[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: [email protected].

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: 
[email protected].
    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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