[Federal Register Volume 60, Number 175 (Monday, September 11, 1995)]
[Proposed Rules]
[Pages 47134-47137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22088]
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[[Page 47135]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 15 and 32
[FRL-5219-6]
RIN 2030-AA38
Suspension, Debarment and Ineligibility for Contracts,
Assistance, Loans and Benefits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In this notice, EPA proposes to remove Part 15
(``Administration of the Clean Air Act and the Clean Water Act with
Respect to Contracts, Grants, and Loans--List of Violating
Facilities'') from Title 40 of the Code of Federal Regulations. EPA
also proposes that 40 CFR Part 32, Governmentwide Debarment and
Suspension (Nonprocurement) and Governmentwide Requirements for
Drugfree Workplace (Grants), be amended simultaneously by adding
procedures needed to administer the ineligibility provisions of the
Clean Air Act (CAA), Clean Water Act (CWA), and EO 11738.
DATES: Comments must be submitted on or before November 13, 1995.
ADDRESSES: Comments may be mailed to Robert Meunier, Director,
Suspension and Debarment Division (3902F), U.S. Environmental
Protection Agency, 401 M St. SW, Washington, DC 20460, or delivered to
EPA, Fairchild Building, 499 South Capitol St., room 217 between 8 a.m.
and 4:30 p.m.
Comments and data may also be submitted electronically by
electronic mail (e-mail) to: meunier.robert@epamail.epa.gov. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect in 5.1 file format or ASCII file
format. All comments and data in electronic form must be identified by
the docket number [FRL-5219-6]. No Confidential Business Information
(CBI) should be submitted through e-mail. Electronic comments on this
proposed rule may be filed online at many Federal Depository Libraries.
Additional information on electronic submissions can be found below.
FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, Director,
Suspension and Debarment Division (3902F), 401 M Street S.W.,
Washington, DC 20460. Telephone: (202) 260-8025.
SUPPLEMENTARY INFORMATION:
A. Background
Last year, the EPA Administrator decided to reorganize the former
Office of Enforcement (OE), now the Office of Enforcement and
Compliance Assurance (OECA). As part of that reorganization,
administrative responsibility for the Part 15 CAA and CWA contractor
listing program was transferred from OECA to the Office of
Administration and Resources Management (OARM) so that all EPA
debarment functions would be conducted by a single office.
On October 5, 1994, EPA published technical amendments to 40 CFR
Parts 15 and 32 to reassign specific functions from OECA to OARM. (See,
59 Fed. Reg. 50691). In the preamble to those amendments, EPA notified
the public of its intention to consolidate the two rules into a single
rule in 1995.
These proposed amendments would eliminate Part 15 in its entirety,
and amend EPA's suspension and debarment rule at Part 32 by adding the
few procedures needed to implement the statutorily mandated
ineligibility provisions of the CAA and the CWA.
In addition to significantly reducing regulatory text, the proposed
rule will reduce the confusion that occurred because EPA had one set of
procedures for mandatory and discretionary facility ineligibility (Part
15), and another for discretionary suspension and debarment actions
(Part 32). When the proposed amendments become final, pre-conviction
cases involving violations of the CAA and CWA will, like cases
involving other environmental statutes, be candidates for suspension
and proposed debarment under 40 CFR Part 32 and 48 CFR Subpart 9.4.
The following regulatory provisions will be affected under this
proposed rule.
Part 15 of Title 40 of the Code of Federal Regulations will be
removed.
Part 32 of Title 40 of the Code of Federal Regulations will be
amended to incorporate references to the CAA and CWA ineligibility
provisions in the title, table of contents, and authorities section.
General references will be added to the purpose clauses at
Sec. 32.100(e) and the definitions of ``facility'' and ``CAA or CWA
ineligibility'' will be added to the definitions at Sec. 32.105.
New paragraphs (d) are added to Secs. 32.110 (Coverage) and 32.115
(Policy), to indicate that CAA and CWA ineligibility are within the
scope of this rule; and the statutory authority of agency heads to
grant exceptions to CAA and CWA ineligible facilities has been added to
the exceptions provisions at Sec. 32.215(a) according to the standards
set forth in the statute.
A significant addition being proposed is a new paragraph (c) in the
settlement provisions of Sec. 32.315. The new text would state that, as
part of a comprehensive settlement agreement and before a judgment of
conviction is entered, the EPA debarring official may certify that the
condition giving rise to the CAA or CWA violation has been corrected.
Such certifications would be issued only if the Debarring Official has
the same type of documentation which would be required to obtain
reinstatement (under the new Sec. 32.321) after a post-conviction CAA
or CWA facility ineligibility.
A new Sec. 32.321 is proposed which prescribes the procedures for
seeking reinstatement of facility eligibility.
Finally, Secs. 32.330 and 32.425 are proposed to be removed from
this rule as part of EPA's effort to eliminate unnecessary regulatory
provisions. These sections were part of EPA's original 1982 assistance
debarment regulation and were retained when EPA published its version
of the OMB Nonprocurement Governmentwide Debarment and Suspension Rule
(Common Rule) in 1988. Although the Common Rule does not prescribe a
``reconsideration'' procedure, Sec. 32.320(c) authorizes a debarred
respondent to request, at any time, that the debarment decision be
reversed or that the period or scope of a debarment be reduced. Even
without this provision, EPA believes that the debarring and suspending
official has inherent authority to reconsider a suspension or debarment
decision.
The proposed removal of the Secs. 32.330 and 32.425 reconsideration
provisions will not affect a respondent's opportunity to file an appeal
under Secs. 32.335 and 32.430. Although also not prescribed in the OMB
Common Rule, the seldom used Part 32 appeal provisions are being
retained because they provide an inexpensive procedure for challenging
EPA suspension and debarment determinations.
A record has been established for this rulemaking under docket
number ``[FRL-5219-6]'' (including comments and data submitted
electronically as described below). A public version of this record,
including printed paper versions of electronic comments, which does not
include any information claimed as CBI, is available for inspection
from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays.
The public record is located in Room 217 of the EPA Fairchild Building
located at 499 South Capitol Street, Washington, DC.
[[Page 47136]]
Electronic comments can be sent directly to EPA at:
meunier.robert@epamail.epa.gov
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in ADDRESSES at the beginning of
this document.
Rulemaking Analysis
B. Executive Order 12866
This rulemaking has been determined not to be significant under EO
12866. However, it has been sent to the Office of Management and Budget
for review for consistency with the OMB Common Rule.
C. Regulatory Flexibility Act
The EPA certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this rule does
not contain information collection requirements for the approval of OMB
under 44 U.S.C. 3501 et seq.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. The proposed rule imposes no
enforceable duties on any of these governmental entities or the private
sector. This proposed rule does not change the current statutory and
regulatory duties that arise from conditions of federal assistance
which, as defined by UMRA, do not constitute a ``Federal
intergovernmental mandate'' or a ``Federal private sector mandate.''
Thus, today's proposed rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The proposed rule would eliminate the separate procedures
in 40 CFR Part 15 for administering the Clean Air Act and Clean Water
Act ineligibility provisions, and incorporate simplified ineligibility
procedures in EPA's existing nonprocurement suspension and debarment
rules (40 CFR Part 32). None of these amended procedures would impose
significant or unique regulatory requirements on small governments.
Therefore, the proposed rule is not subject to section 203 of the UMRA.
List of Subjects in 40 CFR Parts 15 and 32
Administrative practice and procedure, Debarment and suspension,
Ineligibility.
Dated: August 21, 1995.
Alvin Peschowitz,
Acting Assistant Administrator, Office of Administration and Resources
Management.
For the reasons set out in the preamble, 40 CFR Parts 15 and 32 are
proposed to be amended as follows:
1. Part 15 is removed.
2. The title of Part 32 is revised to read as follows:
PART 32--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS);
CLEAN AIR ACT AND CLEAN WATER ACT INELIGIBILITY OF FACILITIES IN
PERFORMANCE OF FEDERAL CONTRACTS, GRANTS AND LOANS
3. The authorities citation for part 32 is revised to read as
follows:
Authority: EO 12549; 41 U.S.C. 701 et seq.; 7 U.S.C. 136 et
seq.; 15 U.S.C. 2601 et seq.; 20 U.S.C. 4011 et seq.; 33 U.S.C. 1251
et seq.; 42 U.S.C. 300f, 4901, 6901, 7401, 9801 et seq.; EO 12689;
EO 11738; Pub. L. 103-355 Sec. 2455.
4. Section 32.100 is amended by adding new paragraph (e) as
follows:
Sec. 32.100 Purpose.
* * * * *
(e) Facilities ineligible to provide goods, materials, or services
under Federal contracts, loans or assistance, pursuant to Section 306
of the Clean Air Act (CAA) or Section 508 of the Clean Water Act (CWA)
are excluded in accordance with the terms of those statutes.
Reinstatement of a CAA or CWA ineligibile facility may be requested in
accordance with the procedures at Sec. 32.321.
5. Section 32.105 is amended by adding in alphabetical order the
following definitions.
Sec. 32.105 Definitions.
* * * * *
CAA or CWA ineligibility. The status of a facility which, as
provided in section 306 of the Clean Air Act (CAA) and section 508 of
the Clean Water Act (CWA), is ineligible to be used in the performance
of a Federal contract, subcontract, loan, assistance award or covered
transaction. Such ineligibility commences upon conviction of a facility
owner, lessee, or supervisor for a violation of section 113 of the CAA
or section 309(c) of the CWA, which violation occurred at the facility.
The ineligibility of the facility continues until such time as the EPA
Debarring Official certifies that the condition giving rise to the CAA
or CWA criminal conviction has been corrected.
[[Page 47137]]
Facility. Any building, plant, installation, structure, mine,
vessel, floating craft, location or site of operations at which, or
from which, a Federal contract, subcontract, loan, assistance award or
covered transaction is to be performed. Where a location or site of
operations contains or includes more than one building, plant,
installation or structure, the entire location or site shall be deemed
the facility unless otherwise limited by EPA.
* * * * *
6. Section 32.110 is amended by adding a new paragraph (d) to read
as follows:
Sec. 32.110 Coverage.
* * * * *
(d) Except as provided in Sec. 32.215 of this Part, Federal
agencies shall not use a CAA or CWA ineligible facility in the
performance of any Federal contract, subcontract, loan, assistance
award or covered transaction.
* * * * *
7. Section 32.115 is amended by revising paragraph (d) to read as
follows:
Sec. 32.115 Policy.
* * * * *
(d) It is EPA policy to exercise its authority to reinstate CAA or
CWA ineligible facilities in a manner which is consistent with the
policies in paragraphs (a) and (b) of this section.
* * * * *
8. Section 32.215 is amended by revising paragraph (a) to read as
follows:
Sec. 32.215 Exception provision.
* * * * *
(a) Any agency head, or authorized designee, may except any Federal
contract, subcontract, loan, assistance award or covered transaction,
individually or as a class, in whole or in part, from the prohibitions
otherwise applicable by reason of a CAA or CWA ineligibility. The
agency head granting the exception shall notify the EPA Debarring
Official of the exception as soon, before or after granting the
exception, as may be practicable. The justification for such an
exception, or any renewal thereof, shall fully describe the purpose of
the contract or covered transaction, and show why the paramount
interest of the United States requires the exception.
9. Section 32.215 is further amended by adding a new paragraph (b)
to read as follows:
Sec. 32.215 Exception provision.
* * * * *
(b) The EPA Debarring Official is the official authorized to grant
exceptions under this section for EPA.
10. Section 32.315 is amended by adding a new paragraph (c) to read
as follows:
Sec. 32.315 Settlement and voluntary exclusion.
* * * * *
(c) The EPA Debarring Official may consider matters regarding
present responsibility, as well as any other matter regarding the
conditions giving rise to alleged CAA or CWA violations in anticipation
of entry of a plea, judgment or conviction. If, at any time, it is in
the interest of the United States to conclude such matters pursuant to
a comprehensive settlement agreement, the EPA Debarring Official may
conclude the debarment and ineligibility matters as part of any such
settlement, so long as he or she certifies that the condition giving
rise to the CAA or CWA violation has been corrected.
11. Section 32.321 is added to read as follows:
Sec. 32.321 Reinstatement of facility eligibility.
(a) A written petition to reinstate the eligibility of a CAA or CWA
ineligible facility may be submitted to the EPA Debarring Official. The
petitioner bears the burden of providing sufficient information and
documentation to establish, by a preponderance of the evidence, that
the condition giving rise to the CAA or CWA conviction has been
corrected. If the material facts set forth in the petition are
disputed, and the Debarring Official denies the petition, the
petitioner shall be afforded the opportunity to have additional
proceedings as provided in Sec. 32.314(b).
(b) A decision by the EPA Debarring Official denying a petition for
reinstatement may be appealed under Sec. 32.335.
Sec. 32.330 [Removed]
12. Section 32.330 is removed.
Sec. 32.425 [Removed]
13. Section 32.425 is removed.
[FR Doc. 95-22088 Filed 9-8-95; 8:45 am]
BILLING CODE 6560-50-P
