[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: [email protected]. 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: 
[email protected]
    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