[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: 
[email protected].

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]
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