs or TRCs; providing additional assistance for

minority voices on RABs; obtaining peer review from other Federal

agencies with relevant technical expertise; providing documents in

electronic format to RABs, TRCs, and public repositories; releasing

draft documents for review; and using local universities for technical

support.

In keeping with the legislation, the Department of Defense is

limiting the program announced in this proposed rule to providing

technical assistance to community members of TRCs and RABs. The EPA's

TAG and TOSC programs are still available for other community groups.

The use of assistance provided through the DoD program will be decided

by individual RABs and TRCs, given the eligibility criteria specified

in Sec. 203.11 of this proposed rule.

Regarding the other suggestions, these are beyond the scope of the

current rulemaking and therefore will not be addressed. The Department

of Defense, however, notes its continuing efforts to enhance public

participation at its facilities and encourages those commenters to

pursue innovative ideas for public participation through the RAB

process.

IV. Regulatory Analysis

A. Regulatory Impact Analysis

Under Executive Order 12866 (October 4, 1993, 58 FR 51735), the

Department of Defense must determine whether this regulatory action is

``significant'' and therefore subject to review by the Office of

Management and Budget (OMB) an the requirements of the Executive Order.

under Section 3(f), the order defines a ``significant regulation

action'' as an action that is likely to result in a rule: (1) Having an

annual effect on the economy of $100 million or more, or adversely and

materially affecting a sector of the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local or tribal governments or communities (also referred to as

``economically significant''); (2) creating serious inconsistency or

otherwise interfering with an action taken or planned by another

agency; (3) materially altering

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the budgetary impacts of entitlement, grants, user fees, or loan

programs or the rights and obligations or recipients thereof; or (4)

raising novel legal or policy issues arising out of legal mandates, the

President's priorities or the principles set forth in this Executive

Order.

Pursuant to the terms of this Executive Order, the OMB has

determined this rule is a ``significant regulatory action'' because it

may raise novel legal or policy issues. As such, this action was

submitted to the OMB for review, and any comments or changes made in

response to the OMB suggestions or recommendations have been documented

in the public record.

B. Regulatory Flexibility Analysis

The Regulatory Flexibility Act of 1980 requires that agencies

evaluate the effects of proposed rules for three types of small

entities:

(1) Small businesses (as defined in the Small Business

Administration regulations);

(2) Small organizations (independently owned, non-dominant in their

field, non-profit); and

(3) Small government jurisdictions (serving communities of less

than 50,000 people).

The Department of Defense has considered the interests of small

businesses and small organizations by means of the use of purchase

orders to obtain technical assistance. As stated in the Federal

Acquisition Regulations, those purchase orders under $100,000 are

reserved for small businesses, unless it can be demonstrated that small

businesses are unable to provide the necessary service or product. Only

a limited number of small non-profit organizations are expected to be

affected by this program as it is likely that only those non-profit

organizations located near Department of Defense installations with

ongoing environmental restoration programs will, in most cases, provide

the requested technical assistance. The Department of Defense was

careful not to impose additional reporting requirements on the public

and to stay within the reporting requirements quota for procurements.

Moreover, the Department of Defense has undertaken several

activities to help small organizations. The Department of Defense has

sought to increase the dollar amount of small purchase orders to

simplify the procurement process. The Department of Defense has

deliberately written the regulations to encourage small entities to

apply.

Given the limited funding available to this program from Congress,

and the rationing operation of Sec. 203.4, this rule is not expected to

have a significant economic impact on a substantial number of small

entities. The Under Secretary for Acquisition and Technology

(USD(A&T)), therefore, certifies that no Regulatory Flexibility

Analysis is necessary.

C. Paperwork Reduction Act

Pursuant to the Paperwork Reduction Act of 1995, the reporting and

recordkeeping provisions of this proposed rule have been submitted to

the OMB for review under Sec. 3507(d) of the Act.

In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction

Act of 1995, the Office of the Assistant Deputy Under Secretary of

Defense for Environmental Security (Environmental Cleanup) announces

the proposed public information collection and seeks public comment on

the provisions thereof. Comments are invited on: (1) Whether the

proposed collection of information is necessary for the proper

performance of the functions of the agency, including whether the

information shall have practical utility; (2) the accuracy of the

agency's estimate of the burden of the proposed information collection;

(3) ways to enhance the quality, utility, and clarity of the

information to be collected; and (4) ways to minimize the burden of the

information collection on respondents, including through the use of

automated collection techniques or other forms of information

technology.

The collection of information is necessary to identify products or

services requested by community members of restoration advisory boards

or technical review committees to aid in their participation in the

Department of Defense's environmental restoration program, and to meet

Congressional reporting requirements.

Affected Public: Not-for-Profit Institutions.

Annual Burden Hours: 1,060.

Number of Respondents: 265.

Responses Per Respondent: 1.

Average Burden Per Response: 4 hours.

Frequency: On occasion.

Respondents are community members of restoration advisory boards or

technical review committees requesting technical assistance to

interpret scientific and engineering issues regarding the nature of

environmental hazards at an installation. This assistance will assist

communities in participating in the cleanup process. The information,

directed by 10 U.S.C. 2705, will be used to determine the eligibility

of the proposed project, begin the procurement process to obtain the

requested products or services, and determine the satisfaction of

community members of restoration advisory boards and technical review

committees receiving the products and services.

Comments on these requirements should be submitted to the Office of

Information and Regulatory Affairs, OMB, 715 17th Street, N.W.,

Washington, DC 20503, marked ``Attention Desk Officer for Department of

Defense.'' Copies should be sent to the Office of the Deputy Under

Secretary for Environmental Security/Cleanup, 3400 Defense Pentagon,

Washington, DC 20301-3400. Comments may also be submitted

electronically by sending electronic mail (e-mail) to:

[email protected].

When the Department of Defense promulgates the Final Rule, the

Department will respond to comments by OMB or the public regarding the

information collection provisions and recordkeeping requirements of the

rule.

List of Subjects in 32 CFR Part 203

Administrative practice and procedure, Technical assistance, Public

participation, Environmental protection--restoration, Federal buildings

and facilities, Organization and functions (Government agencies).

It is proposed to amend Title 32 of the Code of Federal

Regulations, Chapter I, Subchapter M, by adding part 203 to read as

follows:

PART 203-TECHNICAL ASSISTANCE FOR PUBLIC PARTICIPATION (TAPP) IN

DEFENSE ENVIRONMENTAL RESTORATION ACTIVITIES

Sec.

203.1 Authority.

203.2 Purpose and availability of referenced material.

203.3 Definitions.

203.4 Selected option.

203.5 TAPP process.

203.6 Cost Principles.

203.7 Eligible applicants.

203.8 Ineligible applicants.

203.9 Evaluation criteria.

203.10 Submission of application.

203.11 Eligible activities.

203.12 Ineligible activities.

203.13 Technical assistance for public participation provider

qualifications.

203.14 Procurement.

203.15 RAB/TRC reporting requirements.

203.16 Method of payment.

203.17 Record retention and audits.

203.18 Availability of information.

203.19 Conflict of interest and disclosure requirements.

Appendix A to Part 203--Technical Assistance for Public

Participation Application Request Form.

Authority: 10 U.S.C. 2705.

[[Page 68190]]

Sec. 203.1 Authority.

Part 203 is issued under the authority of section 2705 of Title 10,

United States Code. In 1994, Congress authorized the Department of

Defense to develop a program to facilitate public participation by

providing technical assistance to local community members of TRCs and

RABs (section 326 of the National Defense Authorization Act for Fiscal

Year 1995, P.L. 103-337). In 1996, Congress revised this authority

(section 324 of the National Defense Authorization Act for Fiscal Year

1996, P.L. 104-112). It is pursuant to this revised authority, which is

codified as new subsection (e) of section 2705, that the Department of

Defense issues this part.

Sec. 203.2 Purpose and availability of referenced material.

(a) This part establishes the Technical Assistance for Public

Participation (TAPP) program for the Department of Defense. It sets

forth policies and procedures for providing technical assistance to

community members of TRCs and RABs established at DoD facilities. This

part sets forth the procedures for the Department of Defense to accept

and evaluate TAPP applications, to procure the assistance desired by

community members of RABs and TRCs, and to manage the TAPP program.

These provisions are applicable to all applicants/recipients of

technical assistance as specified under the selected option discussed

in Sec. 203.4.

(b) Any reference to documents made in this part necessary to apply

for TAPP (e.g., the Office of Management and Budget (OMB) Circulars or

DoD forms) are available through the DoD installation, the military

department headquarters, of from the Department of Defense, Office of

the Deputy Under Secretary of Defense for Environmental Security

(DUSD(ES)), 3400 Defense Pentagon, Washington, DC 20301-3400.

Sec. 203.3 Definitions.

As used in this part, the following terms shall have the meaning

set forth:

Affected. Means subject to an actual or potential health or

environmental threat arising from a release or a threatened release at

an installation where the Secretary of Defense is planning or

implementing environmental restoration activities including a response

action under the Comprehensive Environmental Response Compensation and

Liability Act as amended (CERCLA), corrective action under the Resource

Conservation and Recovery Act (RCRA), or other such actions under

applicable Federal or State environmental restoration laws. This would

include actions at active, closing, realigning, and formerly used

defense installations. Examples of affected parties include individuals

living in areas adjacent to installations whose health is or may be

endangered by the release of hazardous substances at the facility.

Applicant. Means any group of individuals that files an application

for TAPP, limited by this proposal rule to community members of the RAB

or TRC.

Application. Means a completed formal written request for TAPP that

is submitted to the installation commander or to the identified

decision authority designated for the installation. A completed

application will include a TAPP project description.

Assistance provider. Is an individual, group of individuals, or

company contracted by the Department of Defense to provide technical

assistance under the Technical Assistance for Public Participation

program announced in this rule.

Assistance provider's project manager. Means the person legally

authorized to obligate the organization receiving a TAPP purchase order

to the terms and conditions of the Department of Defense's regulations

and the contract, and designated by the recipient to serve as the

principal contact with the Department of Defense.

Community member. Is a member of the RAB or TRC who is also a

member of the affected community. For the purpose of this rule,

community members to do not include local, State, or Federal government

officials acting in any regulatory capacity, nor does it include DoD

members.

Community point of contact. Is the community member of the RAB or

TRC designated in the TAPP application as the focal point for

communications with the Department of Defense regarding the TAPP

procurement process. The community point of contact is responsible for

completing the reporting requirements specified in Sec. 203.15 of this

part.

Contract. Means a written agreement between the installation or

other instrumentality of the Department of Defense and another party

for services or supplies necessary to complete the TAPP project.

Contracts include written agreements and subagreements for professional

services or supplies necessary to complete the TAPP projects,

agreements with consultants, and purchase orders.

Contract officer. Means the Federal official designated to manage

the contract used to fulfill the TAPP request by the RAB or TRC.

Contractor. Means any party (e.g., Technical advisor) to whom the

installation or other instrumentality of the Department of Defense

awards a contract. In the context of this rule, it is synonymous with

assistance provider.

Cost estimate. Is an estimate of the total funding required for the

assistance provider to complete the TAPP project.

DoD Component. Includes, but is limited to, the services (Army,

Navy, Air Force, Marines, and Reserves) and those defense agencies with

an environmental restoration program.

DoD Installation. Means a faculty that is owned or operated or

otherwise possessed by a department, agency, or instrumentality of the

United States Department of Defense. In the context of this rule,

formerly used defense sites (FUDS) are included within the definition

of a DoD Installation.

EPA. Means the United States Environmental Protection Agency.

Formerly Used Defense Site (FUDS). Is a site that has been owned

by, leased to, possessed by, or otherwise under the jurisdiction of the

Department of Defense. The FUDS program does not apply to those sites

outside the U.S. jurisdiction.

Firm fixed price contract. Is a contract wherein funding is fixed,

prior to the initiation of a contract, for an agreed upon service or

product.

Purchase order. Is an offer by the Government to buy supplies or

services from a commercial source, upon specified terms and conditions,

the total cost of which cannot exceed the small purchase limit of

$100,000. Purchase orders are governed by Federal Acquisition

Regulations, 48 CFR part 13, and the Simplified Acquisition Threshold

Procedures.

Restoration Advisory Board (RAB). Is a group of individuals

comprised of representatives of the Department of Defense, community

members, and EPA and/or State officials formed to act as a forum for

discussion and exchange of information between agencies and the

community, and to provide an opportunity for stakeholders to review

progress and participate in dialogue with the decision makers. RAB

policy was outlined in the joint guidelines published by EPA and the

Department of Defense on September 27, 1994, and is described in 32 CFR

part 202.\1\ \2\

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\1\ 32 CFR part 202 is the proposed rule on RAB development. It

was published on August 6, 1996 (61 FR 40764-40772).

\2\ Copies of the Federal Register publication for 32 CFR part

202 are available from the Department of Defense, Office of the

Deputy Under Secretary of Defense (Environmental Security).

---------------------------------------------------------------------------

Statement of Work. Is that portion of a contract which describes

the actual

[[Page 68191]]

work to be done by means of specifications or minimum requirements,

quantities, performance dates, time and place of performance, and

quality requirements. It is key to any procurement because it is the

basis for the contractor's response and development of proposed costs.

TAPP approval. Signifies that the Department of Defense has

approved the eligibility of the proposed TAPP project and will

undertake an acquisition to obtain the services specified in the TAPP

application submitted by the RAB or TRC. The government will conduct

the acquisition in accordance with all of the applicable rules and

requirements of the Federal Acquisition Regulations and the Simplified

Acquisition Procedures. Approval does not constitute an agreement to

direct an award to a specific source if such an action would be

contrary to Federal Acquisition Regulations.

TAPP project description. Is a discussion of the assistance

requested that includes the elements listed in Sec. 203.10 of this

part. The project description should contain sufficient detail to

enable the Department of Defense to determine the nature and

eligibility of the project, identify potential providers and estimate

costs, and prepare a statement of work to begin the procurement

process.

Technical assistance. Encompasses those activities specified in

Sec. 203.11 that will contribute to the public's ability to participate

in the decision-making process by improving the public's understanding

of overall conditions and activities. Technical assistance may include

interpreting information such as: the nature of the hazard, including

potential health impacts posed by onsite conditions; remedial

investigation and feasibility studies; records of decision; remedial

designs; selection and construction of remedial actions; operation and

maintenance; significant removal actions; and training on technical

issues of particular concern to the community members of the RAB or

TRC. Technical assistance does not include those activities prohibited

under Sec. 203.12, such as litigation or underwriting legal actions;

political activity; generation of new primary data such as well

drilling and testing, including split sampling; reopening final

Department of Defense decisions or conducting disputes with the

Department of Defense; or epidemiological or health studies, such as

blood or urine testing.

Technical Review Committee (TRC). Is a group formed to meet the

requirements of 10 U.S.C. 2705(c), Department of Defense Environmental

Restoration Program. Primarily functioning to review installation

restoration documents, these committees are being expanded and modified

at installations where interest or need necessitates the creation of a

RAB.

Sec. 203.4 Selected option.

(a) The Department of Defense will issue purchase orders to

technical assistance, facilitation, training, and other public

participation assistance providers subject to the purchase limit per

order as resources continue to be available. If multiple purchase

orders are needed to assist community members of a particular RAB or

TRC, the combined sum of these purchase orders cannot exceed $100,000

or, during any one year, the lesser of $25,000 or 1 percent of the

installation's projected restoration cost to complete. Note that these

limitations refer to the maximum allowable technical assistance funding

per RAB/TRC. Resources available within a given year may vary. These

limitations apply unless a waiver is granted by the Deputy Under

Secretary of Defense (Environmental Security) (DUSD(ES)). The Deputy

Under Secretary of Defense (Environmental Security) may waive the

$100,000 total and $25,000 annual limitations, as appropriate, to

reflect the complexity of response action, the nature and extent of

contamination at the installation, the level of activity at the

installation, projected total needs as identified by the TAPP

recipient, the size and diversity of the affected population, and the

ability of the TAPP recipient to identify and raise funds from other

sources.

(b) Community members of the RAB/TRC will provide a description of

the services it is requesting (TAPP Project Description) and, if

desired, the names of one or more proposed technical assistance

providers to the DoD RAB Co-Chair, who will ensure the application will

be submitted to the installation commander or other designated

authority and to the appropriate DoD contracting office. Technical

assistance providers proposed by the community members of a RAB or TRC

at each DoD facility that meet the minimum set of organizational

qualifications guidelines provided by the Department of Defense in

Sec. 203.13 of this part will be added to the governments list of

bidders for the proposed procurement.

Sec. 203.5 TAPP process.

This section provides an overview of the TAPP process. Specific

details referred to in this section can be found in subsequent sections

of this rule.

(a) TAPP funding. The DoD budget for support to RABs and TRCs will

be established annually. Each DoD Component will be authorized to

allocate funds on the basis of the number of RABs or TRCs in operation

or in planning stages at the beginning of the fiscal year. Each DoD

Component will then make these funds available to their individual

installations or facilities on an equitable basis, considering a number

of factors related to the restoration program at the installation and

its impact upon the community. These factors include, but are not

limited to:

(1) Closure status.

(2) Budget.

(3) Installation restoration program status.

(4) Presence (or absence) of alternate funding.

(5) Relative risk.

(6) Type of task to be funded.

(7) Community concern.

(8) Available funding.

(b) Identification of proposed TAPP project. Eligible applicants of

RABs and TRCs, established in Sec. 203.7 and Sec. 203.8 of this part,

should determine whether a TAPP project is required to assist the

community members of the RAB or TRC to interpret information regarding

the nature and extent of contamination or the proposed remedial

actions. Eligibility requirements for TAPP projects are described in

Sec. 203.11 and Sec. 203.12 of this part. In keeping with the

requirements of 10 U.S.C. 2705(e), the RAB or TRC must be able to

demonstrate that the technical expertise necessary for the proposed

TAPP project is not available through the Federal, State, or local

agencies responsible for overseeing environmental restoration at the

installation, or that the selection of an alternate provider will

contribute to environmental restoration activities and the community

acceptance of such activities. In addition, the Department of Defense

encourages the RAB or TRC to seek other available avenues of assistance

prior to submitting a request for TAPP in order to preserve limited

TAPP resources. These sources include tasks appropriate for the

installation contractor, the procurement of volunteer services from

local universities or other experts, or assistance from state and local

health and environmental organizations.

(c) TAPP project request. Upon the determination that other sources

of assistance are unavailable or unlikely to contribute to the

community acceptance of environmental restoration activities at the

installation, the RAB or TRC should notify the installation of its

intent to pursue TAPP, and should prepare a

[[Page 68192]]

formal request specifying the type of assistance required and, if

desired, one or more sources for this assistance. Details concerning

this request are stated in Sec. 203.10 of this part. The RAB or TRC

must certify to the Department of Defense that the TAPP request

represents a request by a majority of the community members of the RAB

or TRC. The RAB or TRC should ensure that the request meets the

eligibility requirements specified in Sec. 203.11 and Sec. 203.12 of

this part. Furthermore, the RAB or TRC should outline specific criteria

for the Department of Defense to consider in the selection of a

provider (such as knowledge of local environmental conditions or

specific technical issues, a prior work history within the study area

which has relevant specific circumstances or unique challenges, or

other relevant expertise or capabilities), keeping in mind that

providers must meet the minimum technical qualifications outlined in

Sec. 203.13 of this part. The formal request should be submitted to the

installation commander or designated decision authority, either

directly, or through the DoD member of the RAB. The installation

commander, or other designated decision authority, will review the

proposed project to determine whether the proposed project conforms to

the eligibility requirements.

(d) Purchase orders. Upon receipt of a completed TAPP request, the

installation will begin the procurement process necessary to obtain the

desired services by means of a purchase order or will forward the

request to the contracting authority designated by the DoD component to

act for that installation. The government is required to follow the

rules and regulations for purchase orders as outlined in the Federal

Acquisition Regulations. As a result, the government cannot direct

awards to a specified supplier unless the procurement is under $2,500,

and then only if the cost is comparable to other suppliers. For

procurements over $2,500 but under $100,000, the acquisition is

reserved for small businesses, unless there is a reasonable expectation

that small businesses could not provide the best scientific and

technological sources consistent with the demands of the proposed

acquisition for the best mix of cost, performance, and schedules.

Furthermore, the award must be on a competitive basis. In addition to

proposing potential providers, the application for technical assistance

should indicate specific criteria or qualifications that are deemed

necessary by the RAB/TRC for the completion of the project to their

satisfaction. This information will be used to assist the Department of

Defense in preparing a bidders list. The Department of Defense will

solicit bids from those providers meeting the criteria and will select

a provider offering the best value to the government. Should the

procurement process identify more than one qualified respondent or fail

to identify any qualified respondents, the RAB/TRC will be consulted

prior to the award of a purchase order. If the Department of Defense

determines that the TAPP request represents an eligible project for

which no funds are available, it will ask the RAB or TRC to specify

whether the project should be reconsidered upon the availability of

additional funds.

(e) Reporting requirements. The applicant must make copies of

delivered reports available to the Department of Defense and comply

with the reporting requirements established in Sec. 203.15 of this

part.

Sec. 203.6 Cost principles.

(a) Non-profit contractors must comply with the cost principles in

OMB Circular A-122.\3\

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\3\ Copies may be obtained from EOP Publications, 725 17th NW,

WEOB, DC 20503.

---------------------------------------------------------------------------

(b) Profit-making contractors and subcontractors must comply with

the cost principles in the Federal Acquisition Regulation (48 CFR part

31).

Sec. 203.7 Eligible applicants.

Eligible applicants, except as provided in Sec. 203.8 of this part,

are community members of RABs or TRCs established in accordance with 32

CFR part 202 (61 FR 40764-40772). Furthermore, the RABs or TRCs must be

comprised of at least three community members to ensure community

interests are broadly represented. The applicant must certify that the

request represents the wishes of a simple majority of the community

members of the RAB or TRC. Certification includes, but is not limited

to, the results of a roll call vote of community members of the RAB or

TRC documented in the meeting minutes. Other requirements of the

application are detailed in Sec. 203.10 of this part.

Sec. 203.8 Ineligible applicants.

(a) The following groups and organizations are ineligible to

receive technical assistance for public participation under this

program:

(1) Corporations that are not incorporated for the specific purpose

of representing affected individuals at a defense installation.

(2) Academic institutions.

(3) Political subdivisions (e.g., townships and municipalities).

(b) Paragraph (a) of this section does not preclude qualified

technical assistance providers that fall under these categories from

receiving a purchase order from the government to supply TAPP project

services or products.

Sec. 203.9 Evaluation criteria.

The Department of Defense will begin the TAPP procurement process

only after it has determined that all eligibility and responsibility

requirements listed in Sec. 203.6, Sec. 203.7, and Sec. 203.8 of this

part are met, and after review of the specific provider qualifications

as submitted in the narrative section of the application. In addition,

the proposed TAPP project must meet the eligibility criteria as

specified in Sec. 203.11 and Sec. 203.12 of this part. Projects that

fail to meet those requirements relating to the relevance of the

proposed project to the restoration activities at the installation will

be denied.

Sec. 203.10 Submission of application.

The applicant must submit a TAPP application to begin the TAPP

procurement process. The application form is included as Appendix A of

this part and can be obtained from the DoD installation, the military

department headquarters, or directly from the Department of Defense.\4\

The applications will not be considered complete until the following

data elements have been entered into the form:

---------------------------------------------------------------------------

\4\ Copies may be obtained from the Department of Defense,

Office of the Deputy Under Secretary of Defense (Environmental

Security).

---------------------------------------------------------------------------

(a) Installation.

(b) Source of TAPP request (name of RAB or TRC).

(c) Certification of majority request.

(d) RAB/TRC contact point for TAPP project.

(e) Project title.

(f) Project type (e.g., data interpretation, training, etc.).

(g) Project purpose and description (descriptions, time and

locations of products or services desired).

(h) Statement of eligibility of project.

(i) Proposed provider, if known.

(j) Specific qualifications or criteria for provider.

Sec. 203.11 Eligible activities.

(a) TAPP procurements should be pursued by the RAB or TRC only to

the extent that Federal, State, or local agencies responsible for

overseeing environmental restoration at the facility do not have the

necessary technical expertise for the proposed project, or the

[[Page 68193]]

proposed technical assistance will contribute to the efficiency,

effectiveness, or timeliness of environmental restoration activities at

the installation and is likely to contribute to community acceptance of

those activities.

(b) TAPP procurements may be used to fund activities that will

contribute to the community's ability to participate in the decision-

making process by improving the community's understanding of overall

conditions and activities. Specifically, TAPP procurements may be used

to obtain technical assistance in interpreting information with regard

to: the nature of the hazard, including potential health impacts posed

by onsite conditions; remedial investigation and feasibility study;

record of decision; remedial design; selection and construction of

remedial action; operation and maintenance; or a significant removal

action at an installation where the Secretary of Defense is planning or

implementing environmental restoration activities. Also included within

additional activities for purposes of enhancing public participation

are those activities such as training on technical issues of particular

concern to the community members of the RAB or TRC.

Sec. 203.12 Ineligible activities.

The following activities are ineligible for assistance under this

program:

(a) Litigation or underwriting legal actions such as paying for

attorney fees or paying for a technical assistance provider to assist

an attorney in preparing legal action or preparing for and serving as

an expert witness at any legal proceeding regarding or affecting the

site.

(b) Political activity and lobbying in accordance with OMB Circular

A-122.

(c) Other activities inconsistent with the cost principles stated

in OMB Circular A-122, ``Cost Principles for Non-Profit

Organizations.''

(d) Generation of new primary data such as well drilling and

testing, including split sampling.

(e) Reopening final DoD decisions such as the Records of Decision

(see limitations on judicial review of remedial actions under the

Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA) Sec. 113(h)) or conducting disputes with the Department of

Defense.

(f) Epidemiological or health studies, such as blood or urine

testing.

Sec. 203.13 Technical assistance for public participation provider

qualifications.

(a) A technical assistance provider must possess the following

credentials:

(1) Demonstrated knowledge of hazardous or toxic waste issues and/

or laws.

(2) Academic training in a relevant discipline (e.g., biochemistry,

toxicology, environmental sciences, engineering, law).

(3) Ability to translate technical information into terms

understandable to lay persons.

(b) A technical assistance provider should possess the following

credentials:

(1) Experience working on hazardous or toxic waste problems.

(2) Experience in making technical presentations.

(3) Demonstrated writing skills.

(4) Previous experience working with affected individuals or

community groups or other groups of individuals.

(c) The technical assistance provider's qualifications will vary

according to the type of assistance to be provided. Community members

of the RAB/TRC may suggest additional provider qualifications as part

of the application for technical assistance. These additional

qualifications may be used by the Department of Defense to target the

most appropriate providers during the procurement process. Examples of

such criteria could include prior work in the area, knowledge of local

environmental conditions or laws, specific technical capabilities, or

other relevant expertise.

Sec. 203.14 Procurement.

Procurements will be conducted as purchase orders in accordance

with the Federal Acquisition Regulations 48 CFR part 13. Under these

procedures, procurements not exceeding $100,000 are reserved

exclusively for small businesses, and will be conducted as competitive

procurements. Procurements below a value of $2,500 are considered

``micro-purchases.'' These procurements do not require the solicitation

of bids and may be conducted at the discretion of the contracting

officer.

Sec. 203.15 RAB/TRC reporting requirements.

The RAB or TRC shall ensure that all final written documents

developed by a technical advisor for the RAB or TRC using resources

provided under this rule are disseminated by providing copies of such

documents to the DoD installation for the local information

repository(ies). Furthermore, the community point of contact of the RAB

or TRC must submit a report, to be provided to the installation and to

DUSD(ES), to enable the Department of Defense to meet DoD reporting

requirements to Congress. This report should include a description of

the TAPP project, a summary of services and products obtained, and a

statement regarding the overall satisfaction of the community members

of the RAB or TRC with the quality of service and/or products received.

Sec. 203.16 Method of payment.

The simplified acquisition procedures set forth in Federal

Acquisition Regulations 48 CFR part 13, require purchase orders to be

conducted on a firm-fixed-price basis, unless otherwise authorized by

agency procedures. The Department of Defense anticipates all TAPP

awards to be firm-fixed-price procurements.

Sec. 203.17 Record retention and audits.

The recipient contractor(s) shall keep and preserve detailed

records in connection with the contract reflecting acquisitions, work

progress, reports, expenditures and commitments, and indicate the

relationship to established costs and schedules.

Sec. 203.18 Technical assistance provider reporting requirements.

Each technical assistance provider shall submit progress reports,

financial status reports, and a final report to the Department of

Defense for the TAPP project as specified by the specific purchase

order agreement. The final report shall document TAPP project

activities over the entire period of support and shall describe the

achievements with respect to stated TAPP project purposes and

objectives.

Sec. 203.19 Conflict of interest and disclosure requirements.

The Department of Defense shall require each prospective contractor

on any contract to provide, with its bid or proposal:

(a) Information on its financial and business relationship with the

installation or any/all potentially responsible parties (PRPs) at the

site, and with their parent companies, subsidiaries, affiliates,

subcontractors, contractors, and current clients or attorneys and

agents. This disclosure requirement encompasses past and anticipated

financial and business relationships, including services related to any

proposed or pending litigation, with such parties.

(b) Certification that, to be best of its knowledge and belief, it

has disclosed such information or no such information exists.

(c) A statement that it shall disclose immediately any such

information discovered after submission of its bid or

[[Page 68194]]

after award. The contracting officer shall evaluate such information

and shall exclude any prospective contractor if the contracting officer

determines the prospective contractor's conflict of interest is

significant and cannot be avoided or otherwise resolved. After award,

the contract will be terminated, if the contracting officer determines

the conflict of interest is significant and cannot be avoided or

resolved.

(d) Contractors and subcontractors may not be Technical Advisors to

recipient groups at the same installation for which they are doing work

for the Federal or State government or any other entity.

BILLING CODE 5000-04-M

[[Page 68195]]

[GRAPHIC] [TIFF OMITTED] TP27DE96.015

[[Page 68196]]

[GRAPHIC] [TIFF OMITTED] TP27DE96.016

[[Page 68197]]

Dated: December 12, 1996.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 96-32130 Filed 12-26-96; 8:45 am]

BILLING CODE 5000-04-C