[Federal Register Volume 61, Number 250 (Friday, December 27, 1996)]
[Proposed Rules]
[Pages 68184-68197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32130]
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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: ferrebpl@acq.osd.mil.
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
[[Page 68187]]
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,
[[Page 68188]]
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
[[Page 68189]]
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:
ferrebpl@acq.osd.mil.
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
