[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Rules and Regulations]
[Pages 28755-28757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14117]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 15 and 32
[FRL-5513-1]
RIN 2030-AA38
Suspension, Debarment and Ineligibility for Contracts,
Assistance, Loans and Benefits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rule removes Part 15 (``Administration of the Clean Air
Act and the Clean Water Act with Respect to Contracts, Grants, and
Loans--List of Violating Facilities'') from Title 40 of the Code of
Federal Regulations. This rule also amends 40 CFR Part 32,
Governmentwide Debarment and Suspension (Nonprocurement) and
Governmentwide Requirements for Drugfree Workplace (Grants), by adding
procedures needed to administer the ineligibility provisions of the
Clean Air Act (CAA), Clean Water Act (CWA), and EO 11738.
EFFECTIVE DATE: June 6, 1996.
FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, EPA Suspending and
Debarring Official, (3901F), 401 M Street, SW., Washington, DC 20460.
Telephone: (202) 260-8030; or E-Mail to:
meunier.robert@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
On September 11, 1995, EPA published a Notice of Proposed
Rulemaking (See 60 FR 47135) proposing to eliminate regulations at 40
CFR Part 15 governing the listing, and removal from the list, of
facilities rendered ineligible to participate in Federal grants,
contracts and loans pursuant to Section 306 of the Clean Air
[[Page 28756]]
Act (CAA) and Section 508 of the Clean Water Act (CWA). The Notice
proposed to simultaneously amend 40 CFR Part 32, EPA's regulations
implementing the Governmentwide nonprocurement common rule for
suspension and debarment, to incorporate provisions relating to
facility ineligibility and reinstatement pursuant to the CAA and CWA.
The Notice provided a 60 day period ending November 13, 1995, to
consider public comments on the proposed rule. No comments were
received.
The publication of this final rule completes EPA's administrative
consolidation of its statutory ineligibility and discretionary
debarment authorities within a single office, the Office of
Administration and Resources Management (OARM). All EPA debarment,
ineligibility and/or reinstatement actions will now be subject to
consistent policy development and flexible procedures applicable to
OMB's Governmentwide suspension and debarment system.
Rulemaking Analysis
B. Executive Order 12866
This rulemaking has been determined not to be significant under EO
12866. However, it has been sent to the Office of Management and Budget
for review for consistency with the OMB Common Rule.
C. Regulatory Flexibility Act
The EPA certifies that this rule does not have a significant
economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this rule does
not contain information collection requirements for the approval of OMB
under 44 U.S.C. 3501 et seq.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The rule imposes no enforceable
duties on any of these governmental entities or the private sector.
This rule does not change the current statutory and regulatory duties
that arise from conditions of federal assistance which, as defined by
UMRA, do not constitute a ``Federal intergovernmental mandate'' or a
``Federal private sector mandate.'' Thus, today's rule is not subject
to the requirements of sections 202 and 205 of the UMRA.
EPA has determined that this final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The rule eliminates the separate procedures in 40 CFR Part
15 for administering the Clean Air Act and Clean Water Act
ineligibility provisions, and incorporates simplified ineligibility
procedures in EPA's existing nonprocurement suspension and debarment
rules (40 CFR Part 32). None of these amended procedures would impose
significant or unique regulatory requirements on small governments.
Therefore, the rule is not subject to section 203 of the UMRA.
List of Subjects in 40 CFR Parts 15 and 32
Environmental protection, Administrative practice and procedure,
Debarment and suspension; Ineligibility.
Dated: May 23, 1996.
Alvin M. Pesachowitz,
Acting Assistant Administrator, Office of Administration and Resources
Management.
For the reasons set out in the preamble, under the authority at 33
U.S.C. 1361(a), 40 CFR Chapter I is amended as follows:
1. Part 15 is removed.
2. The title of Part 32 is revised to read as follows:
PART 32--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS);
CLEAN AIR ACT AND CLEAN WATER ACT INELIGIBILITY OF FACILITIES IN
PERFORMANCE OF FEDERAL CONTRACTS, GRANTS AND LOANS
3. The authority citation for Part 32 is revised to read as
follows:
Authority: E.O. 12549; 41 U.S.C. 701 et seq.; 7 U.S.C. 136 et
seq.; 15 U.S.C. 2601 et seq.; 20 U.S.C. 4011 et seq.; 33 U.S.C. 1251
et seq.; 42 U.S.C. 300f, 4901, 6901, 7401, 9801 et seq.; E.O. 12689;
E.O. 11738; Pub. L. 103-355 Sec. 2455.
4. Section 32.100 is amended by adding new paragraph (e) as
follows:
Sec. 32.100 Purpose.
* * * * *
(e) Facilities ineligible to provide goods, materials, or services
under Federal contracts, loans or assistance, pursuant to Section 306
of the Clean Air Act (CAA) or Section 508 of the Clean Water Act (CWA)
are excluded in accordance with the terms of those statutes.
Reinstatement of a CAA or CWA ineligible facility may be requested in
accordance with the procedures at Sec. 32.321.
5. Section 32.105 is amended by adding in alphabetical order the
following definitions.
Sec. 32.105 Definitions.
* * * * *
CAA or CWA ineligibility. The status of a facility which, as
provided in section 306 of the Clean Air Act (CAA) and section 508 of
the Clean Water Act (CWA), is ineligible to be used in the performance
of a Federal contract, subcontract, loan, assistance award or covered
transaction. Such ineligibility commences upon conviction of a facility
owner, lessee, or supervisor for a
[[Page 28757]]
violation of section 113 of the CAA or section 309(c) of the CWA, which
violation occurred at the facility. The ineligibility of the facility
continues until such time as the EPA Debarring Official certifies that
the condition giving rise to the CAA or CWA criminal conviction has
been corrected.
* * * * *
Facility. Any building, plant, installation, structure, mine,
vessel, floating craft, location or site of operations at which, or
from which, a Federal contract, subcontract, loan, assistance award or
covered transaction is to be performed. Where a location or site of
operations contains or includes more than one building, plant,
installation or structure, the entire location or site shall be deemed
the facility unless otherwise limited by EPA.
* * * * *
6. Section 32.110 is amended by adding a new paragraph (d) as
follows:
Sec. 32.110 Coverage.
* * * * *
(d) Except as provided in Sec. 32.215 of this part, Federal
agencies shall not use a CAA or CWA ineligible facility in the
performance of any Federal contract, subcontract, loan, assistance
award or covered transaction.
7. Section 32.115 is amended by revising paragraph (d) to read as
follows:
Sec. 32.115 Policy.
* * * * *
(d) It is EPA policy to exercise its authority to reinstate CAA or
CWA ineligible facilities in a manner which is consistent with the
policies in paragraphs (a) and (b) of this section.
8. Section 32.215 is revised to read as follows:
Sec. 32.215 Exception provision.
(a) EPA may grant an exception permitting a debarred, suspended, or
voluntarily excluded person, or a person proposed for debarment under
48 CFR part 9, subpart 9.4, to participate in a particular covered
transaction upon a written determination by the agency head or an
authorized designee stating the reason(s) for deviating from the
Presidential policy established by Executive Order 12549 and
Sec. 32.200. However, in accordance with the President's stated
intention in the Executive Order, exceptions shall be granted only
infrequently. Exceptions shall be reported in accordance with
Sec. 32.505(a).
(b) Any agency head, or authorized designee, may except any Federal
contract, subcontract, loan, assistance award or covered transaction,
individually or as a class, in whole or in part, from the prohibitions
otherwise applicable by reason of a CAA or CWA ineligibility. The
agency head granting the exception shall notify the EPA Debarring
Official of the exception as soon, before or after granting the
exception, as may be practicable. The justification for such an
exception, or any renewal thereof, shall fully describe the purpose of
the contract or covered transaction, and show why the paramount
interest of the United States requires the exception.
(c) The EPA Debarring Official is the official authorized to grant
exceptions under this section for EPA.
9. Section 32.315 is amended by adding a new paragraph (c) to read
as follows:
Sec. 32.315 Settlement and voluntary exclusion.
* * * * *
(c) The EPA Debarring Official may consider matters regarding
present responsibility, as well as any other matter regarding the
conditions giving rise to alleged CAA or CWA violations in anticipation
of entry of a plea, judgment or conviction. If, at any time, it is in
the interest of the United States to conclude such matters pursuant to
a comprehensive settlement agreement, the EPA Debarring Official may
conclude the debarment and ineligibility matters as part of any such
settlement, so long as he or she certifies that the condition giving
rise to the CAA or CWA violation has been corrected.
10. Section 32.321 is added to Part 32 to read as follows:
Sec. 32.321 Reinstatement of facility eligibility.
(a) A written petition to reinstate the eligibility of a CAA or CWA
ineligible facility may be submitted to the EPA Debarring Official. The
petitioner bears the burden of providing sufficient information and
documentation to establish, by a preponderance of the evidence, that
the condition giving rise to the CAA or CWA conviction has been
corrected. If the material facts set forth in the petition are
disputed, and the Debarring Official denies the petition, the
petitioner shall be afforded the opportunity to have additional
proceedings as provided in Sec. 32.314(b).
(b) A decision by the EPA Debarring Official denying a petition for
reinstatement may be appealed under Sec. 32.335.
Sec. 32.330 [Removed]
11. Section 32.330 is removed.
Sec. 32.425 [Removed]
12. Section 32.425 is removed.
[FR Doc. 96-14117 Filed 6-5-96; 8:45 am]
BILLING CODE 6560-50-P
