[Federal Register Volume 63, Number 21 (Monday, February 2, 1998)]
[Rules and Regulations]
[Pages 5255-5268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2394]


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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: Final rule.

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SUMMARY: Pursuant to the National Defense Authorization Act (NDAA) of 
1996, the Department of Defense (DoD) is finalizing a rule to provide 
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 DoD environmental restoration 
activities at military installations and formerly used defense sites 
within the United States and its territories.

EFFECTIVE DATE: This rule is effective February 2, 1998.

FOR FURTHER INFORMATION CONTACT:
Patricia Ferrebee or Marcia Read, Office of the Deputy Under Secretary 
of Defense for Environmental Security, 3400 Defense Pentagon, 
Washington, D.C., 20301-3400, telephone (703) 697-5372 or (703) 697-
7475.

SUPPLEMENTARY INFORMATION: The official record for this rulemaking is 
kept in a paper format. Accordingly, DoD has transferred all electronic 
or digital comments received into paper form and placed them into the 
official record, with all of the comments received in writing.
    The Department of Defense's responses to comments have been 
incorporated in a response to comments document, which has been placed 
into the official record for this rulemaking. The major comments and 
responses are discussed in the Response to Comments section of this 
preamble.
    Any person wishing to review the official record, or be provided 
copies of documents in the official record, for this rulemaking should 
contact Patricia Ferrebee at Office of the Deputy Under Secretary of 
Defense for Environmental Security, 3400 Defense Pentagon, Washington, 
D.C. 20301-3400, in writing, or by telephone at (703) 697-5372.

Preamble Outline

I. Legal Authority
II. Background
III. Summary of Significant Changes from Proposed Rule
IV. Description of the Final Rule and Responses to Major Comments
    A. TAPP Process
    B. Eligible Applicants
    C. Eligible Activities
    D. Technical Assistance for Public Participation Provider 
Qualifications
    E. Submission of Application
    F. Appeals Process
V. Administrative Requirements/Compliance with Executive Order
    A. Regulatory Impact Analysis Under Executive Order 12866
    B. Regulatory Flexibility Analysis
    C. Paperwork Reduction Act
    D. Unfunded Mandates

I. Legal Authority

    This rule is issued under the authority of Section 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. Section 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 and 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.
    Funding for this technical assistance program will come from the 
Environmental Restoration Accounts established for Army, Navy, and Air 
Force for operating installations, and from the DoD Component's base 
closure account for transferring or closing installations. For Defense 
Agencies the Defense-Wide environmental restoration account will be the 
source of funds for assistance at operating installations. The 
Environmental Restoration Account for Formerly Used Defense sites will 
fund technical assistance at formerly used defense sites.

[[Page 5256]]

II. Background

    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 by the Environmental 
Protection Agency (EPA) 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 technical assistance 
funding.
    The Department of Defense has issued policy for establishing RABs 
at its installations and formerly used defense sites. 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 (DERP). 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 agency 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 
or realignment of an installation involves the transfer of property to 
the community. On September 27, 1994, the Department of Defense and 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 the National Defense Authorization 
Act (NDAA) for 1995 (61 FR 40764-40772).
    The proposed 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 among 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 to aid public participation in Section 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 Section 324 of NDAA-96. This 
final rule establishes regulations for DOD Components to provide 
technical assistance to RABs and TRCs, and details the specific 
requirements for obtaining this assistance consistent with this new 
authority. Proposed regulations regarding the characteristics, 
composition, and establishment of RABs were previously published on 
August 6, 1996 (61 FR 40764-40772).
    The Department of Defense published a proposed rule, Technical 
Assistance for Public Participation (TAPP) in Defense Environmental 
Restoration Activities, on December 27, 1996 (61 FR, 68174-68197). 
Public comments on this proposed rule were considered and, where 
appropriate, incorporated into this final rule.

III. Summary of Significant Changes From Proposed Rule

    The substance of this final rule does not differ significantly from 
the proposed rule published on December 27, 1996. Principal among the 
changes is the addition of an appeals process, described more fully in 
Section IV of this preamble and located in Section 203.19 of the final 
rule. Because of devolvement of the Defense Environmental Restoration 
Account, the authority to grant waivers, in section 203.4, has been 
delegated to the DoD Component Secretary, or equivalent, for the 
installation in question. In addition, the Department of Defense has, 
in section 203.10, clarified the types of projects that will be 
eligible for TAPP funding.

IV. Description of the Final Rule and Responses to Major Comments

    This rule finalizes the proposed rule ``Technical Assistance for 
Public Participation (TAPP) in Defense Environmental Restoration 
Activities'' (61 FR, 68174-68197). This section explains the DoD's 
final action, based on the rationale presented in the proposed rule and 
the DoD's review of the public comments.
    To facilitate the reader's review of this final rule and to 
streamline the overall structure, this section also contains the DoD's 
responses to the most significant comments after each of the topics 
discussed. If a particular section does not contain a response to 
comment section, then either no comments were received on that topic, 
or the Department of Defense has chosen to place its response in the 
background document entitled ``Technical Assistance for Public 
Participation Response to Comments Background Document.'' This 
background document contains a complete discussion of the DoD's 
responses to comments and can be found in the docket for this 
rulemaking. This document provides a complete record of the public 
comments followed by the DoD's responses.

A. TAPP Process

    An overview of the process by which community members of RABs and 
TRCs can obtain technical assistance is provided in Sections 203.4 and 
203.5 of the final rule. The process begins with an evaluation by the 
community members of RABs and TRCs of their technical assistance needs 
and whether these needs can be met by existing avenues of support. 
These other available sources of assistance can include the 
installation's restoration contractors, installation or other DoD 
personnel, RAB or TRC members, volunteer sources from within the 
community, or state, local, or federal personnel responsible for the 
oversight of restoration activities at the installation. If these 
sources cannot provide the needed assistance, or if the selection of an 
alternate provider will contribute to environmental restoration 
activities and the community acceptance of such activities, the 
community members of RABs and TRCs may submit to the installation a 
request for technical assistance. This request should specify in as 
much detail as possible the type of assistance requested, the timeframe 
for which the assistance is required, and, if known, one or more 
potential providers.
    Based upon the details provided in the request, the installation 
commander or other designated authority will determine whether the 
project meets the eligibility requirements outlined in this final rule. 
If the project is not approved, the RAB/TRC will receive a written 
explanation for that decision. If the project is approved, the 
installation commander will forward the application to the appropriate 
contracting authority. The contracting authority will issue

[[Page 5257]]

purchase orders to obtain the desired technical assistance subject to 
certain funding limitations. 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 environmental 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. In 
addition, the funds to support RABs and TRCs and now TAPP derive from 
the same budget that funds installation environmental investigations 
and cleanup.
    The government is required to follow the rules and regulations for 
purchase orders as outlines in the Federal Acquisition Regulations 
(FAR) (48 CFR Part 13). 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 expection 
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. 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 a qualified respondent other 
than the proposed provider(s) identified by the RAB/TRC, 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.
    Community members of RABs and/or TRCs must comply with the 
reporting requirements established in Section 203.14 of this rule.
Response to Comments
    One commenter indicated that the language in the proposed rule 
seems to indicate that support is only to be provided for projects that 
will assist in improving public support of DoD cleanup projects. The 
commenter noted that the public may have alternate viewpoints on such 
issues as: the need for cleanup, risk levels, technology to be used, 
etc.
    The commenter believes that support should be provided to explore 
these issues as well, not just projects which validate DoD decisions.
    In response, the Department of Defense intends that support be 
provided to allow the RAB/TRC members to better understand and provide 
input into DoD's decision process, and does not agree with the 
commenter that the rule implies that support will be provided only for 
projects that validate DoD's position.
    Some commenters expressed concern that approval for TAPP projects 
goes through the installation commander.
    In response, the installation commander has ultimate authority for 
the installation restoration program at his/her installation, and the 
Department of Defense feels it is the responsibility of that commander 
(or other service-designated authority) to make the decisions affecting 
the installation's cleanup budget and its ability to meet cleanup goals 
and requirements. Each installation commander or designated authority 
will receive guidance to help determine approval processes for 
potential TAPP projects. In the event the RAB does not agree with the 
decision of the installation commander, it can appeal the decision 
through the appeals process outlined in section 203.19 of this final 
rule.
    Several commenters questioned the funding process to be used. For 
instance, one commenter inquired whether RABs would have access to a 
full year's allowance (presumably meaning the full annual funding 
amount of $25,000 or 1% of the installation's total projected 
environmental restoration cost-to-complete), even if the first project 
is less than that amount. Other commenters wanted to clarify whether 
approval would be subject to available funding, or if there was instead 
a ``guarantee'' of support. Finally, several commenters stated that 
TAPP support should be readily available, or projects could suffer 
while waiting.
    When RABs/TRCs identify a need for technical assistance, the 
Department of Defense will program funds for TAPP support. The sources 
of TAPP funding are the Environmental Restoration Accounts established 
for the DoD Components. Therefore, it competes with study, cleanup, and 
even RAB funding. The installations, with input from their RAB/TRCs, 
will have to determine how tradeoffs will be made between these 
important activities. It is DoD's intention that once a project is 
identified and approved, the procurement of a provider will occur as 
quickly as possible to avoid potential impacts on installation 
schedules. However, procurement of the assistance provider is subject 
to availability of funds.
    Each DoD Component will establish procedures for TAPP funding. They 
will not automatically set aside $25,000 or 1% of the installation's 
total projected environmental restoration cost-to-complete for each 
RAB/TRC for TAPP each year, because some RABs/TRCs may not need TAPP 
support. There are no restrictions to having more than one TAPP project 
a year as long as the annual limit of $25,000 or 1% of the 
installation's total projected environmental cost-to-complete is not 
exceeded.
    Commenters questioned whether the criteria established for 
obtaining technical support can ever be met. For example, the first 
criteria states that TRCs and RABs may request assistance only if they 
demonstrate 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. The 
commenter believes this argument will be difficult to make. 
Additionally, the commenter wants to know what is required to show that 
support isn't available through these sources? The commenter continued 
in his argument that the criteria for obtaining assistance were 
unlikely to be met. He stated that the criteria regarding enhancing the 
timeliness of restoration activities at the installation is certainly 
not helped by the involvement of a new contractor. Finally, the 
commenter stated that the final criterion that the technical assistance 
will contribute to community acceptance of the installation's 
restoration activities, is likely not to be met by bringing in outside 
opinion.
    In response, the criterion cited by the commenter was imposed by 
the NDAA of 1996 and are intended to conserve limited resources for 
TAPP funding and to encourage the use of all available resources. The 
Department of Defense anticipates that much of the technical expertise 
required by RABs will be available through existing installation 
environmental restoration contractors or through the regulatory and/or 
installation or other DoD personnel working on the program. The 
Department of Defense encourages the use of these resources to the 
maximum extent possible, and notes that commenters from some RABs were 
quite

[[Page 5258]]

vocal in their support for these avenues of support. Other sources of 
support, such as volunteer services from local universities or other 
experts or assistance from states and local health and environmental 
organizations, should also be considered to preserve limited TAPP 
resources. However, there may be circumstances, such as specific 
knowledge of local environmental conditions or knowledge of an 
alternative technology, which require expertise not available through 
Federal, State, or local oversight agencies. In these instances, the 
only requirement is that the RAB provide a statement in their request 
for technical assistance that states why their requirements cannot be 
met by those agencies. The Department of Defense also points out that 
the criterion noted above is one of two criteria for obtaining 
assistance, either one of which is sufficient. The full text of the 
second criterion cited by the commenter refers to enhancing the 
efficiency, effectiveness, or timeliness of environmental restoration 
activities. To that end, the Department of Defense believes that an 
informed RAB membership is better able to contribute to the restoration 
program than one unfamiliar with technical details.
    Finally the Department of Defense believes that community 
acceptance may be enhanced through the contributions of outside sources 
of expertise, particularly when that source can verify to the community 
that the proposed restoration activities advocated by the Department of 
Defense are appropriate. Community acceptance is greatly influenced by 
community understanding. Technical assistance is intended to increase 
the RAB's understanding of the DoD environmental restoration program so 
that they may make meaningful contributions to the process. As RAB 
input is incorporated into the restoration program, environmental 
restoration becomes a cooperative effort involving all stakeholders. 
Carefully defining the type of assistance needed will limit the 
possibility that the introduction of a new contractor will hinder 
rather than enhance community understanding.

B. Eligible Applicants

    Eligible applicants for TAPP 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 have 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.
Response to Comments
    Commenters requested clarification on the definition of community 
members of RABs or TRCs, specifically whether state and local 
government officials could be considered community members for purposes 
of this final rule.
    The Department of Defense considers state and local government 
employees on the RAB or TRC to have full membership in that body. 
However, for purposes of determining TAPP projects, the Department of 
Defense intends that RAB/TRB community members be limited to residents 
of the community affected by or potentially affected by the 
installation. In situations where community residents are also members 
of the Federal, state or local government, their participation in the 
TAPP process would not be excluded, provided they were not expressing 
opinions clearly derived from their status as government employees. As 
with the proposed RAB rule, however, the Department of Defense intends 
that the actual operations of individual RABs and TRCs be determined 
largely by the participants, and encourages each organization to 
develop its own guidelines for determining both membership at large and 
the subset of community members eligible to assist in the development 
of TAPP projects.

C. Eligible Activities

    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 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.
    The list of eligible activities, section 203.10, of this final rule 
has been expanded to clarify eligible projects and provide examples. 
The final rule now provides that eligible projects include those 
projects designed to:
    (1) Interpret technical documents, such as installation restoration 
program site investigation, engineering, and decision documents; risk 
assessments, including baseline and ecological risk assessments 
conducted by the installation; and health assessments, such as those 
conducted by Agency for Toxic Substances and Disease Registry (ATSDR).
    (2) Assess technologies.
    (3) Participate in relative risk evaluations.
    (4) Understand health implications.
    (5) Provide technical training, where appropriate.
Response to Comments
    Several commenters wanted the list of eligible projects expanded to 
include some form of community outreach and the ability to generate new 
or primary data. In response, DoD believes community outreach should 
not be a part of the TAPP program. Community outreach is a fundamental 
part of an installation's community relations program, and should be 
conducted within the context of that program. One mechanism used 
successfully by many installations is the development and publication 
of fact sheets or newsletters, providing important information to the 
general public about the installation's restoration program. This 
activity is funded by the installation's environmental restoration and 
Base Realignment and Closure (BRAC) funding, which covers 
administrative costs incurred by the RABs. The Department of Defense 
believes that the goal of the TAPP program is to enhance participation 
through increased understanding of the technical issues of the cleanup 
program, and maintains that the limited funding available for that 
purpose should be directed at that goal.
    The generation of new data is the responsibility of the lead 
agency--in this case the Department of Defense. Furthermore, the 
Department of Defense works closely with the regulatory agencies to 
develop investigation strategies to ensure potential hazards are 
adequately characterized. This consultation and coordination is an 
important part of the partnership the Department of Defense maintains 
with regulatory agencies as cleanup proceeds. If the RAB identifies a 
circumstance where additional data collection may be necessary, these 
concerns should be communicated to the Department of Defense, where the 
final decisions on the restoration program reside, or to the 
appropriate regulatory agencies if the Department of Defense is not 
responsive.

D. Technical Assistance for Public Participation Provider 
Qualifications

    The Department of Defense has determined that the technical 
assistance

[[Page 5259]]

providers must possess certain minimum credentials. These include:
    (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).
    (3) Ability to translate technical information into terms 
understandable by lay persons.
    In addition, technical assistance providers should posses the 
following credentials to ensure they will be qualified to assist the 
community members of RABs and TRCs in understanding the environmental 
restoration program:
    (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.
    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.
Response to Comments
    One commenter noted that non-profits and universities should be 
eligible TAPP contractors.
    In response, it was not the Department of Defense's intent to 
exclude qualified TAPP providers from eligibility, in either the 
proposed TAPP rule or this final rule. However, the use of purchase 
orders to obtain support does require the Department of Defense to 
follow procurement policies outlined in the FAR (48 CFR Part 13). 
Purchase orders are generally reserved for small businesses unless one 
of several situations apply. In circumstances where small businesses 
cannot be identified that meet the criteria for procurement, a contract 
can be awarded to a qualified bidder that is not a small business. 
Examples of such circumstances include situations where conflict of 
interest precludes otherwise acceptable small businesses from 
participation, where knowledge of specific technical capabilities or of 
specific proprietary technologies is required. The Department of 
Defense recognizes that in many instances, RAB requirements for support 
will specify criteria for the potential provider that may be met only 
by non-profits or universities, and envisions no difficulties in 
awarding procurements to these types of institutions. As part of the 
guidance under development for this program, the Department of Defense 
will provide information to assist RABs and the DoD contracting 
officers in determining appropriate circumstances for contracting with 
technical assistance providers that are not small businesses.

E. 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, 
Office of the Deputy Under Secretary of Defense for Environmental 
Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400, telephone 
(703) 697-5372 or (703) 697-7475.
    The applications will not be considered complete until the 
following data elements have been entered into the form:
    (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.
Response to Comments
    A few commenters argued that the application process is to complex. 
They noted that support might be required just to prepare the project 
description and/or the application.
    The principal requirement for the RABs in applying for technical 
assistance is too develop a project that meets their needs in 
understanding some aspect of the installation's restoration program. 
Once this need has been communicated to the Department of Defense, the 
government assumes the responsibilities for obtaining and monitoring 
the performance of the technical assistance provider. The application 
form merely formalizes the process the RABs should go through to 
develop their project requirements. Additional details, such as 
information about a potential technical assistance provider, are 
optional and are only intended to help speed up the procurement 
process.
    Other commenters stated that RABs and TRCs should have access to 
additional support, either through an additional purchase order or 
through access to third party expertise, such as could be provided by 
Technical Outreach Services to Communities (TOSC) providers, in order 
to determine the requirements for their TAPP project. (TOSC is a 
program of the Environmental Protection Agency's Hazardous Substance 
Research Centers to provide information, technical and educational 
training, workshops, and site assistance for communities and RABs 
dealing with hazardous substance issues.)
    In response, the Department of Defense believes the RABs, in 
concert with other members of the public, if necessary, are best 
positioned to determine their needs for technical support. The 
Department of Defense, State, and local government members of the RAB 
will be available for support in developing and preparing a TAPP 
request, should the RAB community members desire their input. 
Furthermore, guidance to assist communities and DoD installations with 
this program is currently under development by the Department of 
Defense and will be available to RAB members.
    One commenter stated that preparation of the TAPP request imposes 
too much burden on the RAB with no reimbursement for time and effort. 
The commenter believed that this effort should be an eligible expense.
    The Department of Defense reiterates that the TAPP request merely 
puts in writing the desires of the community members of the RAB to 
procure technical assistance. As such, the principal required 
information is a description of the proposed project. The Department of 
Defense has minimized the burden to community members of RABs/TRCs by 
developing a short application form and performing the contract 
administration.

F. Appeals Process

    Although not specifically raised as an issue by commenters, the 
Department of Defense recognizes that disputes can arise at several 
junctures in the TAPP process. Three situations in which disagreements 
could occur are:

[[Page 5260]]

    (a) The RAB/TRC may dispute the findings of the installation 
commander that the proposed TAPP project is ineligible, either because 
of the failure of the RAB to adequately consider alternate sources of 
assistance or because the project does not meet the eligibility 
criteria established in the final rule.
    (b) The RAB may dispute the findings of the contracting officer 
that (1) the preferred provider is inadequate, (2) the preferred 
provider is not cost effective, or (3) other providers identified in 
the acquisition process more clearly meet the requirements of the task.
    (c) After the selection of a provider, a dispute can arise because 
the government contracting officer and the RAB/TRC do no agree that the 
provider has met the terms of the procurement. In this situation, the 
process outlined in the FAR (48 CFR Part 46) would apply.
    There is a sincere desire by the Department of Defense to avoid 
disputes and to foster an atmosphere of cooperation between the RAB or 
TRC and the installation. Each DoD Component has a hierarchical 
organizational structure with clearly defined chains-of-command. In the 
event that disputes do occur, appeals will be considered within the 
chain-of-command, and, in general, will be resolved at the lowest 
possible level. The highest level of appeal will be at the DoD 
Component Deputy Assistant Secretary level with authority over the 
environmental restoration and BRAC environmental programs. In all 
cases, inherently governmental functions, such as records of decision, 
are not subject to appeal, and issues regarding contracting must be 
governed by the FAR (48 CFR Part 37).

V. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis Under Executive Order 12866

    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) and 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 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 will be documented 
in the public record.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 requires that agencies 
evaluate the effects of 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 FAR (48 CFR 
Part 13), 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. In 
keeping with the Simplified Acquisition Procedures (SAP), 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 
and the process outlined of Section 203.4 of this final rule, it is not 
expected that this rulemaking will have a significant economic impact 
on a substantial number of small entities and, therefore, no Regulatory 
Flexibility Analysis is necessary.

C. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act of 1995, the reporting and 
record keeping provisions of this final rule were submitted to the OMB 
for review under Section 3507(d) of the Act.
    The collection of information is necessary to identify products or 
services requested by community members of RABs/TRCs to aid in their 
participation in the Department of Defense's environmental restoration 
program, and to meet Congressional reporting requirements.
    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 help 
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 RABs/TRCs receiving the products and services.

D. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of the regulatory actions on State, Tribal, and local 
governments and the private sector. Under section 202 of the UMRA, the 
Department of Defense 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. When a written statement is 
needed, section 205 of the UMRA generally requires the Department of 
Defense to identify and consider a reasonable number of regulatory 
alternatives that achieve the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows the Department of Defense to adopt an

[[Page 5261]]

alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the Secretary publishes with the final rule 
an explanation why that alternative was not adopted. Before the 
Department of Defense 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, giving them meaningful and 
timely input into the development of the Department of Defense's 
regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements.
    The Department of Defense has determined that this rule does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and Tribal governments, in the 
aggregate, or the private sector in any one year. Thus, today's rule is 
not subject to the requirements of sections 202 and 205 of the UMRA.

List of Subjects in 32 CFR Part 203

    Administrative practice and procedure, Technical assistance, Public 
assistance programs, Environmental protection, Federal buildings and 
facilities, Organization and functions (Government agencies).

    Title 32 of the Code of Federal Regulations, Chapter I, Subchapter 
M, is amended to add 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  Major components of the TAPP process.
203.5  TAPP process.
203.6  Cost principles.
203.7  Eligible applicants.
203.8  Evaluation criteria.
203.9  Submission of application.
203.10  Eligible activities.
203.11  Ineligible activities.
203.12  Technical assistance for public participation provider 
qualifications.
203.13  Procurement.
203.14  RAB/TRC reporting requirements.
203.15  Method of payment.
203.16  Record retention and audits.
203.17  Technical assistance provider reporting requirements.
203.18  Conflict of interest and disclosure requirements.
203.19  Appeals process.
Appendix A to Part 203--Technical Assistance for Public 
Participation Application Request Form

    Authority: 10 U.S.C. 2705.


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 (DoD) to develop a program to facilitate public participation 
by providing technical assistance to local community members of 
Restoration Advisory Boards (RABs) and Technical Review Committees 
(TRCs) (section 326 of the National Defense Authorization Act for 
Fiscal Year 1995, Pub.L. 103-337). In 1996, Congress revised this 
authority (section 324 of the National Defense Authorization Act for 
Fiscal Year 1996, Pub.L. 104-112). It is pursuant to this revised 
authority, which is codified as new subsection (3) 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 installations in 
the United States and its territories. 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 
discussed in Sec. 203.4 of this part.
    (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 installations, the military 
department headquarters, or 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. 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. Any group of individuals that files an application for 
TAPP, limited by this part to community members of the RAB or TRC.
    Application. 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. 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 part.
    Assistance provider's project manager. The person legally 
authorized to obligate the organization executing a TAPP purchase order 
to the terms and conditions of the DoD's regulations and the contract, 
and designated by the provider to serve as the principal contact with 
the Department of Defense.
    Community Co-chair. The individual selected by the community 
members of the RAB/TRC to represent them.
    Community member. A member of the RAB or TRC who is also a member 
of the affected community. For the purpose of this part, community 
members do not include local, State, or Federal government officials 
acting in any official capacity.
    Community point of contact. 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. 203.14 of this 
part.
    Contact. 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.

[[Page 5262]]

Contracts include written agreements and subagreements for professional 
services or supplies necessary to complete the TAPP projects, 
agreements with consultants, and purchase orders.
    Contracting officer. The Federal official designated to manage the 
contract used to fulfill the TAPP request by the RAB or TRC.
    Contractor. Any party (e.g., Technical Assistance Provider) to whom 
the installation or other instrumentality of the Department of Defense 
awards a contract. In the context of this part, it is synonymous with 
assistance provider.
    Cost estimate. An estimate of the total funding required for the 
assistance provider to complete the TAPP project.
    DoD Component. The military services including the Army, Navy, 
Marine Corps, and Air Force and those defense agencies with an 
environmental restoration program.
    DoD Component Deputy Assistant Secretary. The individual in the 
office of the Secretary of the Army, Navy, Air Force responsible for 
making environmental decisions for their component or the director of 
the Defense Agencies.
    DoD Installation. A facility that is controlled or operated or 
otherwise possessed by a department, or agency of the United States 
Department of Defense within the United States and its territories. In 
the context of this part, formerly used defense sites (FUDS) are 
included within the definition of a DoD Installation.
    DoD RAB Co-chair. The individual selected by the installation 
commander, or equivalent, to serve as the installation co-chair of the 
RAB, represent DoD's interests, serve as liaison with community RAB 
members, and advocate RAB concerns within the installation staff.
    EPA. The United States Environmental Protection Agency.
    Firm fixed price contract. A contract wherein funding is fixed, 
prior to the initiation of a contract, for an agreed upon service or 
product.
    Formerly Used Defense Site (FUDS). 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 U.S. jurisdiction.
    Purchase order. 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 (FAR) (48 CFR part 13), and the Simplified Acquisition 
Procedures (SAP).
    Restoration Advisory Board (RAB). The RAB is a forum for 
representatives of the Department of Defense, local community, and EPA 
and/or State, local, and tribal officials to discuss and exchange 
information about the installation's environmental restoration program. 
The RAB provides stakeholders an opportunity make their views known, 
review progress and participate in dialogue with the decision makers.
    Statement of Work. That portion of a contract which describes the 
actual 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, subject 
to the availability of funds, 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 FAR and the SAP. Approval 
does not constitute an agreement to direct an award to a specific 
source if such an action would be contrary to the FAR.
    TAPP project description. A discussion of the assistance requested 
that includes the elements listed in Section 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. Those activities specified in Sec. 203.10 of 
this part that will contribute to the public's ability to provide input 
to the decision-making process by improving the public's understanding 
of overall conditions and activities. Technical assistance may include 
interpreting technical documents; assessing technologies; participating 
in relative risk evaluations, understanding health implications; and, 
training.
    Technical assistance does not include those activities prohibited 
under Section 203.11 of this part, 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 
DoD decisions or conducting disputes with the Department of Defense; or 
epidemiological or health studies, such as blood or urine testing.
    Technical Review Committee (TRC). A group comprised of the 
Department of Defense, EPA, State, and local authorities and a public 
representative of the community formed to meet the requirements of 10 
U.S.C. 2705(c), the 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  Major components of the TAPP process.

    (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 total projected environmental 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 DoD Component Secretary or equivalent for the installation in 
question. The $100,000 total and $25,000 annual limitations may be 
waived, 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 requested (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 is 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 
installation that meets the minimum set

[[Page 5263]]

of organizational qualifications guidelines provided by the Department 
of Defense in Sec. 203.12 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 part.
    (a) TAPP funding. Funding for this TAPP program will come from the 
Environmental Restoration Accounts established for Army, Navy, and Air 
Force for operational installations. The funding for Defense Agencies' 
operating installations will be from the Defense-Wide Environmental 
Restoration Account. Funding will be from the component's base closure 
account for transferring or closing installations. Funding for Formerly 
Used Defense Sites will come from the Environmental Restoration Account 
established for Formerly Used Defense Sites. After justification of the 
TAPP proposal, each DoD Component will make funds available from their 
individual installation's environmental restoration or BRAC accounts, 
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 posed by sites at the installation.
    (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 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 Secs. 203.10 and 203.11 
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 independent 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 sources of assistance prior to submitting a request for 
TAPP in order to preserve limited resources. These sources include 
DoD's installation restoration contractor, or other DoD contractors or 
personnel, EPA or state regulatory personnel, volunteer services from 
local universities or other experts, or assistance from state and local 
health and environmental organizations.
    (c) TAPP project request. The RAB or TRC should notify the 
installation of its intent to pursue TAPP 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 and should prepare a 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. 203.9 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 
Secs. 203.10 and 203.11 of this part. Furthermore, the RAB or TRC may 
outline additional 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. 203.12 of this part. The formal request 
should be submitted to the installation commander or designated 
decision authority, either directly, or through the DoD RAB Co-chair. 
The installation commander, or other designated decision authority, 
will review the proposed project to determine whether the proposed 
project conforms to the eligibility requirements. If the installation 
commander, or other designated authority, fails to approve the project 
request, the rationale for that decision will be provided to the RAB/
TRC in writing.
    (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 FAR (48 
CFR part 13). 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 may 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 a qualified respondent other than the proposed 
provider(s) identified by the RAB/TRC 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 assure that copies 
of delivered reports are made available to the Department of Defense 
and must comply with the reporting requirements established in 
Sec. 203.14 of this part.


Sec. 203.6  Cost principles.

    (a) Non-profit contractors must comply with the cost principles in 
OMB Circular A-122. Copies of the circular may be obtained from EOP 
Publications, 725 17th NW, NEOB, Washington, DC 20503.
    (b) For-profit contractors and subcontractors must comply with the 
cost principles in the FAR (48 CFR part 31).


Sec. 203.7  Eligible applicants.

    Eligible applicants are community members of RABs or TRCs. 
Furthermore, the RABs or TRCs must be

[[Page 5264]]

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. 203.9 of this part.


Sec. 203.8  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 Secs. 203.6, 203.7, and 203.9 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 Secs. 203.10 and 203.11 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 not be approved.


Sec. 203.9  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 DoD 
Component headquarters, or directly from the Department of Defense, 
Office of the Deputy Under Secretary of Defense for Environmental 
Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400. The 
applications will not be considered complete until the following data 
elements have been entered into the form:
    (a) Installation.
    (b) Source of TAPP request (names 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. 203.10  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 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 public's ability to provide advice to decision-makers 
by improving the public's understanding of overall conditions and 
activities. Categories of eligible activities include the following:
    (1) Interpret technical documents. The installation restoration 
program documents each stage of investigation and decision-making with 
technical reports that summarize data and support cleanup decisions. 
Technical assistance may be provided to review plans and interpret 
technical reports for community members of RABs and TRCs. These reports 
include, but are not limited to:
    (i) Installation restoration program site studies, engineering 
documents, such as site inspections, remedial investigations, 
feasibility studies, engineering evaluation and cost analyses, and 
decision documents (including records of decision);
    (ii) Risk assessments, including baseline and ecological risk 
assessments conducted by the installation; and
    (iii) Health assessments, such as those conducted by the Agency for 
Toxic Substances and Disease Registry (ATSDR).
    (2) Assess technologies. Technical assistance may be provided to 
help RAB/TRC community members understand the function and implications 
of those technologies selected to investigate or clean up sites at the 
installation.
    (3) Participate in relative risk site evaluations. Technical 
assistance may be provided to help RAB/TRC community members contribute 
to the relative risk evaluation process for specific sites.
    (4) Understand health implications. Technical assistance may be 
provided to help RAB/TRC community members interpret the potential 
health implications of cleanup levels or remedial technologies, or to 
explain the health implications of site contaminants and exposure 
scenarios.
    (5) Training, where appropriate. Technical trainers on specific 
restoration issues may be appropriate in circumstances where RAB/TRC 
members need supplemental information on installation restoration 
projects.


Sec. 203.11  Ineligible activities.

    The following activities are ineligible for assistance under the 
TAPP 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 as defined by 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) Section 113(h)) or conducting disputes with the Department of 
Defense).
    (f) Epidemiological or health studies, such as blood or urine 
testing.
    (g) Community outreach efforts, such as renting a facility and 
conducting public meetings, or producing and distributing newsletters.


Sec. 203.12  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).
    (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

[[Page 5265]]

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. 203.13   Procurement.

    Procurements will be conducted as purchase orders in accordance 
with the FAR (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. 203.14  RAB/TRC reporting requirements.

    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 member of the RAB or TRC with 
the quality of service and/or products received.


Sec. 203.15   Method of payment.

    The SAP set forth in FAR (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. 203.16  Record retention and audits.

    The recipient technical assistance providers 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. 203.17  Technical assistance provider reporting requirements.

    Each technical assistance provider shall submit progress reports, 
financial status reports, materials prepared for the RAB/TRC, and a 
final report to the DoD installation 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. 203.18  Conflict of interest and disclosure requirements.

    The Department of Defense shall require each prospective assistance 
provider on any contract to provide, with its bid or proposal:
    (a) Information on its financial and business relationship with the 
installation, RAB/TRC members, 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 the 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 after award. The 
contracting officer shall evaluate such information and shall exclude 
any prospective contractor if the contracting officer determines the 
prospective contractor has a potential conflict of interest that is 
both significant and cannot be avoided or otherwise resolved. If, after 
award, the contracting officer determines that a conflict of interest 
exists that is both significant and cannot be avoided or resolved, the 
contract will be terminated for cause.
    (d) Contractors and subcontractors may not be technical assistance 
providers to community members of RABs/TRCs at an installation where 
they are performing cleanup activities for the Federal or State 
government or any other entity.


Sec. 203.19  Appeals process.

    DoD Components will establish an appeals process to settle 
potential disputes between the Department of Defense and the public 
regarding certain decisions arising out of the TAPP process. The 
Department of Defense recognizes that the RAB/TRC may disagree with the 
findings of the installation commander that a proposed TAPP project is 
ineligible, either because of the availability of alternate sources of 
assistance or because the project does not meet the eligibility 
criteria established in this part. It is in the best interests of the 
Department of Defense and the community members of RABs and TRCs to 
anticipate and avoid disputes and to work cooperatively to resolve 
potential differences of opinion. However, in certain circumstances, 
the RAB/TRC community members may feel that their needs were not 
adequately served by the decisions of the Department of Defense. In 
this instance, the hierarchical structure and chain-of-command within 
each DoD Component will serve as the avenue for appeal. Appeals will be 
considered within the chain-of-command, and, in general, will be 
resolved at the lowest level possible. The highest level of appeal will 
be at the DoD Component Deputy Assistant Secretary level with authority 
over the DERP and BRAC environmental programs. Inherently governmental 
functions, such as the procurement process governed by the FAR, are not 
subject to appeal.

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    Dated: January 27, 1998.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-2394 Filed 1-30-98; 8:45 am]
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