United States
Environmental Protection
Agency
Office of
Ground-Water Protection
Washington. D.C. 20460
June 1987
Water
& EPA
Guidance For Applicants
For State Wellhead
Protection Program
Assistance Funds Under
The Safe Drinking Water Act
Appendix G: Wellhead Protection
Program-Applicable Regulations
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TABLE OF CONTENTS
PUBLICATION Page
Introduction i
EPA Form 5700-33, Application for ii
Federal Assistance • State and Local
Nonconstniction Programs
40 CFR Part 7 - Nondiscriminarion in iii
Programs Receiving Federal Assistance From the
Environmental Protection Agency
40 CFR Part 25 - Public Participation iv
Under the Resource Conservation and Recovery Act,
Safe Drinking Water Act and the Clean Water Act
40 CFR Part 29 - Intergovernmental v
Review of Environmental Protection
Agency Programs and Activities
40 CFR Part 30 - General Regulation vi
for Assistance Programs
40 CFR Part 32 - Debarment and vii
Suspension Under EPA Assistance Programs
40 CFR Part 33 - Procurement Under Assistance viii
Agreements
40 CFR Part 35 - Financial Assistance for Con- ix
tinuing Environmental Programs
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GUIDANCE FOR APPLICANTS FOR
STATE WELLHEAD PROTECTION PROGRAM ASSISTANCE RINDS
UNDER THE SAFE DRINKING WATER ACT
APPENDIX C: WELLHEAD PROTECTION PROGRAM - APPLICABLE
REGULATIONS
The Safe Drinking Water Act (SDWA) was enacted in 1974 to ensure safe public
drinking water supplies and to protect underground sources of drinking water from
contamination by well injection of fluids. The U.S. Environmental Protection Agency is
responsible for administering the SDWA and for implementing its various provisions,
including the promulgation of a series of drinking water standards.
The 1986 Amendments to the SDWA strengthen the Act's provisions for protecting
ground water. The Amendments established State Wellhead Protection (WHP) Programs
to protect the wellhead areas around public water wells and provide Federal financial
assistance to support State efforts to protect the ground water in these areas. Specifically,
section 1428 of the Amendments requires each State to develop and submit to EPA a
Program designed to protect wellhead areas supplying public water supply systems within
a State from contaminants that many have any adverse effect on the health of persons.
The Office of Ground-Water Protection, in EPA Headquarters, published the
document Guidance for Applicants for State Wellhead Protection Assistance Program
Funds Under the Safe Drinking Water Act to explain EPA's policies and procedures for
implementing the WHP assistance program. It also provides instructions to potential
applicants on developing State WHP Programs and funding applications, submitting their
State WHP Programs to EPA for approval, obtaining Federal financial assistance in the
form of grants and reporting to EPA on their progress and accomplishments.
This Document, Appendix C: Wellhead Protection Program-Applicable
Regulations, is a companion to the applicants' guidance. It contains EPA regulations
applicable to the WHP Program, and the assistance application form necessary to request a
Federal WHP Program grant. These two documents are meant to be used together in order
to develop approvable assistance applications and to administer properly the funds
awarded.
-i-C
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EPA FORM 5700-33 -
APPLICATION FOR FEDERAL ASSISTANCE - STATE AND
LOCAL NONCONSTRUCTION PROGRAMS
-11 -
-------
Form Approved
OMB No. 2030-0020
Approval expires 7-31-89
U.S. Environmental Protection Agency
Application for Federal Assistance
(State and Local Nonconstruction Programs)
General Instructions
Note: This application may be used to request financial assistance for either a grant or cooperative agreement. Where the term
"grant" is used the term "cooperative agreement" may be used interchangeably.
In completing this form, carefully read and follow all instructions. Many items are not self-explanatory. An incomplete or
incorrectly completed application may delay consideration of your application.
1. Use of this Application Form - This application form, with appro-
priate program narrative, is to be used for all EPA State and local
grant programs except for (a) construction, land acquisition or
land development projects and (b) single purpose one-time assis-
tance requests of less than J 10.000 which do not require a clearing-
house review, an environmental impact statement, or relocation of
persons, businesses, or farms. This form shall be used to request
continuation or refunding for approved grants originally submitted
on this form.
2. Submission - All applications for State and local government grants
(excluding construction grants) are to be addressed to the Grants
Administration Branch of the appropriate EPA Regional Office
Submit the original and three copies of the forms. When a request
is made for supplemental assistance, amendments, or changes to
an approved grant, submit only those pages which are appropriate.
J. Grant Regulations - Applicants must comply with all EPA grant
regulations. These regulations are published in Title 40, Chapter 1,
Subchapter B of the Code of Federal Regulations. A copy of these
regulations is included in the application kit.
4. Environmental Impact - The National Environmental Policy Act of
1969 requires that all agencies of the Federal Government prepare
detailed environmental statements on any actions to be taken
which significantly affect the quality of the human environment.
EPA procedures for the preparation of such statements are set
forth in Pan 6 of Title 40 of the Code of Federal Regulations (40
CFR 6.1 et seq.); a copy of the Environmental Assessment outline
is included in the appropriate application kits. As stated in the reg-
ulations, EPA requires an environmental assessment of certain
projects that are to be supported by agency grants. Those projects
which require such an assessment and the responsibilities of the
applicant in supporting and contributing to the conduct of the as-
sessment are set fonh in the regulations. EPA will use the environ-
mental assessment to either prepare an Environmental Impact
Statement which will identify and analyze in detail the impact of the
project on the quality of the environment, or a "Negative Declara-
tion" indicating that there will be no such impact.
5. Relocation Assistance and Real Property Acquisition - The Uni-
form Relocation Assistance and Real Property Acquisition Poli-
cies Act of 1970, P.L. 91-646, provides certain rights and benefits
to persons whose land is acquired or who are displaced- as the re-
sult of a Federal or a federally assisted project. If the project of a
State or local agency involves land acquisition or the displacement
of any person from his home, business, or farm, actions must be
taken to assure compliance with the ACL Land must be acquired in
accordance with the policies of Title III of the Act. Persons to be
displaced must be provided decent, safe, sanitary, and comparable
housing. Procedures for complying with the Act are set forth in
Pan 4 of Title 40 of the Code of Federal Regulations (40 CFR 4.1
et seq.). No project subject to the Act can be assisted without the
actions and assurances required by those regulations. Applicants
whose projects involve the acquisition of land or the displacement
of people should request a copy of 40 CFR Part 4 from the office
to which this application is submitted.
6. Rood Insurance - The Rood Disaster Protection Act of 1973 (PL
93-234) requires grantees, as a condition of receiving any form of
Federal assistance for acquisition (including real and nonexpend-
able personal property) or construction purposes in an identified
special flood area, to purchase flood insurance if the total cost of
insurable construction and acquisition is $10.000 or more. Special
flood hazard areas are identified on Flood Hazard Boundary Maps
and Flood Insurance Rate Maps issued by the Department of
Housing and Urban Development. Communities have one year af-
ter they are notified that they are a flood-prone community to enter
the flood insurance program, or no grant assistance may be
awarded for property in the flood hazard area. Specific require-
ments pertaining to the flood insurance program and to the re-
quired grantee purchase of flood insurance are set forth in 40 CFR
30.600(b).
7. Completing the Application:
a. This application consists of 5 parts: General Information,
Signature, and Certification on Part I, Project Approval
Information on Part II, Budget Information on Part III.
Project Narrative Statement on Part IV, and Assurances
on Pan V.
b. All dollar amounts requested in this application should be
rounded to the nearest dollar.
c. Applicants currently receiving grant assistance from EPA
who are applying for a continuation grant for an additional
budget period within the project period need not complete
an entirely new Project Narrative Statement. The narra-
tive should detail only changes in the narrative statement
applicable to the existing grant. The current grant should
be identified by its EPA Identification Number and Title
Evaluation of performance under the current grant will be
based on progress reports required by EPA assistance reg-
ulations or grant agreement. Continuation applications for
each budget period after the first will include, as a mini-
mum, a report of estimated financial expenditures, a tech-
nical progress report and a statement of the objectives to
be achieved during the next budget period. This informa-
tion, along with any other reports which may have been
required by the grant agreement, provides the basis for
evaluation of progress and for a decision regarding contin-
uation funding. Applications for amendments to existing
grants may be submitted on the Short Form, EPA Form
5700-31.
d. Project • The term "project" as used in this application
refers to the activities or tasks which will be supported in
part by grant funds requested in this application.
8. Preapplication Assistance - EPA preapplication assistance may be
obtained from the appropriate program office prior to application
submission.
EPA FORM 5700-33 (Rev. 11-86) Previous editions are obsolete.
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Form Approved
OMB No ,:030-CC20
Approval expires 7-31-39
US. ENVIRONMENTAL PROTECTION AGENCY
APPLICATION FOR FEDERAL ASSISTANCE
IState and Local Nonconitruction PrograrmI
General Inductions
Hote: This application may b* used to request financial assistance for either a grant or cooperative agreement. *here the term
"Brent" 13 used the term "cooperative agreement" rn«y oe used interchansieanly.
In completing Ihn form. CAREFULLY BEAD AND FOLLOW ALL INSTRUCTIONS. Many 'lems are not se'f e»olanatcry An .ncomoletf or
incorrectly completed application form may celav consideration of your application.
V Use of Ihii Application Form-Thu application lorm. with
Aprooriate program narrative. « 10 oe useo lor all EPA State ana
local grant programs eicept (or (a) construction, land acaunition or
land development proiectt and Ibl tingle purpose ore-time assistance
requests of less than S10.000 which do not require a clearinghouse
review, an environmental impact statement, or relocation of persons,
businesses or 'arms. Thu form shall be used also :o request
continuation or refunding, lor approved grants originally Submitted
on this lorm.
2. Submission—All applications for State and local government grants
{axcluding conirnjction gnntil are to be addressed to tne Grants
Admmist'ition Branch of the appropriate EPA Regional Office These
programs are listed below by title as used m cne Catalog of Federal
Domestic Assistance:
Air Pollution Control Program Gronts
Water Pollution Control Statewide interstate Program Grants
Water Pollution Control Auaw.de Waste Treatment Management
Planning Grants
Water Pollution Control State OoeratO' Training Grants
Air Pollution Control and Water Pollution Control Demonstration
Grant!
Environmental Protection Agencv Consolidated Program Support
Grantl
Statt Public Water System Supervision Program Grants.
Submit me original and three copies of the forms. When a request is
madt for supplemental assistance, amendments or changes :o an
approved grant, submit only those pages which are appropriate.
1 Grant Regulations— Applicants are expected to understand and
comply with all EPA grant regulations. These 'egulations are
published in Title 40. Chapter 1. Subchaptar 8 of tne Code of Federal
Regulations. A copy of these regulations is included m the application
kit.
4. Executive Order 12372 - All coordination procedures set torth in
Executive Order 12372 must be accomplished, as appropnale. when
submitting an application for assistance under an E?A Slate and Lo-
cal Nonconstruction Program. The catalog of Federal Domestic As-
sistance designates the coordination procedures lor the specific
EPA programs.
S. Environmental Impact—The National Environmental Policy Act of
1969 require* that all agencies of the Federal Government prepare
detailed environmental statements on any actions to be taken which
significantly affect the quality of the human environment. EPA
procedures for the preparation of such statements are sat forth in part
S of Title 40 of the Code of Federal Regulations 140 CFR 6. 1 et
leq.l: a copy of the Environmental Assessment outline is included in
the appropriate application kits. As stated in the regulations, EPA will
require an environmental assessment of certain prelects that are to be
supported by agency grants. Those proiecti which require sucn an
assessment and the responsibilities of the applicant in supporting and
contributing to the conduct of the assessment are set forth in the
regulations. The environmental assessment will result in the prepara-
tion by EPA of an Environmental Impact Statement identifying and
analyzing in detail the impact of the project on the quality 'of the
environment or a "Negative Declaration" indicating that there will be
no such impact.
8. Relocation Assistance and Reel Property Acquisition—The Uni-
form Relocation Assistance and Real Property Acquisition Policies
Act of 1970. P.L. 91-646. provides certain rights and benefits to
persons whose land is acquired or who are displaced as :he result of a
Federal or a 'eaerally assisred protect If the protect of i State or local
agency nvc'ves land acquisition or the disolacement ol any person
from his home, business or farm, actions must be taken to assure
compliance with ihe Act. Land must be acquired >n accordance with
the policies ol Title HI of the Act. Persons to be displaced must be
provided decent sate, sanitary and comparable rousing ?-oceaures
'or complying with me ACT are set lortn m Pan * ol T.tie 40 ol the
Code of Federal Regulations (40 CFR 4 1 ft tea.) No oioiect suoiect
to the Act can oe assisted without the actions and assurances icnuired
by those regulations. Applicants whose protects involve the acquisi-
tion of land or me displacement ot people shoulo request a copy of
40 CFR 41 et seq. from the office to which this application n
submitted
7. Flood Insurance - The Flood Disaster Protection Act ol 1973
(P.L. 93-234) requires grantees, as a condition ol receiving any lorm
ol Federal assistance lor acquisition or construction ourposes
(including real and -nonexpendaole personal property) in an
identified special nood area, to purchase flood insurance il the '.otai •
cost ol msurable construction and acquisition is S10COO or more.
Special flood hazard areas are identified on Flood Hazard Boundary
Maps and Flood Insurance Rate Maps issued by the Department of
Housing and Urban Development. Communities have one year after'
notification ol identification as a Hood-prone community to enter ;he
flood insurance program or no grant assistance may be awarded lor
property in the flood hazard area. Specific requirements pertaining
to the flood insurance program and to the required grantee
purchase of nood insurance are set lorth in 40 CFR 30.600(b).
3. Completing the Application:
a. This application consists of 5 parts General Information.
Signature and Certification on Pan I. Protect Approval
Information on Part II. Budget Information on Part III, P'O|ect,'
Narrative Statement on Part IV. and Assurances on Part V
b. All dollar amounts requested m this application should be
rounded to the nearest dollar
c. Applicants currently receiving grant assistance from EPA who
are applying for a continuation grant for an additional budget
period within tne protect period need not complete an entirely
new Protect Narrative Statement. The narrative should detail
only changes m rne narrative statement applicable to tne
enisling grant. The current grant should be identified by its
EPA Identification Number and Tirlg. Evaluation of perfor-
mance under the current grant will be based on progress
reports required by EPA Grant Regulations or grant agreement.
Continuation applications for each budget period after the first
will include, as a minimum, a report of estimated financial
expenditures, a technical progress report and a statement of
ihe obiectives to be achieved during the next budget period.
This information, along with any other reports which may have
been required by the grant agreement, provides the basis for
evaluation of progress and for a decision regarding continu-
ation funding. Applications tor amendments to existing grants
may be submitted on the Short Form. EPA Form 5700-31
9. Project—The term "project" as used in this application form refers
to total undertaking which will be supported in part bv grant funds
requested m this application.
lO.Pre-AppJication Assistance— EPA preapplication assistance may be
ootamed from tne appropriate program office p-ior to application
submission
EPA Form 5700-33 (Rev. 11-86) Previous editions are obsolete.
-------
OMB ACTrovml No. 0346-0008
FEDERAL ASSISTANCE
1. TYPE
Of
SUBMISSION
D NOTICE OF INTENT (OPTIONAU
D PREAPPUCATION
D APPLICATION
2. APPU-
CANTS
APPLI-
CATION
IDENTV
HER
I. NUMBER
b. DATE
19
3 / STATE
APPU-
CATION
IDENTV
RER
HOTS. TO IE
ASSIGNED
§Y JTATE
NUMBER
b. DATE
ASSIGNED
19
4. LEGAL APPLICANT/RECIPIENT
t. Appicant NOTM
b. OrpMnteltton UnK
e. S*Mt/P.O. Box
Idly
•.Cowny
g. ZIP Coo*
h. Comae* Pvraon (N*mt
t Ttlrftaitt No.)
5. EMPLOYER IDENTIFICATION NUMBER (EIN)
a.
PRO-
GRAM
(Fm» CFDA)
NUMBER
MULTIPLE D
b. TITLE
7. TITLE OF APPLICANTS PROJECT (UM MCflon IV * 9* tann to prwrtd* t mfnrmy d^u»Bo«i of V*
6. TYPE OF APPLICANT/RECIPIENT
£x»r Offrofnau letur \ \
9. AREA OF PROJECT IMPACT (Ntnta afaaa. ,
10 ESTIMATED NUMBER
OF PERSONS BENEFITING
11. TYPE OF ASSISTANCE
o—<•
e-o
tin
PROPOSED FUNDING
FEDERAL
b. APPLICANT
C. STATE
(t LOCAL
OTHER
TOM
CONGRESSIONAL DISTRICTS OF:
14. TYPE OF APPLICATION
t. APPLICANT
15. PROJECT START
18
18. DATE DUE TO
FEDERAL AGENCY »
b. PROJECT
IT TYPC OF CHANGE
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GENERAL INSTRUCTIONS FOR THE SF-424
Tms is a standard torm Osea Dy applicants as a required facesneet ;or preappiications and applications submitted .n accordance
«»iih OMB Circular A-'02 't will be used by Federal agencies to obtain applicant certification mat states which have established a
'eview and comment procedure m response to Executive Order 12372 and have selected the program to be Deluded in their
process have been given an opportunity to review the applicant's submission
APPLICANT PROCEDURES FOR SECTION I
Applicant will complete an .terns m Section i w.rn tn« exception ol Box 3 Slate Application identifier n an item requested I more man one
program (eg.. ioie dismctlsl wnere most ol action work will be accompusnea if city-
wide or State-wide, covenng several district, wnte 'city-wide or
State-wide
14 A New A submitui lor proiect not previously funded
B Renewal. An extension lor an additional funding/budget period ><:•' *
proiect naving no proiected completion aate. but 'or wfucn feoa'a'
suppon must be 'enewerj eacn year
C Revision A modilication to proiea nature or scope wnicn may resur
m lundmg cnange (increase or decrease)
0 Continuation An extension lor n tne same funding/budget penod.
Proiect nature and scope unchanged
IS Approximate date proiect expected to begin (usually assoc-niea witn
estimated date ol availability ol funding;
16. Estimated numoer of monrns to complete proiect after Federal fundt
are available
17 Complete only lor revisions (item t4c) or augmentations (iien 144)
18 Date preappucanon/appiication mjsi be Suommed to Federal agency
in order to be eligible lor funding consideration
19 Name and address ol Tie Federal agency '.o ••Ten rhis requetl ia
addressed indicate as cleany as po«a.t/ie •ne ^am« ol me office ic
wmcn tne application will be delivered
20 Existing Federal grani identification number il this is not a new 'equest
and directry relates to a previous Federal action Otherwise. «me
•NA "
21 Cr.eo appropnate box as '0 wnetf>«r Section iv of lorm contains
remarks ana'or additional •emanxa are anacned
APPUCANT PROCEDURES FOR SECTION II
Applicants will always complete either 'tern 22t or 22C tna items 23a and 23b
22a Compieco •! application is suoiect 10 Executive Order 12372 (State :<'D
review and comment) 23a
Check .' application is not Subred >o E 0 12372
Name and ine ol autnonzed 'apresentaDve ol legal apoticani.
FEDERAL AGENCY PROCEDURES FOR SECTION III
Aooucani comptetea only Sections I and I Section III is compieied by Federal agaixies
26 Use to identity award actions
27 Use Section (V to amplify where aporacnate
:8 Amount to be contributed dunng the lirsi funding/budget penod by
each contributor Varue of m-kind comnbutions will be included II the
icnon is a cnange m dollar amount ol an existing gram (a revision or
augmentation under item K). .rvjicate onry me amount pi change For
decncaeea. enclose me amount >n parentheses It both baaic and
supplementaJ amounts are included, breakout m Section IV For multiple
program funding, use totals and show program breakouts in Section iv
28*—amount awa/oed by Federal Government 280—amount aopocant
EPA Form 5700-33 (Rev. 11-66) Previous editions are obsolete
will contribute 28c—amount from State, il applicant it not a State
28d—-amount rrom local government, it applicant is not a local govern.
mem 28e—amount Irom any other sources, explain in Section .v
29 Date action was taken on rhra request.
30 Date funds will become available.
31 Name and telephone number ot agency person who can provirje mort
information regarding this assistance.
32 Date after when tunds will no longer be available for obligation
33 Check appropnata box as to whether Section iv ol form contain*
Federal remarks and/or attachment o< addraonaJ remark*.
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DETACH AND, AS NECESSARY, STAPLE TO ABOVE SHEET.
SECTION IV-REMARKS (Plttt* nftrwnet tt* prwtr /'ten nuant>»r from Sfctioni I, II or III. if tpplictbltl
EPA Form 5700-33 (Rev. 11-86) Previous editions are obsolete.
5
STANDARD FORM 424 PAGE 2 (REV
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STANDARD FORM 424
EPA Form 5700-33 (Rev. 11-86) Previous editions are obsolete.
-------
PART II
PROJECT APPROVAL INFORMATION
Form Approved
CMB No. 2030-0020
Approval expires 7-31-89
lum 1.
Does this assistance request Stale, local, regional, or oth«r priority
rating?
_Ye»
No
Name of Governing Body .
Priority Rating _____
Item 2.
Does this assistance request require State or local advisory, edu-
cational, or health clearances?
Yei No
Name of Agency or
Board
Documintition/
Item 3.
Does this assistance request require clearinghouse review in ac-
cordance with Executive Order 12372?
(Atttch Comment! >
Ham 4.
Doet this a'siiitance requeit require State, local, regional or other
planning eporoval?
. Ye«
-No
Name of Approving Agency.
Date
Ham 5.
It the propowd project covered by an approved comprehensive
plan?
. Yei
.No
Check one: State D
Local D
Regional D
Location of Plan _____
Item 6.
Will the auitunce requeued terve a Federal installation?
Yet
_No
Name of Federal Installation
Federal Population benefiting from Project ,
Item 7.
Will me aaiitance requeued be on Federal land or installation?
_Yet No
Name of Federal Inttallation .
Location of Federal Land _
Percent of Project
Item 8.
Will the atiittanca requested have an impact or affect on the
environment?
See instructions for additional information to be provided.
-Yet
.No
Item 9.
Has the project for which anittanca ii requested caused, since
January 1, 1971, or will it cause, the displacement of any individual,
family, butineu, or farm?
-Yei
.No
Number of:
Individuals.
Femiliet
But
-------
Form Approved
QMS No. 2033-C020
Approval expires ? 31 39
INSTRUCTIONS
PAHT II
Negative answers will not require an explanation unless the
Federal agency request] more information at a later date.
Provide supplementary data for all "Yes" answers in the
space provided in accordance with the following instructions:
Item 1—Provide tfie name of the governing body establishing
the priority system and the priority rating assigned to this
project.
turn 2—Provide the name of the agency or board which
issued the clearance and attach the documentation of status
or approval.
Item 3 - Attach the clearinghouse comments for the
preapplication in accordance with the instructions
contained in Executive Order 12372. If comments
were submitted previously with a preapplication, do
not submit them again; but any adaitional comments
received from the clearinghouse should be submitted
with this application.
Item 4—Furnish the name of the approving agency and the
approval date.
Item 5—Show whether the approved comprehensive plan is
State, local or regional, or it none of these, explain the scope
of the plan. Give the location where the approved plan is
available for examination and state whether this project is
in conformance with the plan.
Item 6—Show the population residing or working on the
Federal installation who will benefit from this project.
Item 7—Show the percentage of the project work that will
be conducted on federally-owned or leased land. Give the
name of the Federal installation and its location.
Item 8-Oescribe briefly the possible beneficial and harmful
impact on the environment of the proposed project. If an
adverse environmental impact is anticipated, explain what
action will be taken to minimize the impact. Federal agen-
cies will provide separate instructions if additional data are
needed.
Item 9-State the number of individuals, families, businesses,
or farms this project will displace. Federal agencies will pro-
vide separate instructions if additional data are needed.
Item 10—Show the Federal Domestic Assistance Catalog
number, the program name, the type of assistance, the status
and the amount of each project where there is related pre-
vious, pending or anticipated assistance. Use additional
sheets, if needed.
Item 11—Flood Insurance—Check "Yes" if proiect or any
nonexpendable property is to be located >n a special flood
hazard area designated by the Department of Housing and
Urban Development. If the answer is "Yes" the grantee must
purchase the required flood insurance if required pursuant to
Item 7 of the General Instructions to this application.
EPA Form 5700-33 (Rev. 11-86) Previous editions are obsolete.
PAGE « or 12
-------
Form Approved.
OMB No. 2030-0020
Approval expires 7-31-89
PART III-BUDGET INFORMATION
SECTION A-BUDGET SUMMARY
GRANT PROGRAM, FEDERAL
FUNCTION OR ACTIVITY CATALOG NO.
<•) (b)
1.
2.
3.
4.
6. TOTALS
ESTIMATED UNOBLIGATED FUNDS
FEDERAL
(c)
$
$
SECTION B-SCHEDULE
6. Object Cleu Categories
•. Penonnel
b. Fringe Benefit!
c. Travel
d. Equipment
e. Supplies
1. Contractile!
g. Construction
h. Other
1. Toul Direct Cherg>i
j. Indirect Cherges
k. TOTALS
7. Program Income
GRANT
(1)
$
S
$
NON-FEDERAL
(d)
$
(
NEW OR REVISED BUDGET
FEDERAL
(e)
$
S
A BUDGET CATEGORIES
PROGRAM. FUNCTION OR ACTIVITY
121
$
'
S
$
(3)
$
S
$
NON-FEDERAL TOTAL
(1) Ig)
$ $
$ s
(4)
$
,
',
i
i
s
$
TOTAL
IS)
S
S
s
PPA Prhfrti <%THfl *J1 JL. -f 1 OC\ Dm.r;^iir A/-li'l^r\c oro nhQnlolo
A... 11-Rfit
-------
Form Approved.
OMB No 2030-0020
Approval expires 7 31 39
SECTION B - SCHEDULE 8 - BUDGET CATEGORIES
6. Program Elements
1.
b.
c.
-.
».
1.
1
FUNDING
(11 FEDERAL
t
h.
i. Total Program Elemenlt
i. STATE TOTAL
I
t
(2) NON-FEDERAL
t
131 TOTAL
s
t : t
i
s
!4I
^»M.
YEARS
.EPA Form 57f>n-33 (Rav. 11-86) Previous editions are obsolete.
P'CE 3 OF 12
10
-------
Form Approved
OMB No 2030 0020
Approval expires 7-31 89
SECTION C-NON-FEDERAL RESOURCES
(!) QRANTPROQRAM
8.
9.
10.
11.
12. TOTALS
(b) APPLICANT
$
$
-------
Form Approvea.
OMB No 2030-0020
Approval expires 7-31-89
INSTRUCTIONS
PART III
General Instructions
Thit form it designed so that application can be mad* for
funds from one or more grant programs. In preparing the
budget, adhere to any existing Federal grantor agency guide-
lines which prescribe how and whether budgeted amount!
should be separately-shown for different functions or activi-
ties within the program. For some programs, grantor agen-
cies mey require budgets to be separately shown by function
or activity, for other programs, grantor agencies may not
require a breakdown by function or activity. Sections A,
8. C, and D should include budget estimates for rjve whole
project except when applying for assistance which require*
Federal authorization in annual or other funding period in-
crements. In the latter case, Sections A, 8. C, and D should
provide the budget for the first budget period (anally *
year) and Section E should present the need for Federal as-
sistance in the subsequent budget periods. All applications
should contain a breakdown by the object class categories
shown in Lines a-fc of Section B.
Section A. Budget Summary
Line* 1-4. Columns (al and (bl.
For applications pertaining to a single Federal grant pro-
gram (fedora/ Domnoc Assistance Catalog number) and
not requiring a functional or activity breakdown, enter on
Line 1 under Column (a) the catalog program title and the
catalog number in Column (bl.
For applications pertaining to a single program requiring
budget amounts by multiple functions or activities, enter the
name of each activity or function on each line in Column (a).
and enter the catalog number in Column (b). For applica-
tions pertaining to multiple programs where nor* of the
programs require a breakdown by function or activity, enter
the catalog program title on each line in Column (a) and the
respective catalog number on each line in Column (b).
For applications pertaining to multiple programs where
on* or more programs require a breakdown by function or
activity, prepare a separate sheet for each program requiring
the breakdown. Additional sheets should be used when one
form does not provide adequate space for all breakdown of
data required. However, when more than one sheet is used.
the first page should provide the summary totals by programs.
Lines 1-4, Columns (c) through (g).
For new applications, leave Columns (c) and (d) blank.
For each line entry in Columns (a) and (b), enter in Columns
(el, (f), and (g) the appropriate amounts of funds needed to
support the project for the first funding period (usually a
year).
For continuing grant program applications, submit these
forms before the end of each funding period as required by
the grantor agency. Enter in Columns (c) and (d) the en.
mated amounts of funds which will remain unobligated it
the end of the grant funding period only if the Fr*«»;|
grantor agency instructions provide for this. Otherwise.
leave these columns blank. Enter in Columns (e) and (f) the
amounts of funds needed for the upcoming period. The
amount(s) in Column (g) should be the sum of amounts in
Columns (e| and (f).
For supplemental grants and cfianget to existing grants.
do not use Columns (cl and (d). Enter in Column (e) the
amount of the increase or decrease of Federal funds and
enter in Column (f) the amount of the increase or decrease
of non-Federal funds. In Column (g) enter the new total
budgeted amount (Federal and non-Federal) which includes
the total previous authorized budgeted amounts plus or
minus, as appropriate, the amounts shown in Columns (e)
and (0. The amount(s) in Column (g) should not equal the
sum of amounts in Columns (e) and (f).
Line 5—Show the totals for all columns used.
Section B. Schedule A—Budget Categories
In the column headings (1) through (4). enter the titles of the
same programs, functions, and activities shown on Lines 1-4,
Column (a). Section A. When additional sheets were pre-
pared for Section A, provide similar column headings on each
sheet. For each program, function or activity, fill In the total
requirements for funds (both Federal and non-Federal) by
object dan categories.
Lines 6*-h—Show the estimated amount for each direct cost
budget (oti/ect c/aal category for each column with program, -
function or activity heading.
Lin* 6i—Show the totals of Lines 6a to 6h in each column.
Line 8|—Show the amount of indirect cost. Refer to Office
of Management and Budget Circular No. A-87.
Line 6k-Enter the total of amounts of Lines 6i and 6|. For
all applications for new grants and continuation grants the
total amount in Column (5), Line 6k, should be the same as
the total amount shown in Section A, Column (g). Lin* 5.
For supplemental grants and changes to grants, the total
amount of the increase or decrease as shown in Columns
(1)-(4), Line 6k should be the same as the sum of the
amounts in Section A, Columns (e) and (f) on Line 6. When
additional sheets were prepared, the last two sentences apply
only to the first page with summary totals.
Lin* 7—Entar the estimated amount of income, if any, ex-
pected to be generated from this project. Do not add or
subtract this amount from the total priject amount. Show
under the program narrative statement the nature end source
of income. The estimated amount of program income may
be considered by the Federal grantor agency in determining
the total amount of the grant.
EPA Form 5700-33 (Rev. 11-86) Previous editions are obsolete.
PAGE 10 OF 12
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Form Approved
OMB No 2C30-0020
Approval expires 7-31 -39
INSTRUCTIONS
PART III
(Continued)
Section B. Schedule B-Budget Categories
Lines 6a-h — For each program element fill in the total
requirements for funds {Federal, non-Federal, and total) and
manyears.
Line i—Show the totals of Lines 6a through h in each
column.
Line j-Show the State totals. Total (Program Elements)
and State total might not be equal due to expenses which
are not classified under specific program elements.
Section C. Source of Non-Federal Resources
Lines 8-11-Enter amounts of non-Federal resources
that will be used on the grant. If in-kind contributions
are included, provide a brief explanation on a separate
sheet. (See Attachment F, A-102.)
Column (a)—Enter the program titles identical to Col-
umn (a). Section A. A breakdown by function or activity
is not necessary.
"Column (b)-Enter the amount of cash and in-kind
contributions to be made by the applicant as shown in
Section A. (See also Attachment F, A-102.)
Column (el—Enter the State contribution if the applicant
is not a State or State agency. Applicants which are a State
or State agencies should leave this column blank.
Column (dl—Enter the amount of cash and in-kind con-
tributions to be made from all other sources.
Column* (el-Enter totals of Columns (b), (c>, and (d).
Lin* 12-Enter the total for each of Columns (b,-(e). The
amount in Column (e, should be equal to trie amount on
Line 5. Column (f), Section A.
Section D. Forecasted Cash Needs
Line 13-Enter the amount of cash needed by quarter from
the grantor agency during the first year.
Line 14-Enter the amount of cash from all other sources
needed by quarter during the first year.
Line 15—Enter the totals of amounts on Lines 13 and 14.
Section E. Budget Estimates of Federal Funds Needed for
Balance of the Project
Lines 16-19—Enter in Column (a) the same grant program
titles shown in Column (a). Section A. A breakdown by
function or activity is not necessary. For new applications
and continuing grant applications, enter in the proper col-
umns amounts of Federal funds which will be needed to
complete the program or project over the succeeding funding
periods (usually in years). This Section need not be com-
pleted for amendments, changes or supplements to' funds
for the current year of existing grants.
If more than four lines are needed to list the program
titles submit additional schedules as necessary.
Line 20—Enter the total-for each of the Columns (b)-(e).
When additional schedules are prepared for this Section,
: .annotate accordingly and show the overall totals on this line.
Section F. Other Budget Information
Line 21—Use this space to explain amounts for individual
direct object cost categories that may appear to be'out of
the ordinary or to explain the details as required by the
Federal grantor agency.
Line 22—Enter the type of indirect rate (provisional, pre-
determined, final or fixed) that will be in effect during the
funding period, the estimated amount of the base to which
the rate is applied, and the total indirect expense.
Line 23-Provide any other explanations required herein or
any other comments deemed necessary.
EPA Form 5700-33 (Rev. 11 -86) Previous editions are obsolete.
PACE 11 OF 12
13
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Form Acaroved.
CiVB No 2CCO 0020
Aoproval »M navmg ^pec.al food
hazards.
12. It will corrp'y with all .ioc:icabie recui.'3Tier"s o<
Section U of 'ne Clean A'a'.sr *ct 4rr?r"*ments of
1972 [PL. 92-500). if the grant's ^.wardd-j jidar any
grant authority of liiat Act. which prov.crfs that no
person T\ the United States shall. ..-n the ground of sox
oe excluded from participation in, 09 denied tr.e
benefits of. or be otherwise subject :c discrimination
under any program or activ'y under the said Clean
Water Act Amendments for w-ich the applicant re-
ceives financial assistance ano will :a«e ail necessary
measures to effectuate this agieerrtnt
EPA Form 5700-33 (Rev. 11-86) Previous editions are obsolete.
12 OF 12
14
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40CFRPART7 -
NONPISCRTMTNATIQN IN PROGRAMS RECEIVING
FEDERAL ASSISTANCE FROM THE ENVIRONMENTAL PROTECTION AGENCY
15
-------
Thursday
January 12, 1984
Part IV
Environmental
Protection Agency
40 CFR Parts 7 and 12
Nondiscriminatlon In Programs Receiving
Federal Assistance From the
Environmental Protection Agency; Final
Rule
16
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1656 Federal Register / Vol. 49. No. 8 / Thursday. January 12, 1984 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 7 and 12
IFRL 2420-4)
Nondiscriminallon in Programs
Receiving Federal Assistance From
the Environmental Protection Agency
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This rule implements statutes
which prohibit discrimination on the
grounds of race, color, national origin.
sex and handicap. Instead of a separate
rule to implement each statute, this
consolidated rule includes all
requirements of the statutes and
clarifies the requirements imposed on
EPA assistance (see Appendix for
partial listing).
When implemented, this regulation
will streamline the administrative
requirements currently imposed on
recipients of agency funds by multiple
nondiscrimination regulations. In
addition, it will strengthen agency
monitoring efforts by eliminating
redundancy and refining compliance
procedures.
EFFECTIVE DATE: February 13. 1984.
FOR FURTHER INFORMATION CONTACT:
Nathaniel Scurry. Director. Offica of
Civil Rights (A-105). U.S. Environmental
Protection Agency. 401 M Street, SW..
Washington. D.C. 20460. (202) 382^1575
(voice) or TDD (202) 382-4565. Copies of
the rule will also be available in Braille
at EPA Headquarters and each EPA
Regional Office.
SUPPLEMENTARY INFORMATION: This rule
revises the EPA regulation implementing
Title VI of the Civil Rights Act of 1964.
as amended, published in the Federal
Register on July 5. 1973 (40 CFR Part 7).
and incorporates the regulation
implementing Section 13 of the Federal
Water Pollution Control Act
Amendment of 1972 (Pub. L. 92-500).
published by EPA on September 13. 1974
(40 CFR Part 12). which prohibits sex
discrimination in all EPA assisted
programs under the Federal Water
Pollution Control Act. This rule
consolidates EPA's handicap and sex
nondiscrimination requirements into 40
CFR Part 7; 40 CFR Part 12 is being
removed.
Title IX of the Education Amendments
of 1972 (relating to nondiscrimination on
the basis of sex in educational
programs) is not addressed in this
regulation. Under 40 CFR Part 30.
however, recipients of EPA assistance
must comply with Title IX. if applicable.
This rule was proposed in the Federal
Register on January 8. 1981 (46 FR 2306)
and the comment period ended on
March 9, 1981. Extensive comments from
ihe EPA Program Offices and the
Department of Justice (DOJ) have been
incorporated in this final rule. Further.
the requirements covering Section 504 of .
the Rehabilitation Act of 1973 as
amended, comport with the coordination
guidelines established by the
Department of Health, Education, and
Welfare and transferred to the
Department of Justice by Executive
Order 12250 as they are interpreted by
the Department of Justice. The proposed
rule contained provisions on Age
discrimination that are not included in
this final rule because they have not
been approved by HHS. This rule will be
amended to include those provisions
when HHS approval is obtained This
final rule deviates to some extent from
Ihe proposed rule to accommodate the
above. Changes to Subpart C.
Discrimination Prohibited on the Basis
of Handicap, were made in reliance on
guidance and advice given by the
Department of Justice pursuant to its
responsibilities under Executive Order
12250 in order to reflect what judicial
precedent requires. Rationale relative to
reformating, as well as Ihe substantive
comments received, follow:
Subpart A of this regulation sets forth
the purpose of the regulation and
general definitions. We have moved
former paragraph (a) of § 7.20. Agency
responsibilities, to Subpart E. Agency
Compliance Procedures, as § 7.105.
General policy. Since this paragraph
summarized EPA's compliance policy.
this was a logical move. Throughout the
rule we changed "Assistance Approving
Official" to "Award Official" to more
accurately describe the function. One
commenter considered the definition of
"Facility" to be too broad. We have
changed the definition to make it less
broad, and have described limitations to
it under our comments relating to
Subpart D, Requirements for Applicants -
and Recipients.
One commenter recommended that
the definition of Hispanic betxpanded
to include persons of Portuguese origin.
We cannot accept this recommendation.
The basic racial and ethnic categories
for all federal data collection and
reporting purposes are established by
Directive 15 of the Office of Federal
Statistical Policy and Standards, whose
function is now in the Office of
Information and Regulatory Affairs.
Office of Management and Budget, 43
FR 19260. The Department of Justice's
Title VI coordination regulation (28 CFR
42.401 to 42.415) also requires that these
categories be used.
Subpart B describes the prohibitions
against dll forms of discrimination
covered by this regulation except
discrimination against handicapped
persons. We made editorial changes for
reasons of clarity.
Within Subpart C. Discrimination
Prohibited on the Basts of Handicap, wer
have responded to several comments ">
which described certain provisions of
the proposed Subpart as confusing,
particularly those dealing with
accessibility.
Paragraph (a|(2) of § 7.65 codifies
recent case law that defines the scope of
a recipient's obligation to ensure
program accessibility. This paragraph
provides that in meeting the program
accessibility requirement a recipient is
not required to take any action that
would result in a fundamental alteration
in the nature of its program or activity or
in undue financial and administrative
burdens. This provision is based on the
Supreme Court's holding in
Southeastern Community College v.
Davis. 442 U.S. 397 (1979). that section •
504 does not require program
modifications that result in a
fundamental alteration in the nature of a
program, and on circuit court
applications of the Court's statement in
Davis that section 504 does not require
modification that would result in "undue
financial and administrative burdens."
442 U.S. at 412: see. e.g., Dopico v.
Goldschmidl. 687 F.2d 644 (2d Cir. 1982);
American Public Transit Association v.
Lewis (APTA). 655 F.2d 1272 (D.C. Cir.
1981). In APTA the United States Court
of Appeals for the District of Columbia
applied the Davis language and
invalidated the section 504 regulations
of the Department of Transportation.
The court in APTA noted "that at some
point a transit system's refusal to take
modest affirmative steps to
accommodate handicapped persons
might well violate section 504. But
DOT's rules do not mandate only
jnodesl expenditures^ The regulations -
require'extensive modifications of
existing systems and impose extremely
heavy financial burdens on local transit
authorities." 655 F.2d at 1278.
The inclusion of paragraph (a)(2) is an
effort to conform the agency's
implementation of section 504 to the
Supreme Court interpretation of the
statute in Davis as well as to the
decisions of lower courts following the
Davis opinion. This paragraph
acknowledges, in light of recent case
law. that in some situations, certain
accommodations for a handicapped
person may so alter recipients' programs
or activities, or entail such extensive
costs and administrative burdens, that
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Federal Register / Vol. 49, No. 8 / Thursday. January 12. 1904 / Rules and Regulations
1657
the refusal to undertake their
accommodations is not discriminatory.
The failure to include such a provision
:eflecting judicial interpretation of
.pLtion 504 could lead to judicial
invalidation of the regulation or reversal
of particular enforcement actions taken
tnder the regulation.
This paragraph, however, does not
establish an absolute defense: it does
not relieve a recipient of all obligations
to handicapped persons. Although a
recipient is not required to take actions
that would result in a fundamental
alteration in the nature of a program or
activity or in undue financial and
administrative burdens, it nevertheless
rr-s! take any other steps necessary to
ensure that handicapped persons
receive the benefits and services of the
federally assisted program or activity.
New paragraph (e) of section 7.65
slates that alterations to existing
facilities need not be undertaken when
ihey are structurally or financially not
feasible.
Paragraph (b) of § 7.70. New
construction, stipulates the effective
dote of applicable accessibility
requirements on design of new
• construction.
New paragraph (d) of i 7.70. New
construction, excludes certain types of
ureas of EPA projects from the
accessibility requirement. We anticipate
use of this exemption only in those ;
instances where a facility or portion of a
facility is not visited by the public or
beneficiaries and where, because of the
•ature of the facility and the
requirements of the jobs there, it is not
M.ely that persons with particular
handicaps could meet the physical
Acquirements for those jobs, even with
reasonable accommodation. In those
instances, the areas in question would
no; have to be accessible to persons
with those handicaps. For example,
elevator access need not be provided in
j sewage treatment plant for certain
arHas associated with the treatment
process because of the potential hazards
ihot exist and because full mobility may
l)c necessary to perform some of the
essential functions of the jobs in those
an>as. Providing accessibility for
wheelchair users in these areas would
^pose an undue hardship on the
"psration of the recipient's activity.
"•recipients would be required to provide
Accessibility for persons with other
handicaps, such as hearing impairments,
who could perform jobs in treatment
areas without creating safety or health
Wards. However, separate
•"Iniinistrative or laboratory areas in the
s"rne facility must be accessible to
Persons in wheelchairs.
EPA and recipients should not. of
course, make blanket assumptions that
handicapped persons cannot perform
jobs in particular areas, but should
consult with handicapped persons and
their representative organizations in
determining how facilities can be
designed to provide employment
opportunities. EPA and recipients
should consult with the Equal
Employment Opportunity Commission
(EEOC) for guidance on the scope of this
exemption as it relates to employment
opportunities. The EEOC has
responsibility for coordinating the
federal effort to enforce the federal
equal employment opportunity law (E.O.
12067, 43 CFR 28967). We have also
followed the suggestions of several
commenters to establish limeframes for
compliance with accessibility
requirements.
One commenter thought that the .
proposed rule did not sufficiently
specify requirements to accommodate
handicapped people. We have chosen to
leave the specifics to the particular
situation as it arises. Reasonable
accommodation is required. To
determine specifically what is necessary
for any particular program is left to the
judgment of the program management as
guided by this regulation.
One of the major difficulties EPA has
encountered in attempting to define
"reasonable accommodation" is that
each form of impairment of handicapped
employees or persons seeking
employment requires different methods
of accommodation to achieve equality of
opportunity with the nonimpaircd. It
would neither be practical to list every
form of accommodation that would
achieve this end, nor to dictate a
uniform degree of accommodation based
upon cost. Finally, certain programs.
such as construction grants for
wastewater treatment works, create
employment opportunities which expose
employees to high risks of injury. The
ability to perform safely is an essential
function of any hazardous job. and a
recipient may consider dangers to
employees as a factor in determining
whether an accommodation is
reasonable. In all cases where qualified
handicapped persons are employed by
or seek employment from EPA assisted
recipients, recipients will be expected to
extend such employment opportunities
as may be available to persons within
the limits of coverage of Subpart C.
unless the recipient can demonstrate
that such accommodation would impose
an undue hardship on its operation. The
standards of the Department of Justice
in 28 CFR Part 42.511 which defines
'reasonable accommodation." will be
used to determine whether
accommodation should be made by the
recipient. Several Federal circuit courts
have ruled that employment is covered
by section 504 only where a primary
purpose of the assistance is to provide
employment. Sccnlon v. Atascadero
State Hospital. 677 F.2d 1271 (9th Cir.
• 1982); United States v. Cabrini Medical
Cer.ier. 639 F.2d 908 (2d Cir. 1981);
Cnrwi v. .Metropolitan St. Louis Seiver
District. 620 F.2d 672 (8th Cir. I960), cert.
denied. 449 U.S. 892 (1980); Trageserv.
Libbie Rehabilitation Center. Inc.. 590
F.2d 87 (4th Cir. 1978). cert, denied. 442
U.S. 947 (1979). However, the Third and
Eleventh Circuit Courts cf Appeals have
recently held that section 504 generally
applies to employment. Le Strange v.
Consolidated Rail Corp.. 687 F.2d 707
(3rd Cir. 1982) cert, granted. 51 U.S.L.W.
3598 tU.S.. Feb. 22. 1983). (No. 82-862);
/ones v. Metropolitan Atlanta Rapid
Transit Authority. 681 F.2d 1376 (llth
C:r. 1982). pet. for cart, filed. 51 U.S.L.W.
3535 (U.S.. Jan. 11, 1983) (No. 82-1159).
Pending further clarification of the
law. Subpart C will not be enforced with
respect to employment where
employment is not a primary purpose of
the EPA assistance in States located in
the Second. Fourth. Eighth, and Ninth
Circuits (New York. Connecticut.
Vermont. Maryland. North Carolina.
South Carolina. Virginia, West Virginia.
A: kansas. Iowa. Minnesota. Missouri.
Nebraska. North Dakota, South Dakota.
Alaska. Arizona. California. Idaho,
Montana. Nevada. Oregon. Washington.
Guam, and Hawaii).
Subpart D sets forth the procedures
applicants and recipients must follow
for EPA to determine whether they are
in compliance with this regulation.
Section 7.80 describes the
requirements for applicants. Paragraph
(a) of this section provides that all
applicants must submit an assurance
that the assisted program or activity will
not involve any discrimination
prohibited by-«h
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1658
Federal Register / Vol. 49. No. 8 / Thursday. January 12. 1984 / Rules and Regulations
The information required includes notice
of any pending lawsuits alleging
discrimination by the applicant in the
program or activity that would be the
subject of the EPA assistance. It aiso
solicits a description of applications to.
or current assistance from, other federal
agencies for the same program or
activity that EPA would assist dnd a
statement on any compliance reviews
conducted for that program c. -j'.ivily
during the two years before the EPA
application.
Section 7.85 describes the compliance
information that EPA recipients must
collect, maintain, and. on request.
submit to EPA. Several commenters
requested clarification of the proposed
requirements. One criticized the section
for providing too little guidance and
requested a "more clear, detailed
description" of the information that
should be collected. In response to this.
we have reordered sections of Subpart
D of the final rule to make it more
descriptive and inclusive and have
expanded some provisions for clarity
Paragraph (a) of thi? section provides
that a recipient must collect and
maintain four basic categories of
information, namely: information
concerning la-.vsuUs pending agirisl the
recipient that allege discrimination '.his
Part prohibits; information concrmmg
complaints of alleged discrimination
filed with the recipient: data showing
the racial/ethnic, national origin, sex.
and handicap condition of beneficiaries
of the recipient's program: and reports of
compliance reviews conducted by other
agencies. A recipient may also be
required to collect and maintain such
other information as the OCR
determines to be necessary to assure
compliance. Paragraph (d) cf this section
describes the factors that a recipient
must take into account in developing
such information. Paragraph (e) of this
section requires a recipient to retain
compliance information for a certain
period and to make such information
available to EPA and the public, upon
request. While recipients are not
required to submit routine compliance
reports, they must have the information
available to submit if requested by EPA.
Several commenters expressed
concern over whether Part 7 applied to
all the facilities and operations of an
EPA applicant/recipient or only to those
facilities and operations directly
connected with or employed in
furthering the project objectives. Part 7
applies only to those facilities.
operations, and activities of a recipient
that receive EPA assistance. If a
recipient received assistance under an
EPA statute, the purpose and scope of
which is to assist the entire operation of
the recipient, then the entire range of the
recipient's facilities, operations, and
activities become subjecmvthe civil
rights statutes implemented by this
regulation.
Several commenlers were confused
about our intent when we used the term
"subrecipienl" in the proposed rule in
§ 7.75 Compliance reports. It is our
intent that the entity actually
implementing the EPA assisted program
comply with the requirements of this
Part and be able to give assurance of
such compliance with respect to such
program. To clarify our intent we have
eliminated (he term "subrecipient."
In response to the comment which
asked if proposed § 7.75 required a
recipient to keep a log of "service"
complaints (as weil as employment
complaints) when such complaints were
maintained by another city agency.
those requirements (now appearing
under § 7.85) would be met if the
recipient can provide the required data
upon request to EPA or an interested
party.
One commenter sjjgsested that EPA's
monnuring of compliance would be
improved if we required recipients to
iilentify uiiy discriminatory policies or
practices and indicate steps they would
take to modify those practices. While
we do not require such "self-evaluation"
to be submitted to EPA. it is expected.
as stated in paragraph (c) of § 7.S5. that
recipients will identify discrimination
prohibited by this Part in any of their
funded programs or activities.
Proposed § ~.&0. now § 7.90. required
each recipient to adopt a grievance
procedure and designate a person to
coordinate its compliance efforts Two
commenters asked for further
explanation of "appropriate due
process" for that proposed procedure.
We concluded that this phrase may
have implied too much. We intend that
recipients establish a standard
procedure for dealing with complaints.
that provides an opportunity for a timely
and fair resolution. We have, therefore.
revised paragraph (a] of "§ 7.90 ^require
a recipient to adopt a grievance
procedure that assures the prompt and
fair resolution of complaints.
Proposed § 7.70. now § 7.95. required
each recipient to provide public notice
of nondiscriminaUon to designated
groups and individuals. Several
commenters indicated that the proposed
requirement that notice "must be"
included in all major correspondence
would be burdensome to recipients. One
comment indicated that other suggested
forms of notice were more appropriate
than this apparently mandatory form;
another comment indicated that if all
federal agencies had such a requirement
"there would be little space left on
correspondence for correspondence."
We agreed with these comments anH
have made this form of notice
discretionary.
In § 7.85 of the proposed rule, a -
recipient was required to notify the OCR
at the time a lawsuit alleging
discrimination was filed. One
commenter indicated that such a
requirement would be burdensome to a
recipient since it would presumably
require the recipient to keep 'iPA
apprised of the progress nt tht lawsuit.
The same commenter notcH 'hat other
federal agencies simply rra'.ir-; such
information be submitter! uv.rn;.j!ly or
periodically as part of an iipp.ication..
and recommended that we eliminate this
requirement. We modified paragraph (a)
of § 7 85 accordingly and now require
that a recipient maintain information on
pending lawsuits and submit such
information upon request.
Section 7.100 prohibits an applicant.
recipient or other person from
intimidating, threatening, coercing or
discriminating against an individual or
grocp in order to interfere with a right or
privilege guaranteed by the
nondis.-nrninalion provisions of this
Part, or because such individual has
filed a complaint or participated in
enforcement of this regulation. One
commenler noted that t'nis section
needed "more teeth." Since a complaint
of intimidjtion would be treated
according to the complaint procedure in
§ 7.120. an applicant or recipient found
in violation of § 7.ICO could be subject to
enforcement procedures. We think this
is a sufficiently severe sanction.
Another commenter criticized the
entire compliance section for "lack of
coordination" with the guidelines issued
by the Department of Labor and the
Attorney General. We think this
criticism.is unfounded. We have
dcvelopedaur regulation in compliance
with the Department cf Justice
guidelines on Title VI and Section 504.
and after numerous discussions with the
Department. The Department of Labor is
responsible for the administration of
Section 503 of the Rehabilitation Act of
1973. as amended, an affirmative action
statute that applies to certain federal
contractors. It must be noted that
revised Part 7 does not apply to those
that receive EPA funds through direct
federal procurement arrangements.
Subpart E sets forth the procedures
that EPA will follow in assuring that
applicants and recipients ore in
compliance with the requirements oT lire
Acts and this Part.
19
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Federal Register / Vol. 49. No. 8 / Thursday. January 12, 1984 / Rules and Regulations 1659
One commenter suggested that it
would be more logical to reorder the
sections in the proposed Subpart to have
preaward compliance, postaward
compliance, and complaint
investigations precede the sections on
sanctions and coordination with other
agencies. We have accepted this
suggestion and have restructured this
Subpart. New § 7.110 describes EPA's
preaward review of an applicant's
. submission(s). Paragraph (a) provides
that the OCR will determine compliance
based on "any other information EPA
receives during this time or has on file
about the applicant." One conimenler
asked what this latter provision
included. Many EPA recipients.
particularly those constructing
wastewater treatment facilities, have
received a series of awards and.
therefore, EPA has a "file" that may
contain information useful to the OCR.
In addition, the application itself may
include data that would be of interest to
the OCR (e.g., other federal assistance
an applicant is receiving).
One commenter suggested greater
specificity as to when the OCR would
conduct an on-site review. An on-site
review of the covered program or
activity shall take place only when OCR
has reason to believe discrimination
may be occurring. Of course, OCR may
request data and information from
applicants at the preaward stage.
Section 7.115 of this final rule
(formerly 5 7.120) describes EPA's
postaward compliance process. One
commenter noted that EPA will only
conduct compliance reviews where
compliance problems have been
identified and suggested that EPA
should also conduct reviews of
recipients where there have been no
complaints or investigations. Another
commenter also recommended "random
reviews" in addition to the proposed
approach. It is our view that EPA's
compliance resources will have the
greatest impact when used to address
identified problem areas. Accordingly,
postaward on-site reviews of covered
programs or activities shall take place
only when OCR has reason-to believe
discrimination may be occurring. We
note, however, that revised paragraph
(a) of § 7.115 permits EPA to collect data
and information as pan of a compliance
review of any recipient of EPA
assistance .on a random basis.
Section 7.120 provides the procedure
for investigating and resolving
complaints of discrimination. One
commenter recommended that we
establish a specific time limit (rather
than merely "promptly") for resolving
complaints. We have revised paragraph
(c) of this section to require the OCR to
notify all parties within five (5) calendar
days of the receipt of a complaint and to
notify them within twenty (20)
additional calendar days, according to
paragraph (d)(l), whether EPA accepted,
rejected or referred the complaint to
another agency. Further, we have
clarified the time limit for resolving
complaints by applying the postaward
compliance procedure set forth in
§ 7.115 to them. That section has been
amended to include, where appropriate,
references to complaint investigation.
Under these provisions, a preliminary
decision must be made within 180
calendar days from the time a complaint
is received by the agency. Paragraph (f)
of § 7 120 is reserved for the mediation
process that applies only to complaints
of age discrimination.
In the proposed regulation. § 7.130
described the procedure for annulling.
suspending or terminating EPA
assistance upon a finding of
noncompliance. One commenter asked
whether such procedures apply to denial
of assistance as well. They do. We have
revised this section to include the
procedures for refusing to provide
financial assistance. We have also
rewritten this section to clarify the
decision-making process and the rights
of applicants and recipients. It should be
noted that before EPA denies, annuls.
suspends, or terminates assistance on
the basis of noncompliance. the
applicant or recipient has the statutory
right to an evidentiary hearing.
Regulation Developmept Process
Under Executive Order 12291. EPA
must judge whether a rule is "major"
and therefore subject to the Regulatory
Impact Analysis requirements of the
Order We have determined that this
regulation is not "major" as it will not
have a substantial impact on the
economy. This rule was submitted to the
Office of Management and Budget for
review, as required by Executive Order
12291.
Office of Management and Budget
Review
Under the Paperwork Reduction Act
of 1980. 44 U.S.C. 3501 et seq.. the
information provisions of this rule found
in Sections 7.80 and 7.85 were approved
hv the Of fire nf Management and
Budget (OMB), control number 2000-
0006. and are reflected in this rule.
Environmental Impact Statement
This regulation does not affect the
environment. An Environmental Impact
Statement is not required under the
National Environmental Policy Ad of
1969.
This regulation does not supersede 40
CFR Part 8 which implements Executive
Order 11246.
List of Subjects in 40 CFR Part 7
Civil rights, Sex discrimination.
Discrimination against handicapped
In consideration of the foregoing. 40
CFR is amended by removing Part 12
and revising 40 CFR Part 7 to read as
follows:
PART 7—NONDISCRIMINATION IN
PROGRAMS RECEIVING FEDERAL
ASSISTANCE FROM THE
ENVIRONMENTAL PROTECTION
AGENCY
Su*>pan A—General
Purpose of this part.
Applicability.
Responsible agency officers.
Definitions.
Sec
7.10
7.15
7.20
7.:s
Subpart B—Discrimination Prohibited on
trie Basis of Race. Color, National Origin or
Sex
7.30 General prohibition.
7.35 Spnufic prohibitions.
740 (Reserved)
Subpart C—Discrimination Prohibited on
the Basis ot Handicap
7.45 General Prohibition.
7.50 Specific prohibitions against
discrimination.
7 55 Separate or different programs.
7 60 Prohibitions and requirements relating
to employment
765 Accessibility
7.70 New construction.
7.75 Transition plan.
Subpart 0—Requirements 1or Applicants
and Recipient*
7 BO Applicants.
785 Recipients.
7.90 Grievance procedures
795 Notice of nondiscrimmalion.
7.100 Intimidation and retaliation
prohibited.
Subpart E—Agency Compliance '*
Procedures
f.'tOS General policy.
7.110 Preaward Compliance.
7.115 Postaward compliance
7.120 Complaint investigations
7.125 Coordination with other agencies.
7.130 Actions available to EPA to obtain
compliance.
7.135 Procedure for regaining eligibility
Appendix A—EPA Assistance Programs as
Listed in the "Catalog ofFederal
Domestic Assistance"
Authority: The Civil right* Act of 1964. as
amended. 42 U.S C. ZOOOd ct seq.: sec. 504.
Rehabilitation Act of 1973, as amended. 29
USC 794; sec. 13. Federal Water Pollution
Control Act Amendments of 1972. Pub L 92-
500
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1660 Federal Register / Vol. 49, No. 8 / Thursday, January 12, 1984 / Rules and Regulations
Subpart A—General
§7.10 Purpose of this part.
This Part implements: Title VI of the
Civil Rights Act of 1964. as amended:
Section 504 of the Rehabilitation Act of
1973. as amended; and Section 13 of the
Federal Water Pollution Control Act
Amendments of 1972. Pub. L. 92-500.
(collectively, the Acts).
§ 7.1S Applicability.
This Part applies to all applicants for,
and recipients cf. EPA assistance in the
operation of programs or activities
receiving such assistance beginning
Feburary 13, 1984. New construction
(§ 7.70) for which design was initiated
prior to February 13. 1984. shall comply
with the accessibility requirements in
the Department of Health. Education
and Welfare (now the Department of
Health and Human Services)
nondiscnmination regulation. 45 CFR
84.23, issued June 3. 1977, or with
equivalent standards that ensure the
facility is readily accessible to and
usable by handicapped persons. Such
assistance includes but is not limited to
that which is listed in the Catalogue of
Federal Domestic Assistance under the
66.000 series, it supersedes the
provisions of former 40 CFR Parts 7 and
12.
§7.20 Responsible agency officers.
(a) The EPA Office of Civil Rights
(OCR) is responsible for developing and
administering EPA's compliance
programs under the Acts.
(b) EPA's Project Officers will, to the
extent possible, be available to explain
to each recipient its obligations under
this Part and to provide recipients with
technical assistance or guidance upon
request.
§ 7.25 Definitions.
As used in this Part:
"Administrator" means the
Administrator of EPA. It includes any
other agency official authorized to act
on his or her behalf, unless cxplicity
stated otherwise.
"Alcohol abuse" means any misuse of
alcohol which demonstrably interferes
with a person's health, interpersonal
relations or working ability.
"Applicant" means any entity that
files an application or unsolicited
proposal or otherwise requests EPA
assistance (see definition for "EPA
assistance").
"Assistant Attorney General" is the
head of the Civil Rights Division. U.S.
Department of Justice.
"Award Official" means the EPA
official with the authority to approve
and execute assistance agreements and
to take other assistance related actions
authorized by this Part and by other
EPA regulations or delegation of
authority.
"Drug abuse" means:
(a) The use of any drug or substance
listed by the Department of Justice in 21
CFR 1308.11. under authority of the
Controlled Substances Act. 21 USC 801.
as a controlled substance unavailable
for prescription because:
(1) The drug or substance has a high
potential for abuse,
(2) The drug or other substance has no
currently accepted medical use in
treatment in the United States, or
(3) There is a lack of accepted safety
for use of the drug or other substance
under medical supervision.
Note.—Examples of drugs under paragraph
(a)(l) of this lection include certain opiates
and opiate derivatives (e.g.. heroin) and
hallucinogenic substances (e.g.. marijuana,
mcscaline. peyole) and depressants (e 3.,
methaqualone). Examples o((a)(2) include
opium, coca leaves, melhador.e.
amphetamines and barbiturates.
(b) The misue of any drug or
substance listed by the Department of
Justice in 21 CFR 1308.12-15 under
authority of the Controlled Substances
Act as a controlled substance available
for prescription.
"EPA" means the United States
Environmental Protection Agency.
'.'EPA" assistance" means any grant or
cooperative agreement, loan, contract
(other than a procurement contract or a
contract of insurance or guaranty), or
any other arrangement by which EPA
provides or otherwise makes available
assistance in the form cf:
(1) Funds:
(2) Services of personnel; or
(3) Real or personal property or any
interest in or use of such property,
including:
(i) Transfers or leases of such
property for less than fair market value
or for reduced consideration; and
(ii) Proceeds from a subsequent
transfer or lease of such property if •
EPA's share of its fair market value is
not returned to EPA.
"Facility" means all, or any part of, or
any interests in structures, equipment,
roads, walks, parking lots, or other real
or personal property.
"Handicapped person;"
(a) "Handicapped person" means any
person who (1) has a physical or mental
impairment which substantially limits
one or more major life activities, (2) has
a record of such an impairment, or (3) is
regarded as having such an impairment
For purposes of employment, the terra
"handicapped person" does not include
any person who is an alcoholic or drug
abuser whose current use of alcohol or
drugs prevents such individual from
performing the duties of the job in
question or whose employment, by
reason of such current drug or alcohol
abuse, would constitute a direct threat
lo property or the safety of others.
(b) As used in this paragraph, the
phrase: ".
(1) "Physical or mental impairment"
means (i) any physiological disorder or
condition, cosmetic disfigurement, or
anatomical loss affecting one or more of
the following body systems:
neurological; musculoskeletal; special
sense organs; respiratory, including
speech organs; cardiovasular.
reproductive; digestive; genito-urinary;
hemic and lymphatic: skin: and
endocrine: and (ii) any mental or
psychological disorder, such as mental
retardation, organic brain syndrome,
emotional or mental illness, and specific
learning disabilities.
(2) "Major life activities" means
functions such as caring for one's self.
performing manual tasks, walking,
seeing, hearing, speaking, breathing,
learning, and working.
(3) "Has a record of such an
impairment" moans has a history of. or
has been misclassified as having, a
mental or physical impairment that
substantially limits one or more major
life activities.
(4) "Is regarded as having an
impairment" means:
(i) Has a physical or mental
impairment that does not substantially
limit major life activities but that is
treated by a recipient as constituting
such a limitation;
(ii) Has a physical or mental
impairment that substantially limits
major life activities only as a result of
the attitudes of others toward such
impairment; or
(iii) Has none of the impairments
defined above but is treated by a
recipient as having such an impairment
""Office" of Civil Rights" or OCR means
the Director of the Office of Civil Rights.
EPA Headquarters or his/her designated
representative.
"Project Officer" means the EPA
official designated in the assistance
agreement (as defined in "EPA
assistance") as EPA's program contact
witli the recipient; Project Officers are
responsible for monitoring the project
"Qualified handicapped person"
means:
(a) With respect to employment: a
handicapped person who, with
reasonable accommodation, can perform
the essential functions of the job in
question.
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Federal Register / Vol. 49. No. 8 / Thursday. January 12, 1984 / Rules and Regulations
1661
(b] With respect to services, a
handicapped person who meets the
essential eligibility requirements for the
receipt of such services.
"Racial classifications:" '
(a) American Indian or Alaskan
native. A person having origins in any of
the original peoples of North America.
and who maintains cultural
identification through tribal affiliation or
community recognition.
(b) Asian or Pacific Islander. A person
having origins in any of the original
peoples of the Far East. Southeast Asia,
the Indian subcontinent, or the Pacific
Islands. This area includes, for example.
China, (apan. Korea, the Philippine
Islands, and Samoa.
(c) Black and not of Hispanic origin. A
person having origins in any of the black
racial groups of Africa.
(d) Hispanic. A person of Mexican.
Puerto Rican, Cuban. Central or South
American or other Spanish culture or
origin, regardless or race.
(e) White, not of Hispanic origin. A
person having origins in any of the
original peoples of Europe. North Africa.
or the Middle East.
"Recipient" means, for the purposes of
this regulation, any state or its political
subdivision, any instrumentality of a
state or its political subdivision, any
public or private agency, institution,
organization, or other entity, or any
person to which Federal financial
assistance is extended directly or
through another recipient, including any
successor, assignee, or transferee of a
recipient, but excluding the ultimate
beneficiary of the assistance.
"Section 13" refers to Section 13 of the
Federal Water Pollution Control Act
Amendments of 1972.
"United States" includes the states of
the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, American
Samoa, Guam. Wake Island, the Canal
Zone, and all other territories and
possessions of the United States; the
term "State" includes any one of the
foregoing.
' Addiiiontl subcaiegones based on national
origin or primary language spoken may be used
where appropriate on either a national or a regional
basis. Subparagraphs (a) through (e] are in
conformity wirh Directive 15 of Ihe Office of Federal
Statistical Policy and Standards, whose function is
now in the Office of Information and Regulatory
Affairs. Oflrct of Management and Budget. Should
that office, or any successor office, change or
otherwise amend the categories listed in Directive
15. Ihe categories in this paragraph shall be
interpreted to conform with any such changes or
amendments.
Subpart B—Discrimination Prohibited •
on the Basis of Race, Color, National
Origin or Sex
§ 7.30 General prohibition.
No person shall be excluded from
participation in, be denied the benefits
of. or be subjected to discrimination
under any program or activity receiving
EPA assistance on Ihe basis of race.
color, national origin, or on the basis of
sex in any program or activity receiving
EPA assistance under the Federal Water
Pollution Control Act. as amended.
including the Environmental Financing
Act of 1972.
§ 7.3S Specific prohibitions.
(a) As to any program or activity-
receiving EPA assistance, a recipient
shell not directly or through contractual.
licensing, or other arrangements on the
basis of race, color, national origin or. if
applicable, sex:
(1) Deny a person any service, aid or
other benefit of the program;
(2) Provide a person any service, aid
or other benefit that is different, or is
provided differently from that provided
to others under the program;
(3) Restrict a person in any way in the
enjoyment of any advantage or privilege
enjoyed by others receiving any service.
aid. or benefit provided by the program;
(4) Subject a person to segregation in
any manner or separate treatment in
any way related to receiving services or
benefits under the program;
(5) Deny a person or any group of
persons the opportunity to participate as
members of any planning or advisory
body which is an integral part of the
program, such as a local sanitation
board or sewer authority.
(6) Discriminate in employment on the
basis of sex in any program subject to
Section 13. or on the basis of race, color.
or national origin in any program whose
purpose is to create employment; or. by
means of employment discrimination.
deny intended beneficiaries the benefits
of the EPA assistance program, or
subject the beneficiaries to prohibited
discrimination.
(7) In administering a program OPJ,
activity receiving Federal financial
assistance in which the recipient has
previously discriminated on the basis of
race, color, sex, or national origin, the
recipient shall take affirmative action to
provide remedies to those who have
been injured by the discrimination.
(b) A recipient shall not use criteria or
methods of administering its program
which have the effect of subjecting
individuals to discrimination because of
their race, color, national origin, or sex,
or have the effect of defeating or
substantially impairing accomplishment
of the objectives of the program with
respect to individuals of a particular
race, color, national origin, or sex.
(c) A recipient shall not choose a site
or location of a facility that harthe
purpose or effect of excluding
individuals from, denying them the
benefits of. or subjecting them to
discrimination under any program to
which this Part applies on Ihe grounds of
race, color, or national origin or sex; or
with the purpose or effect of defeating or
substantially impairing the
accomplishment of the objectives of this
subpart.
(d) The specific prohibitions of
discrimination enumerated above do not
limit the general prohibition of § 7.30
§7.40 [Reserved)
_ Subpart C—Discrimination Prohibited
' on the Basis of Handicap
§ 7.4S General prohibition.
No qualified handicapped person-shall
solely on the basis of handicap be
excluded from participation in. be
denied the benefits of. or otherwise be
subjected to discrimination under any
program or activity.receiving EPA
assistance.
§ 7.50 Specific prohibitions against
discrimination.
(a) Atecipient. in providing any aid.
benefit or service under any program or
activity receiving EPA assistance shall
not. on the basis of handicap, directly or
through contractual, licensing, or other
arrangement:
(1) Deny a qualified handicapped
person any service, aid or other benefit
of a federally assisted program;
(2) Provide different or separate aids.
benefits, or services to handicapped
persons or to any class of handicapped
persons than is provided to others
unless the action is necessary to provide
qualified handicapped persons with
aids, benefits, or services that are as
effective, as thgse provided to others;
(3) Aid or perpetuate discrimination
against a qualified handicapped person
by providing significant assistance to an
entity that discriminates on the basis of
handicap in providing aids, benefits, or
services to beneficiaries of the
recipient's program;
(4) Deny a qualified handicapped
person the opportunity to participate as
a member of planning or advisory
boards: or
(S) Limit a qualified handicapped
person in any other way in the
enjoyment of any right, privilege,
advantage, or opportunity enjoyed by
others receiving an aid, benefit or
service from the program.
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1662 Federal Register / Vol. 49, No. 8 / Thursday, January 12, 1904 / Rules and Regulations
(b) A recipient may not, in
determining the site or location of a
facility, make selections: (1) That have
the effect of excluding handicapped
persons from, denying them the benefits
of, or otherwise subjecting them to
discrimination under any program or
activity lhat receives or benefits from
EPA assistance or (2) that have the
purpose or effect of defeating or
substantially impairing the
accomplishment of the objectives of the
program or activity receiving EPA
assistance with respect to handicapped
persons.
(c) A recipient shall not use criteria or
methods of administering any program
or activity receiving EPA assistance
which have the effect of subjecting
individuals to discrimination because of
their handicap, or have the effect of
defeating or substantially impairing
accomplishment of the objectives of
such program or activity with respect to
handicapped persons.
(d] Recipients shall take appropriate
steps to ensure that communications
with their applicants, employees, and
beneficiaries are available to persons
with impaired vision and hearing.
(e) The exclusion of non-handicapped
persons or specified classes of
handicapped persons from programs
limited by federal statute or Executive
Order to handicapped persons or a
different class of handicapped persons
is not prohibited by this subpart.
9 7.55 Separate or different programs.
Recipients shall not deny a qualified
handicapped person an opportunity
equal to that afforded others to
participate in or benefit from the aid,
benefit, or service in the program
receiving EPA assistance. Recipients
shall administer programs in the most
integrated setting appropriate to the
needs of qualified handicapped persons.
§ 7.60 Prohibitions and requirements
relating to employment
(a) No qualified handicapped person
shall, on the basis of handicap, be
subjected to discrimination in
employment under any program or
activity that receives or benefits from
federal assistance.
(b) A recipient shall make all
decisions concerning employment under
any program or activity to which this
Part applies in a manner which ensures
that discrimination on the basis of
handicap does not occur, and shall not
limit, segregate, or classify applicants or
employees in any way that adversely •
affects their opportunities or status
because of handicap.
(c) The prohibition against >
discrimination in employment applies to
the following activities:
(1) Recruitment, advertising, and the
processing of applications for
employment;
(2) Hiring, upgrading, promotion.
award of tenure, demotion, transfer.
layoff, termination, right of return from
layoff, and rehiring;
(3) Rates of pay or any other form of
compensation and changes in
compensation;
(4) lob assignments, job
classifications, organizational
structures, position descriptions, lines of
progression, and seniority lists;
(5) Leaves of absence, sick leave, or
any other leave;
(6) Fringe benefits available by virtue
of employment, whether or not
administered by the recipient;
(7) Selection and financial support for
training, including apprenticeship,
professional meetings, conferences, and
other related activities, and selection for
leaves of absence to pursue training;
(8) Employer sponsored activities.
including social or recreational
programs: or
[9] Any other term, condition, or
privilege of employment.
(d) A recipient shall not participate in
a contractual or other relationship that
has the effect of subjecting qualified
• handicapped applicants or employees to
discrimination prohibited by this
subpajt. The relationships referred to in
this paragraph include relationships
with employment and referral agencies.
with labor unions, with organizations
providing or administering fringe
benefits to employees of the recipient,
and with organizations providing
training and apprenticeship programs.
(e) A recipient shall make reasonable
accommodation to the known physical
or mental limitations of an otherwise
qualified handicapped applicant or
employee unless the recipient can
demonstrate that the accommodation ,
would impose an undue hardship on the
operation of its program.
(f) A recipient shall nowise
employment tests or criteria that
discriminate against handicapped
persons and shall ensure that
employment tests are adapted for use by
• persons who have handicaps that impair
sensory, manual, or speaking skills.
(g) A recipient shall not conduct a
preemployment medical examination or
make a preemployment inquiry as to
whether an applicant is a handicapped
person or as to the nature or severity of
a handicap except as permitted by the
Department of Justice in 28 CFR 42.513.
§ 7.6S Accessibility.
(a) General. A recipient shall operate
each program or activity receiving EPA
assistance so that such program or
activity, when viewed in its entirety, is
readily accessible to'and usable by
handicapped persons. This paragraph
does not:
(1) Necessarily require a recipienfcto
make each of its existing facilities or
every part of an existing facility
accessible to and usable by
handicapped persons.
(2) Require a recipient to take any
action that the recipient can
demonstrate would result in a
fundamental alteration in the nature of
its program or activity or in undue
financial and administrative burdens. If
an action would result in such an
alternation or such financial and
administrative burdens, the recipient
shall be required to take any other
action that would not result in such an
alteration or financial and
administrative burdens but would
nevertheless ensure that handicapped
persons receive the benefits and
services of the program or activity
receiving EPA assistance.
(b] Methods of making existing
programs accessible. A recipient may
comply with the accessibility
requirements of this section by making
structural changes, redesigning
equipment, reassigning services to
accessible buildings, assigning aides to
beneficiaries, or any other means that
make its program or activity accessible
to handicapped persons. In choosing
among alternatives, a recipient must
give priority to methods that offer
program benefits to handicapped
persons in the most integrated setting
appropriate.
(c) Deadlines. (1) Except where
structural changes in facilities are
necessary, recipients must adhere to the
provisions of this section within 60 days
after the effective date of this Part.
(2) Recipients having an existing
facility which does require alterations in
order to make a program or activity
accessible must prepare a transition
plan in accordance with § 7.75 within
six months from the effective date of
this Part. The recipient must complete
the changes as soon as possible, but not
later than three years from date of
award.
(d) Notice of accessibility. The
recipient must make sure lhat interested
persons, including those with impaired
vision or hearing, can find out about the
existence and location of the assisted
program services, activities, and
facilities that are accessible to and
usable by handicapped persons.
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1663
(e) Structural and financial feasibility.
This section does not require structural
alterations to existing facilities if
making such alterations would not be
structurally or financially feasible. An
alteration is not structurally feasible
when it has little likelihood of being
accomplished without removing or
altering a load-bearing structural
member. Financial feasibility shall lake
into account the degree to which the
alteration work is to be assisted by EPA
assistance, the cost limitations of the
program under which such assistance is
provided, and the relative cost of
accomplishing such alterations in
manners consistent and inconsistent
with accessibility.
5 7.70 New construction.
(a) General. New facilities shall be
designed and constructed to be readily
accessible to and usable by
handicapped persons. Alterations to
existing facilities shall, to the maximum
extent feasible, be designed and
constructed to be readily accessible to
and usable by handicapped persons.
(b) Any construction for which design
is initialed on or after the effective date
of this Part shall comply with the
accessibility requirements of this
section. Any construction for which
design was initiated prior to the
effective date of this Part shall comply
with accessibility requirements in the
Department of Health. Education and .
Welfare (now the Department of Health
and Human Services) nondiscrimination
regulation, 45 CFR 84.23. issued June 3.
1977. or with equivalent standards that
ensure the facility is readily accessible
to and usable by handicapped persons.
(c) Design, construction or alteration
of facilities in conformance with the
1980 "American National Standard
Specifications for Making Buildings and
Facilities Accessible to and Usable by
the Physically Handicapped." published
by the American National Standards
Institute. Inc.. constitutes compliance
with this section.*
(d) Exception. This section shall not
apply to the design, construction or
alteration of any portion of a building
that, because of its intended use. will
not reqnire accessibility to the public
beneficiaries or result in the
employment or residence therein of
physically handicapped persons.
§ 7.7S Transition plan.
If structural changes to facilities are
necessary to make the program
?The American National Standards Institute. Inc..
is located at 1430 Broadway. New York. N.Y. 10018.
A copy of the document may be purchased from this
Institute for $5 00 plus S2 00 shipping cost.
accessible to handicapped persons, a
recipient must prepare a transition plan.
(a) Requirements. The transition plan
must set forth the steps needed to
complete the structural changes required
and must be developed with the
assistance of interested persons.
including handicapped persons or
organizations representing handicapped
persons. At a minimum, the transition
plan must:
(1) Identify the physical obstacles in
the recipient's facilities that limit
handicapped persons" access to its
program or activity,
(2) Describe in detail what the
recipient will do to make the facilities
accessible.
(3) Specify the schedule for the steps
needed to achieve full program
accessibility, and include a year-by-year
timetable if the process will take more
than one year.
(4) Indicate the person responsible for
carrying out the plan.
(b) Availability. Recipients shall make
available a copy of the transition plan to
the OCR upon request and to the public
for inspection at either the site of the
project or at the recipient's main office.
Subpart D—Requirements for
Applicants and Recipients
§ 7.80 Applicants.
(a) Assurances.—(1) General.
Applicants for EPA assistance shall
submit an assurance with their
applications stating that, with respect to
their programs or activities that receive
EPA assistance, they will comply with
the requirements of this Part. Applicants
must also submit any other information
that the OCR determines is necessary
for preaward review. The applicant's
acceptance of EPA assistance is an
acceptance of the obligation of this
assurance and this Part.
(2) Duration of assurance.—(i) Real
property. When EPA awards assistance
in the form of real property, or
assistance to acquire real property, or
structures on the property, the assurance
will obligate the recipient, or transferee.
during the period the real property or
structures are used for the purpose for
which EPA assistance is extended, or
for another purpose in which similar
services or benefits are provided. The
transfer instrument shall contain a
covenant running with tho lanrl which
assures nondiscrimination. Where
applicable, the covenant shall also
retain a right of reverter which will
permit EPA to recover the property if the
covenant is ever broken.
(ii) Persona/property. When EPA
provides assistance in the form of
personal property, the assurance will
obligate the recipient for so long as it
continues to own or possess the
property.
(iii) Other forms of assistance. In all
olner cases, the assurance will obligafe
Ihe recipient for as long as EPA
assistance is extended.
(b) Wastewater treatment project
EPA Form 4700-4 shall also be
submitted with applications for
assistance under Title II of the Federal
Water Pollution Control Act.
(c) Compliance information. Each
applicant for EPA assistance shall
submit regarding the program or activity
Ihdl would receive EPA assistance:
(1) Notice of any lawsuit pending
against the applicant alleging
discrimination on Ihe basis of race.
color, sex. handicap, or national origin:
(2) A brief description of any
applications pending to other federal
agencies for assistance, and of federal
assistance being provided at the time of
the application: and
(3) A statement describing any civil
rights compliance reviews regarding the
applicant conducted during the two-year
period before the application, and
information concerning the agency or
organization performing the reviews.
(Approved by the Office of Managemenl and
Budget under Control Number 2000-0006.)
§ 7.85 Recipients.
(a) Compliance information. Each
recipient shall collect, maintain, and on
request of the OCR. provide the
following information to show
compliance with this Part:
- (1) A brief description of any lawsuits
pending against Ihe recipient that allege
discrimination which this Part prohibits:
(2) Racial/ethnic, national origin, sex
and handicap data, or EPA Form 4700-^1
informalion submitted with its
application:
(3) A log of discrimination complaints
which identifies the complaint, the date
it was filed, the date the recipient's
investigalion^was completed, the .-.
disposition, and the dale of disposition:
.and
i (4) Reports of any compliance reviews
conducted by any other agencies.
(b) Additional compliance
information. If necessary, the OCR may
require recipients to submit data and
information specific to certain programs
to determine compliance where there is
reason to believe that discrimination
may exist in a program or activity
receiving EPA assistance or to
investigate a complaint alleging
discrimination in a program or activity
receiving EPA assistance. Requests shall
be limited to data and information
which is relevant to determining
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. 1664 Federal Register / 'Vol. 49, No. 8 / Thursday. January 12, 1984 / Rules and Regulations
compliance and shall be accompanied
by a written statement summarizing the
complaint or setting forth the basis for
the belief that discrimination may exist.
(c) Self-evaluation. Each recipient
must conduct a self-evaluation of its
administrative policies and practices, to
consider whether such policies and
practices may involve handicap
discrimination prohibited by this Part.
When conducting the self-evaluation,
the recipient shall consult with
interested and involved persons
including handicapped persons or
organizations representing handicapped
persons. The evaluation shall be
completed within 18 months after the
effective date of this Part.
(d) Preparing compliance information.
In preparing compliance information, a
recipient must:
(1) [Reserved)
(2) Use the racial classifications set
forth in § 7.25 in determining categories
of race, color or national origin.
(e) Maintaining compliance
information. Recipients must keep
records for (a) and (b) of this section for
three (3) years after completing the
project. When any complaint or other
action for alleged failure to comply with
this Part is brought before the three-year
period ends, the recipient shall keep
records until the complaint is resolved.
(f) Accessibility to compliance
information. A recipient shall:
(1) Give the OCR access during
normal business hours to its books.
records, accounts and other sources of
information, including its facilities, as
may be pertinent to ascertain
compliance with this Part:
(2) Make compliance information
available to the public upon request: and
(3) Assist in obtaining other required
information that is in the possession of
other agencies, institutions, or persons
not under the recipient's control. If such
party refuses to release that information,
the recipient shall inform the OCR and
explain its efforts to obtain the
information.
(g) Coordination of compliance effort.
If the recipient employs fifteen (15) or
more employees, it shall designate at
least one person to coordinate its efforts
to comply with its obligations under this
Part.
(Approved by the Office of Management and
Budget under Control Number 2000-0008.)
{ 7.90 Grievance procedure*.
(a) Requirements. Each recipient shall
adopt grievance procedures that assure
the prompt and fair resolution of
complaints which allege violation of this
Part.
(b) Exception. Recipients with fewer
than fifteen (IS) full-time employees
need not comply with this section unless
the OCR finds a violation of this Part or
determines that creating a grievance
procedure will not significantly impair
the recipient's ability to provide benefits
or services.
§ 7.95 Notice of nondlscrlmlnatlon.
(a) Requirements. A recipient shall
provide initial and continuing notice
that it does not discriminate on the basis
of race, color, national origin, or
handicap in a program or activity
receiving EPA assistance or, in programs
covered by Section 13. on the basis of
sex. Methods of notice must
accommodate those with impaired
vision or hearing. At a minimum, this
notice must be posted in a prominent
place in the recipient's offices or
facilities. Methods of notice may also
include publishing in newspapers and
magazines, and placing notices in
recipient's internal publications or on
recipient's printed letterhead. Where
appropriate,.such notice must be in a
language or languages other than
English. The notice must identify the
responsible employee designated in
accordance with § 7.85.
(b) Deadline. Recipients of assistance
must provide initial notice by thirty (30)
calendar days after award and
continuing notice for the duration of
EPA assistance.
§7.100 Intimidation and retaliation
prohibited.
No applicant, recipient, nor other
person shall intimidate, threaten, coerce.
or discriminate against any individual or
group, either
(a) For the purpose of interfering with
any right or privilege guaranteed by the
Acts or this Part, or
(b) Because the individual has filed a
complaint or has testified, assisted or
participated in any way in an
investigation, proceeding or hearing
under this Part, or has opposed any
practice made unlawful by this
regulation.
Subpart E—Agency Compliance
Procedures
§ 7.105 General policy.
EPA's Administrator. Director of the
Office of Civil Rights. Project Officers
and other responsible officials shall
seek the cooperation of applicants and
recipients in securing compliance with
this Part, and are available to provide
help.
§ 7.110 Preaward compliance.
(a) Review of compliance information.
Within EPA's application processing
period, the OCR will determine whether
the applicant is in compliance with this
Part and inform the Award Official. This
determination will be based on the
submissions required by 5 7.80 and any
other information EPA receives during
this time (including complaints) or has
on file about the applicant. When the
OCR cannot make a determination on
the basis of this information, additional
information will be requested from the
applicant, local government officials, or
interested persons or organizations,
including handicapped persons or
organizations representing such persons.
The OCR may also conduct an on-site
review only when it has reason to
believe discrimination may be occurring
in a program or activity which is the
subject of the application.
(b) Voluntary compliance. If the
review indicates noncompliance, an
applicant may agree in writing to take
the steps the OCR recommends to come
into compliance with this Part. The OCR
must approve the written agreement
before any award is made.
(c) Refusal to comply. If the applicant
refuses to enter into such an agreement,
the OCR shall follow the procedure
established by paragraph (b) of § 7.130.
§ 7.115 Postaward compliance.
(a) Periodic review. The OCR may
periodically conduct compliance
reviews of any recipient's programs or
activities receiving EPA assistance,
including the request of data and
information, and may conduct on-site
reviews when it has reason to believe
that discrimination may be occurring in
such programs or activities.
(b) Notice of review. After selecting a
recipient for review or initiating a
complaint investigation in accordance
with § 7.120. the OCR will inform the
recipient of:
(1) The nature of and schedule for.
review, or investigation: and
(2) Its opportunity, before the
determination in paragraph (d) of this
section is made, to make a written
submission responding to, rebutting, or
denying the allegations raised in the
review or complaint.
(c) Postreview notice. (1) Within 180
calendar days from the start of the
compliance review or complaint
investigation, the OCR will notify the
recipient in writing by certified mail.
return receipt requested, of:
(i) Preliminary findings;
(ii) Recommendations, if any, for
achieving voluntary compliance; and
(iii) Recipient's right to engage in
voluntary compliance negotiations
where appropriate.
(2) The OCR will notify the Award
Official and the Assistant Attorney
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Federal Register / Vol. 49. No. 8 / Thursday. January 12, 1964 / Rules and Regulations 16C5
General for Civil Rights of the
preliminary findings of noncompliance.
(d) Formal determination of
noncompliance. After receiving the
notice of the preliminary finding of
noncompliance in paragraph (c) of this
section, the recipient may:
(1) Agree to the OCR's
recommendations, or
(2) Submit a written response
sufficient to demonstrate that the
preliminary findings are incorrect, or
that compliance may be achieved
through steps other than those
recommended by OCR.
If the recipient does not take one of
these actions within fifty (SO) calendar
days after receiving this preliminary
notice, the OCR shall, within fourteen
(14) calendar days, send a formal
written determination of noncompliance
to the recipient and copies to the Award
Official and Assistant Attorney General.
(e) Voluntary compliance time limits.
The recipient will have ten (10) calendar
days from receipt of the formal
determination of noncompliance in
which to come into voluntary
compliance. If the recipient fails to meet
this deadline, the OCR must start
proceedings under paragraph (b) of
§ 7.130.
(f) Form of voluntary compliance
agreements. All agreements to come into
voluntary compliance must:
(1) Be in writing:
(2) Set forth the specific steps the
recipient has agreed to take, and
(3) Be signed by the Director. OCR or
his/her designee and an official with
authority to legally bind the recipient.
§ 7.120 Complaint Investigations.
The OCR shall promptly investigate
all complaints filed under this section
unless the complainant and the party
complained against agree to a delay
pending settlement negotiations.
(a) Who may file a complaint. A
person who believes that he or she or a
specific class of persons has been
discriminated against in violation of this
Part may file a complaint. The complaint
may be filed by an authorized
representative. A complaint alleging
employment discrimination must
identify at least one individual
aggrieved by such discrimination.
Complaints solely alleging employment
discrimination against an individual on
the basis of race, color, national origin.
sex or religion shall be processed under
the procedures for complaints of
employment discrimination filed against
recipients of federal assistance (see 28
CFR Part 42, Subpart H and 29 CFR Part
1691). Complainants are encouraged but
not required to make use of any
grievance procedure established under
§ 7.90 before filing a complaint. Filing a
complaint through a grievance
procedure does not extend the 100 day
calendar requirement of paragraph (b)(2
of this section.
(b) Where, when and how to file
complaint. The complainant may file a
complaint at any EPA office. The
complaint may be referred to the region
in which the alleged discriminatory acts
occurred.
(1) The complaint must be in writing
and it must describe the alleged
discriminatory acts which violate this
part.
(2) The complaint must be filed within
ISO calendar days of the alleged
discriminatory acts, unless the OCR
waives the time limit for good cause.
The filing of a grievance with the
recipient does not satisfy the
requirement that complaints must be
filed within 180 days of the alleged
discriminatory acts.
(c) Notification. The OCR will notify
the complainant and the recipient of the
agency's receipt of the complaint within
five (5) calendar days.
(d) Complaint processing procedures.
After acknowledging receipt of a
complaint, the OCR will immediately
initiate complaint processing
procedures.
(1) Preliminary investigation (i)
Within twenty (20) calendar days of
acknowledgment of the complaint, the
OCR will review the complaint for
acceptance, rejection, or referral to the
appropriate Federal agency.
(ii) If the complaint is accepted, the
OCR will notify the complainant and the
Award Official. The OCR will also
notify the applicant or recipient
complained against of the allegations
and give the applicant or recipient
opportunity to make a written
submission responding to. rebutting, or
denying the allegations raised in the
complaint.
(iri) The party complained against
may send the OCR a response to the
notice of complaint within thirty (30)
calendar days of receiving it.
(2) Informal resolution, (i) OCR shall
attempt to resolve complaints-informajly
whenever possible. When a complaint
cannot be resolved informally. OCR
shall follow the procedures established
by paragraphs (c) through (e) of § 7.115.
(ii) (Reserved).
(e) Confidentiality. EPA agrees to
keep the complainant's identity
confidential exce'pt to the extent
necessary to carry out the purposes of
this Part, including the conduct of any
investigation, hearing, or judicial
proceeding arising thereunder.
Ordinarily in complaints of employment
discrimination, the name of the
complainant will be given to the
recipient with the notice of complaint.
(f) (Reserved).
(g) Dismissal of complaint. If OCR's
investigation reveals no violation of this
Part, the Director. OCR. will dismiss the
complaint and notify the complainant
and recipient.
§ 7.125 Coordination with other agencies.
If. in the conduct of a compliance
review or an investigation, it becomes
evident that another agency has
jurisdiction over the subject matter.
OCR will cooperate with that agency
during the continuation of the review of
investigation. EPA will:
(a) Coordinate its efforts with the
other agency, and
(b) Ensure that one of the agencies is
designated the lead agency for this
purpose. When an agency other than
EPA serves as the lead agency, any
action taken, requirement imposed, or
determination made by the lead agency.
other than a final determination to
terminate funds, shall have the same
effect as though such action had been
taken by EPA.
§ 7.130 Actions available to EPA to obtain
compliance.
(a) General. If compliance with this
Part cannot be assured by informal
means. EPA may terminate or refuse to
award or to continue assistance. EPA
may also use any other means
authorized by law to get compliance.
including a referral of the matter to the
Department of Justice.
(b) Procedure to deny, annul, suspend
or terminate EPA assistance.
(1) OCR finding. If OCR determines
that an applicant or recipient is not in
compliance with this Part, and if
compliance cannot be achieved
voluntarily. OCR shall make a finding of
noncompliance. The OCR will notify the
applicant or recipient (by registered
mail, return receipt requested) of the
find>ng. the action proposed to be taken.
'and tfie opportunity for an evidentiary
hearing.
(2) Hearing, (i) Within 30 days of
receipt of the above notice, the applicant
or recipient shall file a written answer.
under oath or affirmation, and may
request a hearing.
(ii) The answer and request for a
hearing shall be sent by registered mail.
return receipt requested, to tne Cnief
Administrative Law judge (ALJ) (A-110).
United States Environmental Protection
Agency. 401 M Street. S.W..
Washington. D.C. 20460. Upon receipt of
a request for a hearing, the ALJ will
send the applicant or recipient a copy of
the ALJ's procedures. If the recipient
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1666 Federal Register / Vol. 49, No. 8 / Thursday. January 12, 1984 / Rules and Regulations
does not request a hearing, it shall be
deemed to have waived its right to a
hearing, and the OCR finding shall be
deemed to be the ALJ's determination
(3) Final decision and disposition. |i)
The applicant or recipient may. within
30 days of receipt of the ALJ's
determination, file with the
Administrator its exceptions to that
determination. When such exceptions
ars filed, the Administrator may. within
45 days after the ALJ's determination.
serve to the applicant or recipient, a
notice that he/she will review the
determination. In the absence of either
exceptions or notice of review, the ALJ's
determination shall constitute the
Administrator's final decision.
(ii) If the Administrator reviews tr-.e
ALJ's determination, all parties shall be
given reasonable opportunity !o file
written statements. A copy of the
Administrator's decision will be scr.t to
the applicant or recipient.
(iii) If the Administrator's decision is
to deny an application, or annul.
suspend or terminate EPA assistance,
that decision becomes effective thirty
(30) days from the date on which the
Administrator submits a full written
report of the circumstances and grounds
for such action to the Committees of the
Mouse and Senate having legislative
jurisdiction over the program or activity
involved. The decision of the
Administrator shall not be subject to
further administrative appeal under
EPA's General Regulation for Assistance
Programs (40 CFR Part 30. Subpart L).
(4) Scope of decision The denial.
annulment, termination or supension
shall be limited to the particular
applicant or recipient who was found to
have discriminated, and shall be limited
in its effect to the particular program or
the part of it in which the discrimination
was found.
§ 7.13$ Procedure for regaining eligibility.
(a) Requirements. An applicant or
recipient whose assistance has been
denied, annulled, terminated, or
suspended under this Part regains
eligibility as soon as it:
(1) Provides reasonable assurance
that it is complying and will comply
with this Part in the future, and
(2) Satisfies the terms and conditions
for regaining eligibility that are specified
in the denial, annulment, termination or
suspension order.
(b) Procedure. The applicant or
recipient must submit a written request
to restore eligibility to the OCR
declaring that it has met the
requirements set forth in paragraph (a)
of this section. Upon determining that
these requirements have been met, the
OCR must notify the Award Official.
and the applicant or recipient that
eligibility has been restored.
(c) Rights on denial of restoration of
eligibility. If the OCR denies a request to
restore eligibility, the applicant or
recipient may file a written request for a
hearing before the EPA Chief
Administrative Law Judge in accordance
with paragraph (c) § 7.130. listing the
reasons it believes the OCR was in
eiroi.
Appendix A—EPA Assistance Programs aa
Listed ID the "Catalog of Federal Domeelic
Assistance"
1. Assistance provided by the Office of Air.
.'•'DISC and Radiation under the Clean Air Act
of I*1?, as amended: Pub I.. S5-9b. 42
-------
40 CFR PART 25 -
PUBLIC PARTICIPATION PROGRAMS UNDER THE
RESOURCE CONSERVATION AND RECOVERY ACT. THE SAFE DRINKING
WATER ACT AND THE CLEAN WATER ACT
- IV -
-------
FRIDAY, FEBRUARY 16, 1979
PART V
ENVIRONMENTAL
PROTECTION
AGENCY
PUBLIC PARTICIPATION IN
PROGRAMS UNDER THE
RESOURCE
CONSERVATION AND
RECOVERY ACT, THE
SAFE DRINKING WATER
ACT AND THE CLEAN
WATER ACT
Final Regulations
-------
10286
Title 40—Protection of Environment
CHAPTER I—ENVIRONMENTAL
PROTECTION AGENCY
[FRL 1041-1]
PART 25—PUBLIC PARTICIPATION IN
PROGRAMS UNDER THE RESOURCE
CONSERVATION AND RECOVERY
ACT, THE SAFE DRINKING WATER
ACT, AND THE CLEAN WATER ACT
Final Regulation*
AGENCY: Environmental Protection
Agency.
ACTION: Rule.
SUMMARY: These regulations are in-
tended to encourage, provide for, and
assist public participation under trie
Resource Conservation and Recovery
Act. the Safe Drinking Water Act, and
the Clean Water Act. They replace ex-
isting regulations for public participa-
tion In water programs and interim
final regulations for public participa-
tion In solid waste management,. The
regulations include general provisions
which require open processes of gov-
ernment, and efforts to promote public
awareness in the course of making de-
cisions in programs and activities
under the three Acts. Also included
are requirements which apply to spe-
cific public participation mechanisms,
such as public hearings and advisory
groups. These regulations do not re-
quire the use of the specific mecha-
nisms. The mechanisms must be used
only. If they are required in program
regulations. Public participation regu-
lations for one covered program are
being promulgated simultaneously
with these regulations. They are regu-
lations governing public participation
In the Municipal Wastewater'Treat-
ment Facility Construction Grants
Program under the Clean Water Act.
These regulations appear elsewhere in
this Issue of the FEDERAL REGISTER.
DATES: These regulations are effec-
tive on February 16, 1979. except as
otherwise specified In § 25.2.
ADDRESSES: Comments submitted
on these regulations may be inspected
at the Public Information Reference
Unit, EPA Headquarters. Room 2922,
-Waterside Mall. 401 M Street. SW..
Washington. D.C. between 8:00 a.m.
and 4:30 p.m. on business days.
FOR FURTHER INFORMATION
CONTACT:
Lee Daneker. Office of Water and
Waste Management
-------
RULES AND REGULATIONS
10287
quirements would be one of the most
effective actions which EPA could
lake to generate public interest and
participation. In contrast, many, al-
though not all. of those commenting
as representatives of implementing
agencies expressed concern that the
regulations were too rigid and detailed
and would offer too many opportuni-
ties to stop projects or to take legal
action on minor procedural issues.
These commenters called for a further
relaxation of requirements, elimina-
tion of detail, and provision of addi-
tional flexibility. In many instances.
these commenters recognized the
flexibility which had been introduced
relative to the March concept papers.
but indicated that the changes were
not sufficient. Some commenters
called for EPA to eliminate all require-
ments and instead to limit itself to set-
ting objectives ("performance stand-
ards") which could be fulfilled
through a variety of mechanisms. In
support of performance standards.
many elected officials or their repre-
sentatives commented that the more
peneral performance standard ap-
proach would maintain and protect
the authority of State and local offi-
cials from Federal encroachment.
EPA agrees that the regulations
should provide maximum flexibility
and discretion to implementing agen-
cies and should not infringe improper-
ly upon the authority of other govern-
mental units. The Agency is also sensi-
tive to those who accurately pointed
out Ihe strong positive relationship be-
tween firm requirements, credible
public participation efforts, and the
willingness of the public to partici-
pate In revising the proposed Part 25.
EPA has attempted-to provide flexibil-
ity wherever It would not interfere
\vitri public involvement. In a limited
number of Instances where it appeared
necessary and justified. EPA has opted
Icir more specific requirements. In gen-
eral, the final Part 25 moves In the di-
rection of fewer specific requirements
lhan the proposed version. The follow-
in- is a list of changes in the final reg-
ui.-uion which have provided increased
flexibility and discretion relative to
'.he proposed Part 25. existing Part 105
• Public Participation in Water Pro-
grams) and interim final Part 249
Public Participation in Solid Waste
Management):
1. EPA non-policy rulemakmg was
covered In proposed Part 25. It is spe-
cifically excluded from final Part 25.
2 Activities covered by Part 105 but
excluded, except as discretionary ele-
ments, from the public participation
requirements of final Part 25 are as
follows: 40 CPR Part 33 (Subagree-
ments). Part 39 (Loan Guarantees f"r
Construction of Treatment Works).
Part 40 (Research and Development
Grants). Part 45 (Training Grants and
Manpower Forecasting) and Part 46
(Fellowships).
3. Final Part 25 eliminates the
annual State report on public partici-
pation required by Part 105.3.
4. Part 105.3 (a) and (c) require that
informational materials be mailed di-
rectly to persons on each agency's
mailing list. Part 249.4 (b) and (c) re-
quired periodic dissemination of infor-
mational materials. Final Part 25.4(b)
requires only that notice of the avail-
ability of materials be mailed, rather
than the materials themselves or sum-
maries of the materials.
5. Part 105.4(d). Part 249.4 and
proposed Part 25.3(c) required notices
and informational materials to be sent
to the entire agency mailing list. Final
Part 25.4(b)(5) permits segmenting of
' the list and mailing notices of events
(or of availability of materials) only to
appropriate portions of the list.
6. The requirement of Part 105.4(b)
and Part 249.4(d). for each agency to
have "standing arrangements" for con-
sultation with the public, is deleted
from final Part 25: although Part 25
continues to require consultation on
significant decisions.
7; The requirement of Part 105.4(e).
that copying facilities be available at
Information depositories, is changed to
a recommendation in final Part
25.4(b)(3). Part 249.4 (f) and (1) re-
quired that Information on the avail-
ability of copying facilities at conve-
nient locations and at reasonable cost
to the public be available. This re-
quirement is deleted.
8. The recommendation In proposed
Part 25.3(b). that agencies target in-
formational materials to specific seg-
ments of the public, is changed in
final Part 25.4(b)(2) to a recommenda-
tion to consider preparing targeted
materials.
9. Proposed Part 25.3(b) required
that "relevant" documents be placed
in information depositories. Part
249(f) required that agencies shall pro-
vide, either directly or through others.
in convenient locations, one or more
public collections of Solid and Hazard-
ous Waste Management reports perti-
nent to the geographic area. Final
Part 25.4(b)(3) limits the documents
that must be placed in depositories to
those relating to significant decisions.
10. The requirement of Part
105.7(d). that public meeting notices
be mailed as soon as the meetingTs
scheduled, is deleted from the final
Part 25.
11. The requirement of Part 105.7(d)
and Part 249.-7(d). that public hearing
notices be mailed as soon as the hear-
ing Is scheduled, is deleted from the
final Part 25.
12. The requirement of Part 105.7(g)
and Part 249.7(g) to publish the hear-
ing agenda in the public hearing
notice Is deleted from the final Part
25.
13. Part 105.7(c) requires that cases
of doubt over whether to hold a public
hearing be resolved in favor of holding
a hearing. Part 249.7(c) requires that a
hearing be held if there is any public
Interest. These requirements are de-
leted from the final Part 25.
14. Final Part 25.5(b) gives Regional
Administrators the authority to waive
public hearing notice requirements in
emergency situations.
15. Final Part 25.5(c) permits the
agency holding a public hearing to
prepare a tape recording or other com-
plete record of the hearing instead of
a transcript and make it available to
the public.
16. The requirement for financial
disclosure by advisory group members.
proposed Part 25.3(d)(iii)(D). is de-
leted from the final Part 25.
17. Final Part 25.7(c) provides new
flexibility in advisory group member-
ship requirements and permits EPA to
waive those requirements for grantees
which cannot meet the requirements
after making active, good faith efforts
to do so. Proposed Part 25 Included a
less flexible membership requirement
and made no provision for a waiver.
• 18. Final Part 25.10 permits modifi-
cation of the public participation work
plan with the agreement of the Re-
gional Administrator. No provision for
modifying the work plan was included
In the proposed Part 25.
19. Public Participation Summaries
are deleted from the final Part 25 in
favor of. Responsiveness Summaries
(see final-Part 25.11).
20. Final Part 25.7(e) provides an in-
creased State and local agency role in
advisory group training. No State and
local rule was provided in proposed
Part 25.
EPA believes the balance which the
final regulations achieve between
flexibility and specificity recognizes
the public's expressed desire for firm
requirements yet responds effectively
to the legitimate concern of potential
Implementing agencies that they have
the freedom to tailor their programs
to specific local, regional or Statewide
needs.
SUMMARY or RESPONSE TO PUBLIC
' * " COMMENT
The following sections respond to
other major points raised in comments
by the public made in writing, over the
toll-free line, at the public meeting.
and at the public hearing.
1. Application of proposed Part 25 to
all EPA programs. In the preamble to
the proposed regulations. EPA ques-
tioned whether.they should be applied
to all programs administered by EPA.
Public response to this was strongly In
favor of consistent requirements for
the entire Agency. Comments Indicat-
FEDERAL REGISTER, VOL 44, NO. S4—OMOAY. FEBRUARY 16. 1979
31;
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RULES AND REGULATIONS
ed that Inconsistent requirements
were a significant factor Impeding
public Involvement in Agency pro-
grams. EPA is responding to this by
the development of an Agency-wide
policy on public participation. This
policy will require each program to de-
velop regulations or guidance imple-
menting it. The Agency will monitor
program performance under this ap-
proach to determine whether it is suc-
cessful In achieving consistent public
participation requirements and oppor-
tunities for those seeking to become
Involved in Agency programs.
2. Requirements will not guarantee a.
successful public participation effort
Many commenlers stated that require-
ments were not sufficient to assure ef-
fective public Involvement. Some com-
menting agencies further stated that,
since requirements would not in them-
selves be effective. EPA appeared to be
depending too heavily upon them.
EPA recognizes that requirements,
while necessary, are only one part of
making public participation successful.
Equally Important is the conduct of
effective programs of public education
as well as the attitude, energy, and
creativity with which implementing
agencies. Including EPA, undertake
their public participation responsibil-
ities. Another significant factor Is the
availability of agency staff knowledge-
able about public participation tech-
niques. EPA Is taking action to meet
this last need by developing and carry-
Ing out a training program In public
participation to enhance the capabili-
ties of EPA, State and local agency
.staff.
3. Relationship of Part 25 to pro-
gram regulations and guidance. Many
commenters Indicated their belief that
Part 25 established new requirements
that advisory groups be formed and
public hearings held. This is not the
case. As explained In the new intro-
ductory section 25.1. Part 25 estab-
lishes general requirements for open
processes of government through
public Information, public notification,
and public consultation prior to sig-
nificant decisions, but It does not man-
date the use of specific public partici-
pation mechanisms, such as advisory
groups, meetings, and hearings. These
are required only when mandated in
program regulations or specified at
the discretion of a responsible official.
The final section of this preamble In-
cludes a listing of other EPA regula-
tions which have been or will be re-
vised to Implement the requirements
of Part 25.
The role of program regulations, or
EPA policy guidance memoranda, in
implementing the Part 25 regulations
is to emphasize the applicability of the
general Part 25 public Information, no-
tification and consultation require-
ments to significant decisions in the
affected programs. In some Instances
program regulations or guidance will
also Identify significant decisions or
processes where specific requirements
will apply (e.g.. holding a public meet-
ing or hearing). The use of additional
specific mechanisms at these decision
points or at other decisions not refer-
enced by EPA requirements is discre-
tionary with the implementing agency.
If public participation is carried out
under EPA grant, all reasonable costs
will be grant eligible If Identified in a
public participation work plan or oth-
erwise approved by EPA.
Other EPA "guidance" will be In the
form of handbooks or manuals for im-
plementing agency staff or for the
participating public. These are Intend-
ed to assist the public and implement-
Ing agency staJf by providing sugges-
tions for ways to meet requirements,
samples .or models of work which
meets requirements, and examples of
successful public participation efforts.
4. Application of Part 25 to pro-
grams under the Saje Drinking Water
Act. The public participation regula-
tions are intended to encourage public
Involvement _ln the decision-making
process In programs under the Re-
source Conservation and Recovery
Act, the Clean Water Act. and the
Safe Drinking Water Act. However.
not all sections are relevant to every
program. .For Instance, several States'
comments reflected a concern that the
advisory group requirements In the
proposed regulations would .require
the establishment of such committees
in programs under the Safe Drinking
•Water Act. This concern is unfounded.
The advisory group section applies
only where committees are required in
program regulations. No requirement
for such committees appears in the
regulations Implementing the Safe
Drinking Water Act; nor is such a re-
quirement contemplated.
The regulations allow flexibility and
discretion In Implementation within
each covered program. The guidance
and regulation which will be developed
by the drinking water program, and
other programs, will reflect options
which are compatible with each pro-
gram's capabilities and the opportuni-
ties within the program for meaning-
ful public participation.
5. Application to approved State pro-
grams. Each of the three Acts^desig-
nates certain programs which ttn be
administered by a State, instead of by
EPA. If the State program meets crite-
ria established in the law and EPA
regulations. The proposed Part 25 In-
dicated that EPA. was required to pro-
vide for public participation In the
process of making a determination to
approve such State programs. It also
provided that, after approval, the
State would be responsible for meeting
the public participation requirements
which had been the responsibility of
EPA. Like the proposed regulations,
final Part 25 requires EPA to provide
for public Involvement in the process
of making Its determination regarding
approval of all State programs. How-
ever, the final Part 25 indicates that
public participation requirements for
the NPDES Permit Program, the
State Hazardous Waste Program, the
Dredge and Pill Permit Program, and '"**
the Underground Injection Control •*
Program are contained in the Consoli-
dated Permit Program regulations (40
CFR Part 123). These regulations
embody the requirements of Part 25.
Public participation requirements for
the Construction Grants Program are
found in 40 CFR Part 35. Subparts E
and F. States which undertake Con-
struction Grants Program functions
after approval by EPA are responsible
for meeting applicable public partici-
pation requirements of these regula-
tions. Including requirements of Part
25 which are incorporated by refer-
ence.
One Stale expressed concern that
the regulations would apply to all
State activities which were adminis-
tered under the annual State program
administration grants authorized
under section lt>6 of the Clean Water
Act, including State-initiated activities
which are not required by the Clean
Water Act. which are not delegated to
the State by EPA, and which are not
funded by EPA grant. While public
participation in purely State activities
of this type may be desirable, such
participation is at the discretion ol the
State and would not be required by
these regulations.
6. Public participation objectives.
Virtually all commenters supported
the public participation objectives of
the proposed Part 25; however, several
commenters felt that promoting sup-
port for environmental laws was not a
proper role for administrative agen-
cies. EPA agrees and has changed this
objective to read, "to encourage public
involvement in implementing environ-
mental laws."
7. Public information requirements.
Most commenters recognized and sup-
ported the need for public information
as a prerequisite to effective public
partfcipationT however, 'many stated
that the proposed requirements were
not clear and. In some cases, were po-
tentially burdensome. In response to
comments of this nature, EPA has
made the following modifications to
the public information provisions of
the regulations: permitted segmenting
mailing lists by geographic or Interest
area and specified that only the appro-
priate portion of the list need receive
agency mailings; specified that only
summaries and notices of availability
need be sent to the list (or appropriate
segment) rather than entire docu-
FEDERAL REGISTER, VOL 44, NO. 34—FRIDAY, FEBRUARY 16, 1979
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RULES AND REGULATIONS
10289
merits; specified that documents avail-
able In depositories need include only
those relating to significant or contro-
versial issues: clarified the term "rea-
sonable costs" of copying charges by
reference to prevailing commercial
rates.
8. Public hearing notice require-
ments. Comment on the proposed
public hearing notice requirements
*as sharply divided between State and
local agencies which generally opposed
any increase in the 30 days required
by existing regulations and potential
participants (including private citl:..
zcns. public Interest groups, and eco-
nomic interests) which supported the
45 day notice requirement included in
ihe proposed regulations. The record
of citizen comment Indicates clearly
that 30 days has often been Inad-
equate to allow notices to be circulat-
ed, documents obtained and reviewed.
and testimony prepared. Accordingly.
the final regulations retain 45 days as
iMe standard public hearing notice re-
quirement; however. EPA has respond-
ed to the comment by State and local
agencies by including a provision to
reduce the notice requirement, to not
less than 30 days, where EPA finds
mat the longer notice is not needed to
encourage public participation in a
particular hearing.
9 Emphasis on advisory groups.
Many commenters expressed concern
that the regulations placed excessive
emphasis on the use of advisory
groups. We do not believe this concern
is justified. Part 25 does not require
the formation of any advisory groups.
Such groups must be formed only
when, required by program regula-
tions. Advisory groups have been a re-
quirement in the Water Quality Man-
agement (section 208) program for sev-
eral years. New program regulations
for the Construction Grants Program
«.ill require advisory groups, but in
only 30 percent of facilities plans. No
advisory group requirements are con- .
lemplated for the Clean Lakes Pro-
cram. Underground Injection Control
Program. Public Water Supply Pro-
gram. State Hazardous Waste Pro-
cram. or the NPDES Permit Program. .,
The question of whether they would '
^e required under State Solid Waste
Management Program grants is still
open. Given this record, we do not
agree that the Agency places excessive
emphasis on the use of advisory
groups.
10 Role of advisory groups. The pro-
posed regulations staled that advisory
uroups were Intended to provide advice
and recommendations to elected deci-
Monmakers and to encourage an inter-
change among the Interests represent-
ed on the group. Some commenters
felt that the final decision-making role
°f elected officials should be empha-
sized more' strongly. We agree, and
have added language to the advisory
group section further emphasizing this
point.
11. Advisory ~ group membership.
Comments from most State and local
agencies and public officials indicated
that the,advisory group membership
requirements of proposed Part 25 pro-
vided them too little flexibility in con-
stituting such groups. They expressed
particular objection to the require-
ment that a majority of advisory
group members be private citizens and
public interest group members who
had no substantial economic interest
in the grant activity. Some agencies In-
dicated that they would be unable to
locate many individuals without an
economic interest in the grant acitlv-
ity who would be willing to serve on
advisory groups. Some commenting
agencies and public officials indicated
that no single segment of the public
should constitute a majority on the
advisory group. Other commenting
agencies and officials expressed ap-
proval of the changes In the advisory
group requirements that had been
made relative to the March concept
papers—especially the increased em-
phasis on the role of public officials
and the change allowing economic in-
terests to be represented on advisory
groups. Some of these commenters in-
dicated that, with these changes, the
advisory group membership require-
ments were satisfactory. Others indi-
cated that the requirements were still
too demanding and inflexible, slated
that ihey could nol meel Ihem. and
called for addilional changes and in-
creased flexibility.
A large majority of private citizen
and public (merest group commenters
expressed approval of Ihe advisory
group membership requirements of
proposed Part 25. Many of Ihese com-
menlers described Iheir experiences
indicating lhat non-economic Interests
were under-represenled on advisory
groups. These commemers supported
carefully structured advisory group.
membership requirements, especially
the proposed requirement for a major-
ity of privale citizens and public inter-
est group members. Mosl of Ihese
commenters indicated lhal this meas-
ure would go far to remedy, the prob-
lem of under representation for non- '
economic interests. However, some
called upon EPA to require an even
longer proportion of -tndlvtdO'als who
were Interested in the grant supported
activily solely from an environmenlal
or taxpayer perspective.
EPA agrees lhal Ihere must be flexi-
bility in Ihe requirements for advisory
group membership. The final regula-
lions require lhal the advisory group
be composed of four segments in sub-
stantially equal proportion. These are
private citizens, public interest group
members, economic Interests, and
public officials. In response to com-
menters who requested EPA lo ex-
plain Ihe lerm "privale cillzen." Ihe
regulations indicate thai this term
refers lo Individuals wilh no greater
interest in ihe grant activily than an
average laxpayer. ralepayer. or con-
sumer.
The provision lhal segments need be
only "substantially equal" In propor-
tion is intended lo provide grantees
with flexibility lo implement the regu-
lations while at the same lime re-
sponding lo ihose commenters who
called upon EPA to carefully specify
the balance of Interests on the group.
This language allows some imbalance
among the categories of membership.
For example, on a 20 person advisory,
group, ihe requirements would be mei
If Iwo categories had only four mem-
bers while the other two had six mem-
bers. However. If one or more catego-
ries had only Ihree members while
olhers had six or seven, ihe require-
menl lhal Ihe categories be in sub-
stantially equivalent proportions
would nol be mel.
Many agency commenlers expressed
concern lhal Ihey could nol meet advi-
sory group requirements because they
could nol locale privale citizens or
public Interest group representatives
who would be willing lo serve on advi-
sory groups. To respond lo Ihese com-
menlers. Ihe final regulations provide
lhal grantees who have carried oul an
aggressive effort'lo recrull members lo
meel Ihe requirements but cannot do
so will be considered in compliance
wilh Ihe regulations. In a case such as
this. EPA will approve Ihe advisory
group composition which has resulted
from the grantee's recrultmenl efforts
provided EPA Is satisfied lhal ihose
efforts meel Ihe performance standard
set forth in the regulations.
12. financial disclosure by advisory
group members. Many commenters in-
dicaled lhal a financial disclosure re-
quirement would discourage participa-
lion of many prospective advisory
group members. We agree, and accord-
ingly we have deleted the financial dis-
closure requirements from the final
regulations. We do. however, believe il
Is useful for advisory group members
lo know, in general. Ihe lype of inler-
.esi whicbj^ach member has in a plan
or project under developmenl. For ex-
ample, individuals on Ihe advisory
group should indicate to one another
whelher Ihey are represenling envi-
ronmental inlerests; economic inter-
ests such as agriculture, silviculture.
or real estate; recreational inlerests:
consumer inlerests or olhers.
13. Grantee and advisory group re-
sponsibilities. Many commenlers indi
caled the responsibilities of Ihe advir?-
ry groups should be stated In detail in
the final regulations. In support of
this recommendation, Ihese com-
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33 :;..,
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RULES AND REGULATIONS
menters cited--.examples of advisory
groups that-were formed but not uti-
lized effectively. EPA does not believe
It Is proper to Include a detailed dis-
cussion of the responsibilities of gran-
tees and advisory groups In the regula-
tions. It is. however, appropriate to
expand somewhat upon the descrip-
tion of responsibilities and authorities
Included In the proposed regulations.
and this has been done in the final
regulations.
14. Use of existing advisory groups
to meet public participation require-
ments. Some State and substate agen-
cies which have established advisory
groups, boards or cpmmissions ques-
tioned whether these groups could be
used to satisfy the advisory group re-
quirements. EPA wishes to encourage
coordination of public participation re-
quirements and activities wherever
possible. This is clearly stated in
§25.13. Coordination and nonduplica-
tion. Consistent with this, existing ad-
visory groups may be used if they
meet the requirements of § 25.7 or are
modified to meet those requirements.
15. Support for advisory group par-
ticipation. In the preamble to the pro-
posed regulations, EPA questioned
whether reimbursement of advisory
group out-of-pocket expenses would be
helpful In encouraging public partici-
pation and whether it would pose an
administrative burden to grantees.
Many comments were received on this
issue as well as other matters pertain-
ing to advisory group logistics, such as
budget and staff for advisory groups.
Many commenters Indicated that re-
imbursement 'Of out-of-pocket ex-
penses would encourage participation.
Several public interest groups suggest-
ed that citizens should be paid for the
time they devote to advisory group
participation; others urged a more
-cautious approach emphasizing volun-
teerism. Several commenting agencies
indicated they already operate reim-
bursement programs for normal out-
of-pocket expenses, but would be op-
posed to extending reimbursement to
additional expenses such as payment
for time expended in participation.
Since many agencies are already
conducting reimbursement programs
and since many commenters agree
that reimbursement does encourage
participation, EPA has determined
that grantees shall make reasonable
out-of-pocket costs of participation
available to advisory group members.
EPA will provide Information on reim-
bursement systems to assist any
agency which needs to establish a
system. ,
Some commenters recommended
that reimbursement be available only
to private citizens and other advisory
group members who do not represent
economic Interests. In fairness, we be-
lieve that reimbursement of reason-
able out-of-pocket expenses should be .-
available to all group members: howev-
er, we recognize that many advisory
group members are eligible for reim-
bursement from the interests which
they represent. In the interest of econ-
omy, we encourage those advisory
group members to consider'not re-
questing reimbursement from the
grantee. In accord with OMB Circular
74-4. travel costs of elected officials
are not currently eligible for reim-
bursement.
Many commenters Indicated that ad-
visory groups probably would be
unable to carry out their responsibil-
ities without their own staff and
budget. Most agencies objected that
requiring an independent staff for the
advisory group conflicted with their
status as advisors and could duplicate
the efforts of the agency staff. Many
agencies Indicated that their staff was
available to assist the advisory group
where needed.
EPA recognizes the need for staff to
assist advisory groups. But we agree
that providing staff assistance should
be the responsibility of the grantee.
The final regulations require the
grantee to inform the advisory group
of staff available to assist It. The regu-.
lations also require the grantee to pro-
vide the advisory group with an oper-
ating budget which can be used to
carry out their liaison with the gener-
al public and to assist the group in un-
derstanding the activity carried out
under grant. The budget may be.used
for mailing, expert advice and other
functions as agreed upon between the
advisory groups and the grantee.
16. Public participation program
staff. Many private citizens and public
Interest groups recommended that
EPA require grantees to contract with
local citizen groups to carry out public
participation functions. Comments
from agencies on the wisdom of this
approach were mixed; however, agen-
cies felt strongly that this decision
should be discretionary. We agree,
and. as a result, no such requirement
appears in the final regulations. How-
ever, grantees are free to use this ap-
proach if they believe it will be the
most effective in their situation.
Several commenters Indicated that
EPA should establish the qualifica"
tlons of public participation staff In
regulations. In general, we believe that
the following characteristics wili con-
tribute to successful accomplishment
of public participation responsibilities:
familiarity with the affected area:
knowledge of at least some of the par-
ties likely to be Interested or affected:
experience In the skills needed to
carry out a public participation pro-
gram Including organizing meetings.
providing staff support to advisory
groups, and other skills: and sufficient
knowledge of the technical and proce-
dural aspects of the grant activity to
be able to explain them to the adviso-
ry group and other members of the
public. EPA believes that these needed
characteristics will be apparent to
grantees. They will be stated in EPA
guidance. However, we do not believe
they should be specified in regulation.
Accordingly, the final regulation does
not specify the qualifications of public
participation staff.
One State questioned whether the
public participation staff contact for
statewide activities could be located in
the State agency office. The answer to
this question is yes.
17. Advisory group training. A
number of State and substate agencies
Indicated that EPA should conduct ad-
visory group training in cooperation
with the grantee. We agree, and the
regulations have been modified to in-
dicate that advisory group training
should be carried out cooperatively by
EPA. the State, and any applicable
substate agency.
Several agencies commented that
training should be provided for their
staff as well as for advisory group
members. Again we agree. The regula-
tions indicate that agencies may in-
clude members of their staff in the
training sessions for advisory group.
18. Advisory group subcommittees
and technical advisory groups. Many
commenting agencies questioned
whether the advisory group require-
ments applied to other advisory
bodies, such as groups of technical ex-
perts. Other agencies questioned
whether subcommittees established by
advisory groups need have the same
composition as the primary advisory
group. The regulations do not inhibit
agencies from establishing technical
panels or similar groups; however it is
recommended that these groups be es-
tablished as subcommittees of the pri-
mary advisory group or at least coordi-
nated closely with that group. Any
recommendations of technical groups
should be reviewed by the primary ad-
visory group, and any comments made
by the advisory group should be for-
warded to the grantee or decisionmak-
ing officials along with the technical
group's recommendations.
.Several public interest group com-
menters inflfcated that *any subcom-
mittees should be required to have the
same membership composition as the
primary advisory group. EPA believes
this would be unnecessarily restrictive.
An agricultural subcommittee would
logically be composed largely of indi-
viduals earning a living through farm-
Ing, ranching, or related activities. A
"severely affected parties" subcommit-
tee might be composed almost entirely
of individuals residing within a short
distance of the proposed construction
site. Even In cases where subcommit-
tees have sharply focused areas of in-
FEDERAl REGISTER. VOL 44, NO. 34—FRIDAY, FEBRUARY 16, 1979
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RULES AND REGULATIONS
10291
terest. efforts should be made to in-
clude Individuals .-who can express
other, more general, points of view.
Generally subcommittees should con-
lain some members of the full adviso-
ry group, but not all subcommittee
members need be members of the pri-
mary advisory group. Reimbursement
need not be made available for sub-
committee participation; although this
may be done at the discretion of the
responsible agency.
19. Paperwork—Public participation
work plans for grant activities. The
proposed regulations specified the in-
formation about planned public par-
ticipation activities which should be
included in grant applications. Com-
ment on this section was generally fa-
vorable: although some agencies felt
that the public participation work
plans were not needed. Final Part 25
indicates the information which
should be included in a public partici-
pation work plan. These plans should
be brief. They are needed by EPA as a
basis for award of funds for public par-
ticipation activities.
The submission of this type of infor-
mation with grant applications is not a
new requirement. It is already re-
quired for the Construction Grants
Program (under 40 CFR 35.917-5). for
grant funded activities under the Re-
source Conservation and Recovery Act
.under 40 CFR 249.5) and in the water
Quality Management Program by
guidance. The final regulation merely
standardizes this requirement and em-
phasizes the brief nature of the re-
quired information.
Some agency commenters pointed
out that there was no provision for re-
vising the work plan. They expressed
concern that this would place them In
icchnical violation if they departed
from the schedule in the work plan in
oven minor respects. We agree. Minor
departures from the schedule would
not be a violation of requirements. If
more substantial changes are expect-
ed, the work plan should be revised.
Provision for revision is included in
the final regulations.
20. Paperwork—Responsiveness Sum-
maries /modified/ and Public Partici
pchon Summaries (deleted}. Many
commenLers indicated that the pro-
posed regulations, although an im-
provement over the concept papers.
still failed to distinguish adequately
between the use and content of Re-
sponsiveness Summaries and Public
Participation Summaries. Some com-
menters expressed the opinion that
the two requirements were duplicative.
We agree, and we have eliminated
Public Participation Summaries from
the final regulation. The requirement;
for Responsiveness Summaries are
more clearly stated.
Responsiveness Summaries are in-
tended to appear immediately after
specific decision points to indicate
briefly to the public how decision-
makers have responded to their par-
ticipation. They must be prepared for
rulemaking and where required by
program regulations or by an ap-
proved public participation work plan.
Responsiveness Summaries were
strongly endorsed by many com-
menters as a major step forward in
fostering responsive government.
public understanding of governmental
decisions, and public confidence in
government. In many Instances where
a Responsiveness Summary is required
in program regulations, it replaces the
existing public participation reporting
requirements of Part 105.5 or Part
249.5.
Part 25 requires no new reports. Ex-
isting Part 105 calls for an annual
public participation report by all agen-
cies carrying out responsibilities under
the Clean Water Act. including EPA
Headquarters program offices and di-
visions. EPA regional offices. States
and interstate agencies. All of these
annual reporting requirements are
eliminated by final Part 25.
Parts 105.5 and 249.5 contained re-
quirements for reports associated with
particular activities, such as the sub-
mission of applications for financial
assistance and the submission of plans
prepared with such assistance. All of
these requirements are eliminated
from the new Part 25. In some cases.
the better defined, briefer, and more
useful public participation work plans
or Responsiveness Summaries will be
required in program regulations at
comparable activity points. The net re-
porting requirements are thereby re-
duced while making the remaining re-
ports briefer and more sharply focused
on important decisions.
21. Assuring compliance witfi public
participation requirements. Many
public interest group and private citi-
zen commenters objected to the dele-
tion from the proposed regulations of
the description of optional sanctions
which EPA could apply where the Re-
gional Administrator determined that
grantees had not carried out public
participation requirements as reflected
in their approved public participation
work plans. Other commenters called
for stronger mandatory action in in-
stances of noncompliance. Many com-
menting agencies expressed concern
that minor technical violations beyond
the control of their agencies would be
cause for action by EPA.
EPA deleted the descriptions of the
optional sanctions in favor of refer-
ences to the sections of the regula-
tions which provide EPA authority to
enfcrc: jr^r.t agreements. The Agency
believes that to state the full text of
these sections in the public participa-
tion regulations would be redundant
and unnecessary. However, for the
sake of clarity and In order to be con-
sistent with the practice followed else-
where in final Part 25. the titles of the
cited sections have been Included in
the regulation.
As Indicated above, we have included
provision for modifying the work plan
to reflect major changes. Grantees
may make minor departures from the
work pUn schedule at their discretion
provided they do not infringe upon re-
quired periods of document availabil-
ity or public notice.
We do not agree with those com-
menters who called for more stringent.
mandatory sanctions. Accordingly.
mandatory EPA action upon a finding
of noncompliance remains the same as
in the proposed regulations—more
careful monitoring of future public
participation performance.
PUBLIC EDOCATION AND ASSISTANCE
UNDER RESOURCE CONSERVATION AND
RECOVERY ACT
Section 8003 of the Resource Con-
servation and Recovery Act requires
EPA to develop information on a com-
prehensive list of topics pertaining to
environmental protection through
solid waste management. Interim final
40 CFR Part 249.4(c) indicated that
EPA would assist State and substate
agencies in carrying out their public
information and education responsibil-
ities under the Resource Conservation
and Recovery Act by making these
agencies among the first recipients of
information developed by EPA to meet
the-requirements of section 8003. Al-
though interim final Part 249 will be
deleted from the Code of Federal Reg-
ulations with the promulgation of the
new Part 25. EPA will meet the com-
mitment, stated in Part 249.4(c). to
assist State agencies by providing
them with informational materials.
Section 249.4(c) also indicated that
each EPA Regional Office would des-
ignate a public participation officer to
coordinate public participation activi-
ties relating to solid waste manage-
ment within EPA and to assist State
and substate agencies with their
public participation responsibilities
under the Resource Conservation and
Recovery Act. The requirement to des-
ignate-regional public participation of-
ficers and the commitment to assist
other agencies with their public par-
ticipation programs remains in effect
although Part 249 will be deleted from
the Code of Federal Regulations.
AGENCY EVALUATION AND "SUNSET"
POLICY ron REPORTING REQUIREMENTS
EPA is committed to evaluating this
regulation within three years from the
date of publication. This will be done
by the Office of Water and Waste
Management in conjunction with the
Office of Public Awareness and the
Administrator's Public Participation
FEOERAt REGISTER, VOL 44, NO. 14—FRIDAY, FEBRUARY 16, 1979
35
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RULES AND REGULATIONS
Task Force. The evaluation'will in-
clude such factors as effectiveness of
requirements, enforceabillty, resource
expenditure, alternative public partici-
pation methods, public reaction, and
reporting requirements. The evalua-
tion will also address the Issue of
whether the Increased flexibility in-
troduced into the regulations has had
a positive or a negative effect on
public participation performance.
Under EPA's new "sunset" policy for
importing iequlrements in regulations.
the reporting requirements in this reg-
ulation will automatically expire on
(five years from the date of promulga-
tion) unless EPA takes action to
extend them. A new provision (§25.14)
has been added to the regulation
which automatically terminates the
reporting requirements at that time.
REVISION or PROGRAM REGULATIONS
FOR CONSISTENCY WITH PART 25
The following paragraphs Identify
specific program regulations which
have been or will be revised to bring
Chem into conformance with Part 25.
CLEAX WATER ACT
1. Amendments to Municipal
Wastewater Treatment Works Con-
struction Grants Program regulations
(40 CFR Part 35. Subpart E) which Im-
plement the requirements of Part 25
are promulgated In this issue of the
FEDERAL REGISTER.
2. Revised regulations (40 CFR Part
35, Subpart G) Implementing water
quality planning and management
under sections 106 and 208, and re-
flecting the provisions of proposed
Part 25 were published In the FEDERAL
REGISTER for comment on September
12. 1978. The final regulations. Includ-
,lng changes made in response to public
comment and revisions to Part 25, will
be promulgated early In 1979.
3. Revised regulations implementing
the National Pollutant Discharge
Elimination System Permit Program
requirements of section 402, and re-
flecting the provisions of proposed
Part 25, were published for comment
on August 21, 1978. The final regula-
tions. Including changes made in re-
sponse to public comment and the re-
visions to proposed Part 25. will be
promulgated early In 1979.
4. Regulations Implementing the
Clean Lakes Program under section
314 and reflecting the provisions of
Part 25 will be proposed In February
1979. EPA will accept public comment
on the proposed regulations for 60
days following the proposal date.
Those wishing to receive additional in-
formation or a copy of the proposed
regulations should write to Kenneth
Mackenthun. Director. Criteria and
Standards Division (WH 585), United
States Environmental Protection
Agency. 401 M-Street. SW., Washing-
ton. D.C. 20460.
RESOURCE CONSERVATION AND RECOVERY
ACT
1. State Solid Waste Management
Plan Guidelines (40 CFR Part 256)
under section 4002(b) were proposed
for comments on August 28, 1978. The
proposed regulations included provi-
sions implementing the requirements
of proposed Part 25. EPA will revise
the proposed regulations to respond to
public comments and changes in Part
25 and promulgate final regulations In
June 1979.
2. Regulations for State Programs
for Hazardous Waste under section
3006 were proposed for comment on
February 1. 1978. EPA will revise these
regulations In response to public com-
ment and the requirements of Part 25,
repropose them in early 1979. and pro-
vide 60 days for public comment.
Those who wish to receive additional
information or a copy of the proposed
regulations should contact Geraldine
Wyeri Office of Solid Waste (WH 562).
United States Environmental Protec-
tion Agency. 401 M Street. SW.. Wash-
ington. D.C. 20460.
3. Regulations for Permit Programs
for Hazardous Waste under section
3005 will be proposed in February
1979. EPA will accept public comment
on the regulation for 60 days following
the date of proposal. The proposed.
regulations will reflect the provisions
of Part 25. Those who wish to receive
additional information or a copy of
the regulations should contact Geral-
dine Wyer. Office of Solid Waste (WH
562). United States Environmental
Protection Agency, 401 M Street, SW.,
Washington. D.C. 20460.
SAFE DRINKING WATER ACT
1. Regulations for grants to States
for Implementing Underground Water
Source Protection Programs (40 CFR
Part 35.650 through 35.680) were pro-
posed for comment on August 31, 1976.
Final regulations, reflecting public
comment and the provisions of Part
25, will be promulgated In 1979,
NOTT.—The Environmental Protection
Agency has determined that this document
does not contain a major proposal requiring
preparation of an Economic Impact tAnaly-
sis Statement under Executive *torders
11821. 11949. and 12044 and OMB circular
A-107.
Dated: February 8, 1979.
DOUGLAS M. COSTLE.
Administrator.
(Sec. 101(e) of the Clean Water Act, u
amended. 33 U-S.C. t2St(e>; section 7004(b)
o( the Resource Conservation and Recovery
Act. 42 D.S.C. 6974(b>: sec. 145(XaXl> of the
Safe Drinking Water Act. as amended, 42
U.S.C. 300J9.)
• 1. 40 CFR Is amended by adding a
new Part 25 reading as follows:
PART 25—PUBLIC PARTICIPATION IN
PROGRAMS UNDER THE RESOURCE
CONSERVATION AND RECOVERY
ACT, THE SAFE DRINKING WATER
ACT, AND THE CLEAN WATER ACT
Sec.
25.1 Introduction.
25.2 Scope.
25.3 Policy and objectives.
25.4 Information, notification and consul-
tation responsibilities.
25.5 Public hearings.
25.6 Public meetings.
25.7 Advisory groups.
25.8 Responsiveness summaries.
25.9 Permit enforcement.
25.10. RulemaJttng.
25.11 Work elements In financial assistance
agreements.
25.12 Assuring compliance with public par-
tiupation requirements
25.13 Coordination and non-duplication.
25.14 Termination o( reporting require-
ments.
AUTHORITY. Sec. lOHe) of the Clean
Water Act. as amended. 33 U S.C. 1251(e).
sec. 700«b> of the Resource Conservation
and Recovery Act. 42 U.S.C. 6974l particular public participation
mechanisms" (for example, advisory
groups and responsiveness summaries)
are set forth in §§ 25.5. 25.6. 25.7. and
25.8. This part does not mandate the
use of these public participation mech-
anisms. It does, however, set require-
ments which those responsible for im-
plementing the mechanisms must
follow if the mechanisms are required
elsewhere in this chapter.
(c) Requirements which apply to
Federal financial assistance programs
(grants and cooperative agreements)
under the three acts are set forth in
§§25.10 and 25.12(a).
FEDERAL REGISTER, VOL 44, NO. 34—FRIDAY, FEBRUARY 16, 1979
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(d) Requirements for public involve-
ment which apply to specific activities
are set forth in § 25.9 (Permit enforce-
ment), §25.10 (Rulemaklng). and
§25.12 (Assuring compliance with re-
quirements).
§ 25.2 Scope.
(a) The activities under the three
Acts which are covered by this part
are:
(1) EPA rulemaking. except non-
;jolicy rulemaking (for example publi-
cation of funding allotments under
statutory formulas); and State rule-
making under the Clean .Water Act
and Resource Conservation and Re-
covery Act;
(2) EPA issuance and modification of
permits, and enforcement of permits
nj delineated by § 25.9:
(3) Development by EPA of major
informational materials, such as citi-
/.pn guides or handbooks, which are
•.-•spectpd to be used over several years
and which are intended to be widely
distributed to the public;
(4) Development by EPA of strategy
and policy guidance memoranda when
a Deputy Assistant Administrator de-
U'rmines it to be appropriate;
(5) Development and implementa-
tion of plans, programs, standards.
construction, and other activities sup-
ported with EPA financial assistance
(grants and cooperative agreements)
to State, interstate, regional and local
agencies (herein after referred to as
State, interstate, and substate agen-
cies"):
(6) The process by which EPA makes
a determination regarding approval of
State administration of the Construc-
tion Grants program in lieu of Federal
administration; and the administra-
tion of the Construction Grants Pro-
gram by the State after EPA approval:
(7) The process by which EPA makes
a determination regarding approval of
State administration of the following
programs in lieu of Federal adminis-
tration: The State Hazardous Waste
Program; the NPDES Permit Pro-
gram; the Dredge and Pill Permit Pro-
cram; and the Underground Injection
Control Program;
(8) Other activities which the Assist-
ant Administrator for Water and
Waste Management, the Assistant Ad-
ministrator for Enforcement, or any
EPA Regional Administrator deems
appropriate in vieu of the Agency's re-
sponsibility to involve the public In
significant decisions.
(b) Activities which are not covered
by this part, except as otherwise pro-
vided under (a)(8) or (c) of this sec-
tion, are activities under Parts 33
(Subagreements). 39 (Loan Guaran-
tees for Construction of Treatment
Works). 40 (Research and Develop-
ment Grants). 45 (Training Grants
and Manpower Forecasting) and 46
(Fellowships) of this chapter.
(c) Some programs covered by these
regulations contain further provisions
concerning public participation. These
are found elsewhere in this chapter in
provisions which apply to the program
of interest. Regulations which govern
the use and release of public informa-
tion are set forth in part 2 of this
chapter.
(d) Specific provisions of court
orders which conflict with require-
ments of this part, such as court-estab-
lished timetables, shall take prece-
dence over the provisions in this Part.
(e) Where the State undertakes
functions in the construction grants
program, the Sute shall be responsi-
ble for meeting these requirements for
public participation, and any applica-
ble public participation requirements
found elsewhere in this chapter, to the
same extent as EPA.
(f) Where the State undertakes
functions in those programs specifical-
ly cited in §25.2(a)(7). the State shall
be responsible for meeting the require-
ments for public participation includ-
ed in the- applicable regulations gov-
erning those State programs. The re-
quirements for public participation in
State Hazardous Waste Programs,
Dredge and Fill Permit programs. Un-
derground Injection Control programs
and NPDES permit programs are
found In Part 123 of this chapter.
These regulations embody the sub-
stantive requirements of this part.
(g) These regulations apply to the
activities of all agencies receiving EPA
financial assistance which is awarded
after (the effective date of final regu-
lations], and to all other covered activ-
ities of EPA. State, interstate, and sub-
state agencies which occur after that
date. These regulations will apply to
ongoing grants or other covered activi-
ties upon any significant change in the
activity (for example, upon a signifi-
cant proposed increase in project
scope of a construction grant). Parts
105 (Public Participation In Water Pol-
lution Control) and 249 (Public Par-
ticipation in Solid Waste Manage-
ment) will no longer appear in the
Code of Federal Regulations; however.
they will remain applicable, in uncodi-
fied form, to grants awarded'prior to
the effective date of this part and to
all other ongoing activities.
J 25.3 Policy and objectives. "*
(a) EPA, Sute, interstate, and sub-
state agencies carrying out activities
described in §2S.2(a) shall provide for.
encourage, and assist the participation
of the public. The term, "the public"
In the broadest sense means the
people as a whole, the general popu-
lace. There are a number of identifi-
able "segments of the public" which
may have a particular Interest In a
given program or decision. Interested
and affected segments of the public
may be affected directly by a decision.
either beneficially or adversely; they
may be affected Indirectly; or they
may have some other concern about
the decision. In addition to private
citizens, the public may include.
among others, representatives of con-
sumer, environmental, and minority
associations; trade, industrial, agricul-
tural, and labor organizations: public
health, scientific, and professional so-
cieties; civic associations; public offi-
cials: and governmental and educa-
tional associations. .
(b) Public participation is that part
of the decision-making process
through which responsible officials
become aware of public attitudes by
providing ample opportunity for inter-
ested and affected parties to communi-
cate their views. Public participation
includes providing access to the deci-
sion-making process, seeking input
from and conducting dialogue with the
public, assimilating public viewpoints
and preferences, and demonstrating
that those viewpoints and preferences
have been considered by the decision-
making official. Disagreement on sig-
nificant Issues Is to be expected among
government agencies and the diverse
groups interested in and affected by
public policy decisions. Publ\c agencies
should encourage full presentation of
Issues at an early stage so that they
can be resolved and timely decisions
can be made. In the course of this
process, responsible officials should
make special efforts to encourage and
assist participation by citizens repre-
senting themselves and by others
whose resources and access to deci-
sion-making may be relatively limited.
(c) The following are the objectives
of EPA, State, interstate, and substate
agencies In carrying out activities cov-
ered by this part:
(1) To assure that the public has the
opportunity to understand official pro-
grams and proposed actions, and that
the government fully considers the
public's concerns;
(2) To assure that the government
does not make any significant decision
on any activity covered by this part
without consulting interested and af-
fected segments of the public:
(3) To assure that government
action is as responsive as possible to
public concerns:
(4) To encourage public Involvement
in implementing environmental laws:
(5) To keep the public informed
about significant issues and proposed
project or program changes as they
arise:
(6) To foster a spirit of openness and
mutual trust among EPA, States, sub-
slate agencies and the public: and
(7) To use all feasible means to
create opportunities for public partici-
FEOERAl REGISTER. VOL 44, NO. 34—FRIDAY. FEBRUARY 16. 1979
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RULES AND REGULATIONS
pation. and to stimulate and support •
participation.
§ 25.4 Information, notification, and con-
sultation responsibilities.
(a) General EPA. State, interstate.
and substate agencies shall conduct a
continuing program for public infor-
mation and participation In the devel-
opment and implementation of activi-
ties covered by this part. This program
shall meet the following requirements:
(b) Information and assistance re-
quirements. (1) Providing Information
to the public is a necessary prerequi-
site to meaningful, active public In-
volvement. Agencies shall design infor-
mational activities to encourage and
facilitate the public's participation in
all significant decisions covered by
§ 25.2(a>;- particularly where alterna- •
live courses of action are proposed.
(2) Each agency shall provide the
public with continuing policy, pro-
gram, and technical information and
assistance beginning at the earliest
practicable time. Informational mate-
rials shall highlight significant issues
that will be the subject of decision-
making. Whenever possible, consistent
with applicable statutory require-
ments, the social, economic, and envi-
ronmental consequences of proposed
decisions shall be clearly stated in
such material. Each agency shall iden-
tify segments of the public likely to be
affected by agency decisions and
should consider targeting information-
al materials toward them (In addition
to the materials directed toward the
general public).- Lengthy documents
and complex technical materials that
relate to significant decisions should
be summarized for public and media
uses. Fact sheets, news releases, news-
letters, and other similar publications
may be used to provide notice that ma-
terials are available and to facilitate
public understanding ol more complex
documents, but shall not be a substi-
tute for public access to the full docu-
ments.
(3) Each agency shall provide one or
more central collections of reports,
studies, plans, and other documents
relating to controversial issues or sig-
nificant decisions in a convenient loca-
tion or locations, for example, in
public libraries. Examples of such doc-
uments are catalogs of documents
available from the agency, grant appli-
cations, fact sheets on permits and
permit applications, permits, effluent
discharge information, and compliance
schedule reports. Copying facilities at
reasonable cost should be available at
the depositories.
(4) Whenever possible, agencies shall
provide copies of documents of inter-
est to the public free of charge.
Charges for copies should not exceed
prevailing commercial copying costs.
EPA requirements governing charges
for information and .documents pro-
vided to the public In response to re-
quests made under the Freedom of In-
formation Act are set forth in Part 2
of this chapter. Consistent with the
objectives of § 25 3(b). agencies may re-
serve their supply of free copies for
private citizens and others whose re-
sources are limited.
(5) Each agency shall develop and
maintain a list of persons and organi-
zations who have expressed an interest
In or may. by the nature of their pur-
poses, activities or members, be affect-
ed by or have an Interest In any cov-
ered activity. Generally, this list will
be most useful where subdivided by
area of Interest or geographic area.
Whenever possible, the list should In-
clude representatives of the several
categories of interests listed-.under
§2S.3(a). Those on the list, or relevant
portions if the list Is subdivided, shall
receive timely and periodic notifica-
tion of the availability of materials
under §25.4(b)C2).
(c) Public notification. Each agency
shall notify Interested and affected
parties, including appropriate portions
of the list 'required by paragraph
(b)(S) of this section, and the media In
advance of times at which major deci-
sions not covered by notice require-
ments for public meetings or public
hearings are being considered. Gener-
ally, notices should Include the timeta-
ble in which a decision will be reached.
the issues under consideration, any al-
ternative courses of action or tentative
determinations which the agency has
made, a brief listing of. the applicable
laws or regulations, the location where
relevant documents may be reviewed
or obtained, identification of any asso-
ciated public participation opportuni-
ties such as workshops or meetings,
the name of an individual to contact
for additional information, and any
other appropriate information. All ad-
vance notifications under this para-
graph must be provided far enough in
advance of agency action to permit
time for public response; generally
this should not be less than 30 days.
(d) Public consultation. For the pur-
poses of this part, "public consulta-
tion" means an exchange of veiws be-
tween governmental agencies and in-
terested or affected persons and orga-
nizations in order to meet the objec-
tives set forth in § 25.3. Requirements
for three common forms of putfflc con-
sultation (public hearings, public
meetings, and advisory groups) are set
forth In §§ 25.5. 25.6. and 25.7. Other
less formal consultation mechanisms
may include but are not limited to
review groups, ad hoc committees, task
forces, workshops, seminars and infor-
mal personal communications with In-
dividuals and groups. Public consulta-
tion must be preceded by timely distri-
bution of Information and must occur
-sufficiently in advance of decision-
making to allow the agency to assimi-
late public views into agency action.
EPA. State, interstate, and substate
agencies shall provide for early and
continuing public consultation in any
slginificant action covered by this
part. Merely conferring with the
public after an agency decision does
not meet this requirement. In addition
to holding hearings and meetings as
specifically required in this chapter, a
hearing or meeting shall be held if
EPA. tiie State, inteislate, or substate
agency determines that there Is sig-
nificant public Interest or that a hear-
ing or meeting would be useful.
(e) Public information concerning
legal proceedings. EPA, State, inter-
state, and substate agencies shall pro-
vide full and open information on
legal proceedings to the extent not in-
consistent with court requirements.
and where such disclosure would not
prejudice the conduct of the litigation.
EPA actions with regard to affording
opportunities for public comment
before the Department of Justice con-
senLs to a proposed judgment in an
action to enjoin discharges of pollut-
ants into the environment shall be
consistent with the Statement of
Policy issued by the Department of
Justice (see Title 28, Code of Federal
Regulations. Chapter 1. § 50.7).
§ 25.5 Public hearing*.
(a) Applicability. Any non-adjudica-
tory public hearing, whether manda-
tory or discretionary, under the three
Acts shall meet the following mini-
mum requirements. These require-
ments are subordinate to any more
stringent requirements found else-
where in this chapter or otherwise im-
posed by EPA, State, interstate, or
substate agencies. Procedures devel-
oped for adjudlcatory hearings re-
quired by this chapter shall be consist-
ent with the public participation ob-
jectives of this part, to the extent
practicable.
(b) Notice. A notice of each hearing
shall be well publicized, and shall also
be mailed to the appropriate portions
of the list of Interested and affected
parties required by §25.4(b)<5>. Except
as otherwise specifically provided else-
wliere in tnis chapter,' these actions
must occur at least 45 days prior to
the date of the hearing. However.
where EPA determines that there are
no substantial documents which must
be reviewed for effective hearing par-
ticipation and that there are no com-
plex or controversial matters to be ad-
dressed by the hearing, the notice re-
quirement may be reduced to no less
than 30 days. EPA may further reduce
or waive the hearing notice require-
ment in emergency situations whetje
EPA determines that there Is an immi-
nent danger to public health. To the
FEDERAL REGISTER, VOL 44, NO. 34— FRIDAY, FEBRUARY 16, 1979
38
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RULES AND REGULATIONS
10295
extent not duplicative, the agency
holding the hearing shall also provide
informal notice lo all interested per-
sons or organizations that request It.
The notice shall identify the matters
to be discussed at the hearing and
shall include or be accompanied by a
discussion of the agency's tentative de-
termination on major issues (if any).
information on the availability of a
bibliography of relevant materials (if
deemed appropriate), and procedures
for obtaining further information. Re-
ports, documents and data relevant to
the discussion at the public hearing
shall be available to the public at least
30 days before the hearing. Earlier
availability of materials relevant to
the hearing will further assist public
participation and is encouraged where
possible.
Locations ar.d time. Hearings
must be held at times and places
which, to the maximum extent feasi-
ble, facilitate attendance by the
public. Accessibility of public transpor-
tation, and use of evening and week-
end hearings, should be considered. In
the case of actions with Statewide in-
terest, holding more than one hearing
should be considered.
(d) Scheduling presentations. The
agency holding the hearing shall
schedule witnesses in advance, when
necessary, to ensure maximum partici-
pation and allotment of adequate time
for all speakers. However, the agency
shall reserve some time for unsched-
uled testimony and may consider re-
serving blocks of time for major cate-
gories of witnesses.
(e) Conduct of hearing. The agency
holding the hearing shall Inform the
audience of the issues involved in the
decision to be made, the consider-
ations the agency will take into ac-
count, the agency's tentative determi-
nations (if any), and the information
which is particularly solicited from
the public. The agency should consid-
er allowing a question and answer
period. Procedures shall not unduly in-
hibit free expression of views (for ex-
ample, by onerous written statement
requirements or qualification of wit-
nesses beyond minimum identifica-
tion).
(f) Record. The agency holding the
hearing shall prepare a transcript, re-
cording or other complete record of
public hearing proceedings and make
it available at no more than cost to
anyone who requests it. A copy of the
record shall be available for public
review.
§ 25.6 Public meetings.
Public meetings are any assemblies
or gathering, (such as conferences, in-
formational sessions, seminars, work-
shops, or other activities) which the
responsible agency Intends to be open
to anyone wishing to attend. Public
meetings are less formal than public
hearings. They do not require formal
presentations, scheduling of presenta-
tions and a record of proceedings. The
requirements of 5 25.5 (b) and (c) are
applicable to public meetings, except
that the agency holding the meeting
may reduce the notice to not less than
30 days if there is good reason that
longer notice cannot be provided.
§ 2S.7 Advisory group*.
(a) Applicability. The requirements
of this section on advisory groups
shall be met whenever provisions of
this chapter require use of an advisory
group by State, interstate, or substate
agencies involved in activities support-
ed by EPA financial assistance under
any of the three Acts.
(b) Role. Primary responsibility for
decision-making in environmental pro-
grams is vested by law in the elected
and appointed officials who serve on
public bodies and agencies at various
levels of government. However, all seg-
ments of the public must have the op-
portunity to participate in environ-
mental quality planning. Accordingly,
where EPA identifies a need for con-
tinued attention of an informed core
group of citizens in relation to activi-
ties conducted with EPA financial'as-
sistance, program regulations else-
where in this chapter will require an
advisory group to be appointed by the
financially assisted agency. Such advi-
sory groups will not be the sole mecha-
nism for public participation, but will
complement other mechanisms. They
are intended to assist elected or ap-
pointed officials with linal decision-
making responsibility by making rec-
ommendations to such officials on im-
portant issues. In addition, advisory
groups should foster a constructive In-
terchange among the various interests
present on the group and enhance the
prospect of community acceptance of
agency action.
(c) Membership. (1) The agency re-
ceiving financial assistance shall
assure that the advisory group reflects
a balance of interests in the affected
area. In order to meet this require-
ment, the assisted agency shall take
positive action, in accordance with
paragraph (c)(3). to establish an advi-
sory group which consists of substan-
tially equivalent proportions of the
following four groups:
(1) Private citizens. No person may
be included in this portion of the advi-
sory group who is likely to incur a fi-
nancial gain or loss greater than that
of an average homeowner, taxpayer or
consumer as a result of any action
likely to be taken by the assisted
agency.
(11) R^^.-eseniu.tii,^ ^.j public interest
groups. A "public Interest group" Is an
organization which reflects a general
civic, social, recreational, environmen-
tal or public health perspective In the
area and which does not directly re-
flect the economic interests of its
membership.
(iii) Public officials.
(lv) Citizens or representatives of or-
ganizations with substantial economic
Interests in the plan or project.
(2) Generally, where the activity hu
a particular geographic focus, the ad-
visory group shall be made up of per-
sons who are residents of that geo-
graphic area.
(3) In order to meet the advisory
group membership requirements of
paragraph (c)(l),"the assisted agency
shall: "' ••'"•-"
(i) Identify public interest groups.
economic interests, and public officials
who are interested in or affected by
the assisted activity.
(ii) Make active efforts to inform
citizens in the affected area, and the
persons or groups identified under
paragraph (c)(3)(i). of this opportuni-
ty for participation on the advisory
group. This may include such actions
as placing notices or announcements
in the newspapers or other media.
mailing written notices to interested
parties, contacting organizations or in-
dividuals directly, requesting organiza-
tions to notify their members through
meetings, newsletters, or other means.
(iii) Where the membership compo-
sition set forth in paragraph (c)(l) is
not met alter the above actions, the
assisted agency shall identify the cau-
sative problems and make additional
eflorts to overcome such problems.
For example, the agency should make
personal contact with prospective par
tlcipants to invite their participation.
(iv) Where problems in meeting the
membership composition arise, the
agency should request advice and as-
sistance from EPA.
(d) The assisted agency shall record
the names and mailing addresses of
each member of the advisory group.
with the attributes of each in relation
to the membership requirements sc-t
forth In paragraph (Oil), provide a
copy to EPA. and make the list avails
ble to the public. In the event that the
membership requirements set forth in
paragraph (cXl) are not met. the as
. sisted agency shall append to the list c.
•deScriptian of its efforts to comply
with those requirements and an expla-
nation of the problems which prevent-
ed compliance. EPA shall review the
agency's efforts to comply and ap-
prove the advisory group composition
or, If the agency's efforts were inad-
equate, require additional- actions to
achieve the required membership com-
position.
(e) Responsibilities of the assisted
agency. (1) Trie assisted agency shall
designate a staff contact who will be
responsible for day-to-day coordina-
tion among the advisory group, the
FEDERAL REGISTER, VOL 44, NO. J4—fRIOAY. FEBRUARY 16, 1979
39
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10296
RULES AND REGULATIONS
agency, and any agency contractors or
consultants. - The financial assistance
agreement shall include a budget item
for this staff contact. Where substan-
tial portions of the assisted agency's
responsibilities will be met under con-
tract, the agency shall require a simi-
lar designation, and budget specifica-
tion, of Its contractor. In the latter
event, the assisted agency does not
have to designate a separate staff con-
tact on its own staff, if the Regional .
Administrator deterrr.lnes that the
contractor's designation will result in
adequate coordination. The staff con-
tact shall be located in the project
area.
(2) The assisted agency has such re-
sponsibilities as providing the advisory
group with ; information. Identifying
issues for the advisory group's consid-
eration, consulting with the advisory
group throughout the project, request-
ing the advisory group's recommenda-
tions prior to major decisions, trans-
mitting advisory group recommenda-
tions to decision-making officials, and
making written responses to any
formal recommendation by the adviso-
ry group. The agency shall make any
such written responses available to the
public. To the maximum extent feasi-
ble, the assisted agency shall Involve
the advisory group in the development
of the public participation program.
(3) The assisted agency shall identi-
fy professional and clerical staff time
which the advisory group may depend
upon for assistance, and provide the
advisory -group .with, an .operating -
budget which may be used for techni-
cal assistance and other purposes
agreed upon between the advisory
group and the agency.
(4) The assisted agency shall estab-
lish a system to make costs of reason-
able out-of-pocket expenses of adviso-
ry group participation available to
group members. Tune away from work
need not be reimbursed; however, as-
sisted agencies are , encouraged to
schedule meetings at times and places
which will not require members to
leave their jobs to attend.
(f) Advisory group responsibilities
and duties. The advisory group may
select its own chairperson, adopt 1L3
own rules of order, and schedule and
conduct Its own meetings. Advisory
group meetings shall be announced
well in advance and shall be open to
the public. At all meetings, the adviso-
ry group shall provide opportunity for
public comment. Any minutes of advi-
sory group meetings and recommenda-
tions to the assisted agency shall be
available to the public. The advisory
group should monitor the progress of
the project and become familiar with
Issues relevant to project development.
In the event the assisted agency and
the advisory group agree that the ad-
visory group will assume public par-
ticipation responsibilities, the'group
should undertake those responsibil-
ities promptly. The advisory group
should make written recommendations
directly to the assisted agency and to
responsible decision-making officials
on major decisions (including approval
of the public participation program)
and respond to any requests from the
agency or decision-making officials for
recommendations. The advisory group
should remain aware of community at-
titudes and responses to Issues as they
arise. As part of this effort, the adviso-
ry group may, within the limitations
of available resources, conduct public
participation activities in conjunction
with the assisted agency; solicit out-
side advice: and establish, In conjunc-
tion with the assisted agency, subcom-
mittees, ad hoc groups, or task forces
to investigate and develop, recommen-
dations on particular issues as they
arise. The advisory group should un-
dertake its responsibilities fully and
promptly in accordance with the poli-
cies and requirements of this part.
Nothing shall preclude the right of
the advisory .group from requesting
EPA to perform an evaluation of the
assisted agency's compliance with the
requirements of this part.
(g) Training and assistance. EPA
will promptly provide appropriate
written guidance and project Informa-
tion to the newly formed advisory
group and may provide advice and as-
sistance to the group throughout the
life of the project. EPA will develop
and, in conjunction with the State or
assisted agency, carry out a program
to provide a training session for the
advisory group, and appropriate assist-
ed agency representatives, promptly
after the advisory group Is formed.
The assisted agency shall provide addi-
tional needed information or assist-
ance to the advisory group.
5 25.8 Responsiveness summaries.
Each agency which conducts any ac-
tivities required under this part shall
prepare a Responsiveness Summary at
specific decision points as specified in
program regulations or In the ap-
proved public participation work plan.
Responsiveness Summaries are also re-
quired for rulemaklng activities under
{25.10. Each Responsiveness Sum-
mary shall identify the public partici-
pation activity conducted: describee the
matters on which the public was con-
sulted: summarize the public's views.
significant comments, criticisms and
suggestions; and set forth the agency's
specific responses In terms of modifi-
cations of the proposed action or an
explanation for rejection of proposals
made by the . public. Responsiveness
Summaries prepared by agencies re-
ceiving EPA financial assistance shall
also Include evaluations by the agency
of the effectiveness of the public par-
ticipation program. Assisted agencies
shall request such evaluations from
any advisory group and provide an op-
portunity for other participating mem-
bers of the public to contribute to the
evaluation. (In the case .of .programs
with multiple responsiveness'summary
requirements, these analyses need
only be prepared and submitted with
the final summary required.) Respon-
siveness summaries shall be forwarded
to the appropriate decision-making of-
ficial and shall be made available to
the public. Responsiveness Summaries
shall be used as part of evaluations re-
quired under this part or elsewhere in
this chapter.
5 25.9 Permit enforcement.
Each agency^ administering a permit
program shall develop internal proce-
dures for receiving evidence submitted
by citizens about permit violations and
ensuring that it is properly considered.
Public effort in reporting violations
shall be encouraged, and the agency
shall make available information on
reporting procedures. The agency
shall investigate alleged violations
promptly.
§25.10 Rulemaking.
(a) EPA shall invite and consider
written comments on proposed and in-
terim regulations from any interested
or affected persons and organizations.
All such comments shall be part of the
public record, and a copy of each conv
ment shall be available for public In-
spection. EPA will maintain a docket
of comments received and any Agency
responses. Notices of proposed and in-
terim rulemaklng. as well as final rules
and regulations, shall be distributed In
accordance with § 2S.4(c) to interested
or affected persons promptly after
publication. Each notice shall include
information as to the availability of
the full texts of rules and regulations
(where these are not set forth in the
notice itself) and places where copying
facilities are available at reasonable
cost to the public. Under Executive
Order 12044 (March 23. 1978). further
EPA guidance will be Issued concern-
ing public participation in EPA rule-
making. A Responsiveness Summary
shall"be puBHshed as part of the pre-
amble to interim and final regulations.
In addition to providing opportunity
for written comments on proposed and
interim regulations. EPA may choose
to hold a public hearing.
(b) State rulemaking specified in
} 25.2(a)(l) shall be in accord with the
requirements of subparagraph (a) of
this paragraph or with the State's ad-
ministrative procedures act. if one
exists. However, In the event of con-
flict between a provision of paragraph
(a) and a provision of a State's admin-
istrative procedures act. the State's
law shall apply
FEDERAL REGISTER, VOL 44, NO. 34—HUDAY, FEBRUARY 16, 1979
40
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RULES AND REGULATIONS
10297
§25.11 Work element* in financial assist-
ance agreement*.
(a) This section is applicable to ac-
tivities under §25.2(a)(5) except as
otherwise provided in Parts 30 or 35.
cb> Each applicant for EPA financial
assistance shall set forth in the appli-
cation a public participation work plan
or work element which reflects how-
public participation will be provided
for. encouraged, and assisted in ac-
cordance with this part. This work
pl.in or element shaJl cover the project
period. At a minimum, the work plan
or element shall include:
(1) Staff' contacts and budget re-
sources to be devoted to public partici-
pation by category;
(2) A proposed schedule for public
participation activities to impact
major decisions, including consultation
points where responsiveness summar-
ies will be prepared:
(3) An identification of consultation
and information mechanisms to be
used:
(4) The segments of the public tar-
geted for involvement.
(c) All reasonable costs of public par-
ticipation incurred by assisted agen-
cies which are identified in an ap-
proved public participation work plan
or element, or which are otherwise ap-
proved by EPA. shall be eligible for fi-
nancial assistance.
(d) The work plan or element may
be revised as necessary throughout the
project period with approval of the
Regional Administrator.
§25.12 Auguring compliance with public
participation requirements.
(a) financial assistance programs.
(1) Applications. EPA shall review the
public participation work plan (or, if
no work plan is required by this chap-
ter for the particular financial assist-
ance agreement, the public participa-
tion element) Included in the applica-
tion to determine consistency with all
policies and requirements of this part.
No financial assistance shall be award-
ed unless EPA is satisfied that the
public participation policies and re-
quirements of this part and. any appli-
cable public participation require-
ments found elsewhere In this chapter,
will be met.
(2) Compliance. (I) Evaluation. EPA
shall evaluate compliance with public
participation requirements using the
work plan, responsiveness summary,
and other available information. EPA
will judge the adequacy of the public
participation effort in relation to the
objectives and requirements of § 25.3
and § 25.4 and other applicable re-
quirements. In conducting this evalua-
tion. EPA may request additional in-
formation from the assisted agency,
including records of hearings and
meetings, and may invite public com-
ment on the agency's performance.
The evaluation will be undertaken as
part of any mid-project review re-
quired in various programs under this
chapter; where no such review is re-
quired the review shall be conducted
at an approximate mid-point in con-
tinuing EPA oversight activity. EPA
may, however, undertake such evalua-
tion at any point in the project period,
and will do so whenever it believes
that an assisted agency may have
failed to meet public participation re-
quirements.
(ii) Remedial actions. Whenever
EPA determines that an assisted
agency has not fully met public par-
ticipation requirements. EPA shall
take actions which it deems appropri-
ate to mitigate the adverse effects of
the failure and assure that the failure
is not repeated. For ongoing projects,
that action shall include, at a mini-
mum. Imposing more stringent re-
quirements on the assisted agency for
the next budget period or other period
of the project (including such actions
as more specific output requirements
and milestone schedules for output
achievement; interim EPA review of
public participation activities and ma-
terials prepared by the agency, and
phased release of funds based on com-
pliance with milestone schedules.)
EPA may terminate or suspend part or
all financial assistance for non-compli-
ance with public participation require-
ments, and may take any further ac-
tions that it determines to be appro-
priate in accordance with Parts 30 and
35 of this chapter (see. in particular,
?§ 30.340, Noncompliance and 30.615-3,
Withholding of Payments, and Sub-
part H of Part 30, Modification, Sus-
pension, and Termination).
(b) State programs approved in lieu
of Federal programs. State compliance
with applicable public participation re-
quirements in programs specified in
sections 25.2 and (7) and admin-
istered by approved States sfiWl be
monitored by EPA during the annual
review of the State's program, and
during any financial or program audit
or review of these programs. EPA may
withdraw an approved program from a
Stale for failure to comply with appli-
cable public participation require-
ments.
(c) Other covered programs. Assuring
compliance with these public partici-
pation requirements for programs not
covered by paragraphs (a) and (b) of
this section is the responsibility of the
Administrator of EPA. Citizens with
information concerning alleged fail-
ures to comply with the public partici-
pation requirements should notify the
Administrator. The Administrator will
assure that instances of alleged non-
compliance are promptly investigated
and that corrective action is taken
where necessary.
§25.1.1 Coordination and non-duplication.
The public participation activities
and materials that are required under
this part should be coordinated or
combined with those of closely related
programs or activities wherever this
will enhance the economy, the effec-
tiveness, or the timeliness of the
effort: enhance the clarity of the
issue: and not be detrimental to par-
ticipation by the widest possible
public. Hearings and meetings on the
same matter may be held jointly by
more than one agency where this docs
not conflict with the policy of this
paragraph. Special efforts shall be
made to coordinate public participa-
tion .procedures under this part and
applicable regulations elsewhere in
this chapter with environmental as-
sessment and analysis procedures
under 40 CFR Part 6. EPA encourages
interstate agencies in particular to de-
velop combined proceedings for the
Slates concerned.
§25.14 Termination of reporting require-
mentft.
All reporting requirements specifi-
cally established by this part will ter-
minate on (5 years from date of publi-
calion) unless EPA acts to extend the
requirements beyond that date.
PART 105[REVOKED]
'"' PA'R'T 249 [REVOKED)
2. 40 CFR is amended by deleting
Parts 105 and 249.
tFR Doc. 19-5017 Piled i-15-19; 8:45 am)
FEDERAL REGISTER, VOL 44, NO. 34—FRIDAY, FEBRUARY 16, 1979
-------
40 CFR PART 29 -
INTERGOVERNMENTAL REVIEW OF ENVIRONMENTAL PROTECTION
AGENCY PROGRAMS AND ACTIVITIES
- V -
-------
Friday
June 24, 1983
Part XVII
Environmental
Protection Agency
Intergovernmental Review of the
Environmental Protection Agency
Programs and Activities; Final Rule and
Programs and Activities Eligible for
Intergovernmental Review Under 40 CFR
Part 29 and Subject to Section 204 of
the Demonstration" Cities and
Metropolitan Development Act; Notice
43
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29288 Federal Register / Vol. 48, No. 123 / Friday. June 24. 1983 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 29, 35, 40, 51, and 255
[OA-FfU.-2380-2(a)l
Intergovernmental Review of the
Environmental Protection Agency
Programs and Activities
AGENCY: Environmental Protection
Agency, Office of the Administrator.
ACTION: Final rule.
SUMMARY: These regulations implement
Executive Order 12372,
"Intergovernmental Review of Federal
Programs." The regulations apply to
federal financial assistance and direct
federal development programs and
activities of the Environmental
Protection Agency (EPA). Executive
Order 12372 and these regulations
replace the intergovernmental
consultation system developed under
Office of Management and Budget
(OMB) Circular A-95. They also
Implement section 4O1 of the
Intergovernmental Cooperation Act and
section 204 of the Demonstration Cities
and Metropolitan Development Act.
EFFECTIVE DATE: September 30.1983.
FOR FURTHER INFORMATION CONTACT:
John A. Cwynn, Chief, Grants Policy
and Procedures Branch (PM-216).
Environmental Protection Agency.
Washington. D.C 20460 (202) 362-526a
SUPPLEMENTARY INFORMATION: On
January 24.1963 (48 FR 3208) the
Environmental Protection Agency and
25 other federal agencies published
Notices of Proposed Rulemaking
' (NPRMs) to carry out Executive Order
12372. or notices proposing that their
programs not be subject to the Order.
Subsequently two more agencies
published NPRMs. bringing to 28 the
total number of proposals subject to
public comment. The EPA. in
conjunction with the other 27 federal
agencies and OMB. published a notice in
the Federal Register on April 21.1983 (48
FR 17101] reopening the comment
period, scheduling a public meeting for
May S. 1983. and requesting comments
on several tentative responses to
comments.
Including the comments received by
OMB and other federal agencies which
we incorporated in our rulemaking
docket the EPA received approximately
160 comments on government-wide
issues during the comment period. In
addition, the EPA received 42 comments
specifically related to the Inclusion or
exclusion of our programs from the
coverage of the Order or other issues
pertaining only to our Agency.
In preparing the final rule, the
Environmental Protection Agency
considered these comments as well as
testimony at public meetings held in
Washington on March 2.1983, and May
S. 1983. and a hearing before the Senate
Intergovernmental Relations
Subcommittee on March 3,1983.
Following consultation with OMB and
the other 22 federal agencies that are
issuing a final rule, we made several
changes from the proposed rule. The
EPA is fully committed to carrying out
Executive Order 12372. and intends
through these regulations to
communicate effectively with slate and
local elected officials and to
accommodate their concerns to the
greatest extent possible.
Several state, local, and regional
agencies asked that the regulations
not become effective on April 30. 1983.
as the NPRM had contemplated.
Postponing the effective date would give
state and local elected officials more
time to establish the state processes and
to consider which federal programs.they
wish to select for coverage. Responding
to these requests, the President
amended the Executive Order on April
8.1983, extending the effective date of
these final regulations until September
30,1983 (48 FR 15587, April 11, 1983).
The EPA's existing requirements and
procedures under OMB Circular A-95
will continue In effect through
September 30.1983.
Introduction to the Rules
The President signed Executive Order*
12372. "Intergovernmental Review of
Federal Programs." on July 14,1982 (47
FR 30959, July 18,1982). The objectives
of the Executive Order are to foster an •
intergovernmental partnership and a
strengthened Federalism by relying on
state and local processes for state and
local government coordination and
review of proposed federal financial
assistance and direct federal
development. The Executive Order"
—Allows states, after consultation with
local officials, to establish <£eir own
process for review and comment on
proposed federal financial assistance
and direct federal development;
—Increases federal responsiveness to
state and local officials by requiring
federal agencies to accommodate
state and local views or explain why
not
—Allows states to simplify, consolidate,
or substitute state plans; and
—Directs OMB to revoke OMB Circular
No. A-95.
Salient Features of the Policies
Implementing E.O. 12372
Three major elements comprise the
scheme for implementing.the Executive
Order. These are the state process, the
single point of contact, and the federal
agency's "accommodate or explain"
response to state and local comments •••
submitted in the form of a
recommendation.
State Process
The state process is the framework
under which state and local officials
carry out intergovernmental review
activities under the Executive Order.
The rule requires only two components
for the state process: (1) A state must
tell the federal agency which programs
and activities are being included under
the state process, and (2) a state must
provide an assurance that it has
consulted with local officials whenever'
it changes the list of selected programs
and activities. (The Executive Order
provides that states are also to consult
with local governments when
establishing the state process.) Any
other components are at the discretion
of the state. This lack of
prescriptiveness gives state and local
officials the flexibility to design a
process that responds to their interest*
and needs.-
A state Is not required to establish a.
state process. However, if no process U
established, the provisions of the
Executive Order and the implementing
rules (other than indicating how federal
agencies will operate under such
situations) do not apply. Existing
consultation requirements of other
statutes or regulations (except Circular
A-95) will continue in effect, including
those of the Intergovernmental
Cooperation Act of 1968. as amended,'
and the Demonstration Cities and
Metropolitan Development Act of 1986.
as amended. The intergovernmental
consultation provisions of Circular A48
inrJ as of September 30,1983.
While not required by the rule, most..
state processes will likely include the
following components:
—A designated single point of contact
—Delegations of review and commenj
responsibilities to particular state-'
areawide. regional, or local entitles^
—Procedures to coordinate and manag*
the review and comment on proposed
federal financial assistance or direcf
federal development, and to aid In
reaching a state process
recommendation;
—A means of consulting with local
officials; and
44
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29290 Federal Register / Vol. 48. No. 123. / Friday, June 24, 1983 / Rules and Regulations
Section 204 of the Demonstration Cities and Metropolitan Development Act of
1966, as amended (42 USC §3334)
Section 204. (a) All applications made after June 30, 1967, for Federal
loans or grants to assist in carrying out open-space land projects or for the
planning or construction of hospitals, airports, libraries, water supply
and distribution facilities, sewerage facilities and waste treatment works,
highways, transportation facilities, law enforcement facilities, and
water development and land conservation projects within any metropolitan
area shall be submitted for review —
(1) to any areawide agency which is designated to perfonm metropolitan
or regional planning for the area within which the assistance is to be
used, and which is, to the greatest practicable extent, composed of or
responsible to the elected officials of a unit of areawide government or
of the units of general local government within whose jurisdiction such
agency is authorized to engage in such planning, and
(2) if made by a special purpose unit of local government;, to the
unit or units of general local government with authority to operate in
the area within which the project is to be located.
(b)(l) Except as provided in paragraph (2) ot this subsection, each
application shall be accompanied (A) by the Garments and recanmindations
with respect to the project involved by the areawide agency aixl governing
bodies of the uiits of general local government to which the application
has been submitted for review, and (B) by a statement" by- the applicant
that such comments and recommendations have been considered prior to
formal submission of the application. Such comments shall include
information concerning the extent to which the project is consistent with
ccmprehensive planning developed or in the process of develrnment for the
metropolitan area or the unit of general local government, as the case may
45
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Federal Register / Vol. 48. No. 123 / Friday. June 24. 1983 / Rules and Regulations 29289
—A means of giving notice to
prospective applicants for federal
assistance aa to how an application is
to be managed under the state
process.
Federal agencies will list those
programs and activities eligible for
selection under the scope of the Order.
After consulting with local elected
officials, the state selects which of these
federal programs and activities are to be
reviewed through the state process and
sends OMB the initial list of selected
programs and activities. Subsequent
changes to the list are provided directly
to the appropriate federal agencies.
The federal agency provides the state
process, with notice of proposed actions
for selected programs and activities. For
any proposed action under a selected
program or activity, the state has among
its options those of: preparing and
transmitting a state process
recommendation through the single
point of contact; forwarding the views of
commenting officials and entities
without a recommendation: or not
subjecting the proposed action to state
process procedures.
For proposed actions under programs
or activities not selected, the federal
agency would provide notice,
opportunities for review, and
consideration of comments consistent
with the provisions of other applicable
statutes or regulations.
Single Point of Contact
The state single point of contact,
which may be an official or
organization, is the only party that can
initiate the "accommodate or explain"
response by federal agencies. The single
point of contact does so by transmitting
* slnte process recommendation. (The
terms "accommodate or explain" and
'stale process recommendation" are
explained later.) As indicated, there is
to be only one single point of contact.
The other functions undertaken by the
smgie point of contact are submitting for
f"deral agency consideration any views
Differing from a state process
recommendation, and receiving a
written explanation of a federal
agency's nonaccommodation. No other
responsibilities are prescribed by the
federal government for the single point
of contact, although a state could choose
to broaden the single point of contact
role.
The single point of contact need not
submit for federal agency consideration
those views sent to the single point of
contact by commenting officials and
entities regarding proposed actions
where there is no state process
recommendation. Commenting officials
and entities can submit such views
directly to the federal agency.
A state need not designate a single
point of contact. However, if a state fails
to designate a single point of contact, no
other entity or official can transmit
recommendations and be assured of an
accommodate or explain response by
the federal agency. Comments or views
may be transmitted by these other
entities or officials, but need only be
considered by the federal agency in
accordance with section 401 of the
Intergovernmental Cooperation Act and
other relevant statutory provisions.
"Accommodate or Explain"
When a single point of contact
transmits a state process
recommendation, the federal agency
receiving the recommendation must
either (1) Accept the recommendation;
(2) reach a mutually agreeable solution
with the parties preparing the
recommendation; or (3) provide the
single point of contact with a written
explanation for not accepting the
recommendation or reaching a mutually
agreeable solution, i.e..
nonaccommodation.
If there is nonaccommodation. the
federal agency is generally required to
wait IS days after sending an
explanation of the nonaccommodation
to the single point of contact before
taking final action.
A "state process recommendation" is
developed by commenting state,
areawide. regional, and local officials
and entities participating in the state -
process and transmitted by the single
point of contact. The recommendation
can be a consensus, or views rrf»y differ.
A state process recommendation which
is a consensus—i.e., the unanimous
• recommendation of the commenting -•
parties—of areawide. regional, and local
officials and entities can be transmitted.
All directly affected levels of
government need not comment on the
proposed action being reviewed to form
a state process recommendation. Also.
the state government need not be party.
to a state process recommendation.
A state process recommendation can
be transmitted on proposed actions
under either selected or nonselected
programs or activities.
Section by Section Analysis
In making changes from the NPRM to
this final rule, the EPA altered various
section and paragraph numbers. To
make these changes easier to follow, we
are providing a table showing where
each portion of the proposed rule is
covered in the final rule:
P"OQOMd rut* (MCttOn)
292
793(8)
295
281
392
293
29.7)
29.7W
298I«)
299
29 I0(a)
2910|
29.KXC).
2911
29 12
29 13
Portions of the final rule not listed in
this table (§ 29.5, § 29.6(a). § 29.7(b), and
5 29.8(c)) are new.
Section 29.1 What is the purpose of
these regulations?
There is only one substantive change
to this section, but it is an important
one. The NPRM, while citing section 401
of the Intergovernmental Cooperation
Act as authority, did not specifically
contain provisions to implement some of
.its>require.B3ents. Nor did the NPRM
expressly implement section 204 of the
Demonstration Cities and Metropolitan
Development Act. These statutes
provide as follows:
aiLLJNQ COOt 6WO-SO-U
4-6
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Federal Register / Vol. 48, No. 123 / Friday, June 24, 1983 / Rules and Regulations 29291
pe, and the extent to which such' project contributes to the fulfillment
'of such planning. The comments and the recommendations and the staterrent
referred to in this paragraph shall, except in the case referred to in
r^ragraph (2) of this subsection, be reviewed by the agency of the Federal
Gov^rrment to which such application is submitted for the sole purpose of
.insisting it in determining whether the application is in accordance with
the provisions of Federal law which govern the making of the loans or grants.
(2) An application for a Federal loan or grant need not be accompanied
!;y the comments and re centre ndat ions and the statements referred to in
paragraph b(l) of this subsection, if the applicant certifies that a plan
or description of the project, meeting the requirements of such rules and
regulations as tray be prescribed under subsection (c), or such application,
has lain before an appropriate areawide agency or instrumentality or unit
of Qeneral local government for a period of sixty days without cements
or recornmerxjations thereon being made by such agency or instrumentality.
(3) The requirements of paragraphs (1) and (2) shall also'apply to
any amendment of the application which, in light of the purposes of this
title, involves a major change in the project covered by the application
prior to such amendment.
(c) The Office of Management and Budget, or such other agency as
iey be designated by the President, is hereby authorized to prescribe such
rules and regulations as are deemed appropriate for the effective
Administration of this section. - - -.,
Section 401 of the Intergovernmental Cooperation Act of 1968, as amended,
(31 USC 6506)
§6506. Development assistance
(a) The economic and social development of the United States and the
47
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29292 Federal Register / Vol. 48. No. 123 / Friday. June 24. 1983 / Rules and Regulations
achievement of satisfactory levels of living depend on the sound and
orderly development of urban and rural areas. Vfrien urbanization proceeds
rapidly, the sound and orderly development of urban comnunities depends
to a large degree on the social and economic health and the sound
development of smaller carmunities and rural areas.
(b) The President shall prescribe regulations governing the formulation,
evaluation, and review of United States Government programs and projects
having a significant impact on area and community development (including
programs and projects providing assistance to States and localities) to
serve most effectively the basic objectives of subsection (a) of this
section. The regulations shall provide for the consideration of concurrently
achieving the following specific objectives and, to the extent authorized
by law, reasoned choices shall be made between the objectives when they
conflict:
(1) appropriate land uses for housing, ccmercial, industrial,
governmental, institutional, and other purposes.
(2) wise developnent and conservation of all natural resources.
(3) balanced transportation systems, including highway, air,
water, pedestrian, mass transit, and other means to move people and goods.
(4) adequate outdoor recreation and open space.
(5) protection of areas of unique natural beauty and historic and
scientific interest.
(6) properly planned conmunity facilities •(including-utilities
for supplying power, water, and connunications) for-safely disposing of
wastes, and for other purposes.
(7) concern for high standards of design.
(c) To the extent possible, all national, regional, State, and local
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Federal Register / Vol. 48. No. 123 / Friday. June 24, 1983 / Rules and Regulations 29293
_ . — . - -. _ -. —
shall be considered in planning development programs and
^f jects of the United States Government or assisted by the Government.
and local government objectives and the objectives of regional
ons shall be considered within a framework of national public
expressed in laws of the United States. Available projections
,,t future conditions in the United States and needs of regions, States,
Hnd localities shall be considered in plan formulation, evaluation, and review.
(d) To the maximum extent possible and consistent with national
oDjectives, assistance for development purposes shall be consistent with
.,m1 further the objectives of State, regional, and local comprehensive
planning. Consideration shall be given to all developnental aspects of
our total national community, including housing, transportation, economic
(t-v/elopnent, natural and human resources development, community facilities,
and the general improvement of living environments.
(e) To the maximum extent practicable, each executive agency carrying
out a development asistance program shall consult with and seek advice
(ran all other significantly affected executive agencies in an effort to
••nsure completely coordinated programs. To the extent passible, systematic
planning required by individual United States Government programs (such
<\s highway constnx:tion, urban renewal, and open space) shall be coordinated
vith and, to the extent authorized by law, made part of comprehensive
local and areawide development planning.
(f) Mien a law of the United States provides that both a special-
pjrpose unit of local government and a unit of general local government
•f
ore eligible to receive a loan or grant, the head of an executive agency
shall make the loan or grant to the unit of general local government
i.istead of the special-purpose unit of local government in the absence of
substantial reasons to the contrary.
(g) The President may designate an executive agency to prescribe
regulations to carry cut this section.
••ujxo cooc esso-re-c
49
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Federal Register / Vol. 46. No. 123 / Friday, [une 24. 1963 /Rules and Regulations 29295
aiiJ Hr.iivities which are eligible for
"•lection for a state process. However.
*n response to comments we reexamined
,"P criteria for exclusion as well as the
•vnrticular exclusions that were
!,n,posed. These criteria and particular
rvr.l.is'0"3 are discussed in more detail
.P ihc section of the preamble covering
,,,ire issues.
To provide information on the
„, unties and programs eligible for
j, iVclion for state processes, the Agency
,.« publishing a notice listing these
•i:u:luded" programs and activities.
l-tchided programs to which section 204
,,f the Demonstration Cities and
Striropolitan Development Act applies
,,rr indicated with an asterisk(').
Si-i-ritm 204 obligations apply with
ri^|K!ct lo these programs only for
;,-,,|iTts or activities located in
Irriropolitan areas. Otherwise, these
;,',.,<(•' is are treated like any other
j,r
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Federal Register / Vol. 4B. No. 123 / Friday, June 24, 1983 / Rules and Regulations 29297
The state process recommendation
provision is intended to clarify the
reciprocal responsibilities of Lhe state
and federal agencies under the
Executive Order. The Order is an
important part of the Administration's
Federalism policy. Federalism means.
among other things, that federal
agencies should give greater deference
to, and make greater efforts to
accommodate, the concerns of stale and
local elected officials than has
•onetimes been the case in the past. But
Federalism also means, in the
Administration's view, that state and
local officials themselves have a
responsibility to attempt to solve
Intrastate problems without resort to
intervention from Washington. Where
I tales and other directly affected parlies
carry out these responsibilities by
forging a slate process recommendation.
it is highly appropriate for the federal
government to give these
recommendations the increased
attention that the "accommodate or
explain" process provides. We wish to
emphasize that, in any case. EPA will
always consider all comments it
receives under these regulations.
The Agency's practical, as well as
theoretical, reasons for stressing
consensus building were described in
the NPRM. We expect that carrying out
•w "accommodate or explain"
"•ponsibility will be greatly aided
**»n a single, unified position is
P»wented for response. However.
j*veral comment ers said that it would
•• difficult to achieve or undesirable to
•tempt consensus with respect to some
PfojecU or programs. Many of these
?*»menls were in connection with the
*T
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20298
Federal Register /- Vol. 48. No. 123 /Friday, June 24. 1983 / Rules and Regulations
We included a new paragraph (c) in
the final rule to clarify when the ten-day
waiting period begins to run. If EPA has
made a telephone call (or other oral
communication) to the single point of
contact advising of the
nonaccominodation and providing an
explanation, the ten-day period begins
to run from the date of that
communication, even though the written
explanation arrives later If EPA srnds a
loiter but does not make a telephone
call, the ten-day period begins on the
date the single point of contact is
presumed to have received il. This
presumptive dale of receipt is five days
from the date on which the letter is sent,
a period consistent wilh the
longstanding successful practice of the
Social Security Admit.islrntion and
longer than that used for presumptive
receipt of official papsrs in many other
legal contexts. In effect. EPA will be free
to begin carrying out its decision on the
sixteenth day after the day we sent the
letter.
Some commented indicated that what
they sought most was federal agency
responsiveness to their comments.
These commenters felt the lack of
responsiveness was a significant failing
of the intergovernmental process under
OMB Circular A-95. In providing
explanations of nonaccommodation. the
Environmental Protection Agency will
make an effort to be as responsive as
practicable consistent with our
responsibilities to accomplish program
objectives and to expend funds in a
sound financial manner.
Section 29.11 What are the
Administrator's obligations in interstate
situations?
While this section is based on 5 29.8
of the NPRM. one feature—the provision
of 45 days for comment in interstate
situations—has been dropped because
the comment period in the final rule is 80
days, except for noncompeting
continuation awards.
EPA received several comments on its
handling of interstate situations. Most of
these comments asked for greater
federal guidance or involvement in
interstate situations, especially when
various affected states did not agree
with one another. Some commenters
also said that greater attention should
be given to the role of interstate
metropolitan areas and the designated
areawide entities that represent them.
We do not believe that it is necessary to
provide a procedure for resolving
interstate conflicts. It is clearly in our
interest to have affected states mutually
agree on EPA'a programs and projects
!hat affect interstate situations. On a
case-by-case basis, as appropriate, we
will work wilh officials of states
involved in an interstate situation in an
attempt to secure this agreement. This
should not be a regulatory requirement.
however.
The Environmental Protection Agency
believes that designated areawide
agencies in interstate metropolitan areas
have an important role to play.
Consequently, 8 29.11(a)(3) now
specifically mentions designated
areawide entities as being among those
which the EPA will make efforts to
notify in interstate situations. OMB will
periodically provide us with a list of
designated interstate areawide entities.
Section 29.11(a)(4) provides that the
recommendation of a designated
interstate areawide entity will be given
"accommodate or explain" treatment by
us if it is sent through a state single
point of contact, and if the areawide
entity has been delegated a review and
comment role for the program or activity
being commented on by a state process.
For example, the Metropolitan
Washington. D.C. Area Council of
Governments (COG) represents
jurisdictions in an interstate area
including Darts of Maryland. Virginia
and the District of Columbia. If that
Council of Governments was delegated
a specific review role and makes a
recommendation on an EPA proposed
action, and lhat recommendation is
transmitted to us through the single
point of contact of either Maryland.
Virginia, or !he District of Columbia.
EPA is obligated to accommodate or
explain. If a state process
recommendation differing from the
Washington COG recommendation is
also transmitted by another state's
single point o? contact. EPA would also
accommodate or explain lhat
recommendation as well.
Section 29.12 How may a state
simplify, consolidate or substitute
federally required state plans?
This section is unchanged from the
NPRM; however, we did receive a
number of comments on it. Several
agreed lhat states should be able to
simplify state plans, but objected to
allowing states to consolidate their
plans. The reasons for these objections
differed; most appeared to be from those
who feared that consolidation of state
plans would cause the interests of
particular groups or particular programs
to be ignored. As this section merely
implements the requirement of the Order
that federal agencies allow the
consolidation of state plans, the
Environmental Protection Agency had
little discretion in developing this
provision. In addition, EPA is obligated
to ensure that any simplified or
consolidated state plan continues to
met! all federal requirements. For
example, a consolidated plan that failed
to meet statutory or regulatory
requirements for a particular program
would not be approved.
One commenter recommended that an
appeals process be established to deal
with situations where federal agencies
disapprove modified stale plans. The
EPA believes lhat such a process is no)
necessary, because if a federal agency
disapproves a modified plan for failure
to meet federal requirements, the state
can appeal the decision through normal
agency mechanisms. In any event. EPA
will work with states during the review
process to resolve problems that could
impede approval.
A few commenters recommended that
there be a federal "single point of
contact" for state plans or other
purposes. We believe this idea would
not work, because of differing agency
responsibilities under the wide variety
of program statutes that various federal
agencies carry out. In addition, federal
agencies need to retain existing
delegations of state plan approval
authority. However. EPA and other
federal agencies will each designate a
focal point wilh whom states can
contact on state plan matters. In
addition, the federal agencies having
state plans intend to establish an
informal interagency steering group.
which will meet quarterly to discuss
state plan matters. Through this steering
group, as well as by interagency
contacts in specific situations, federal
agencies will coordinate with each other
in cases when states consolidate plans
across federal lines. This coordination
should promote consistent
determinations among and within
agencies on state plans.
Finally, one commenter suggested lhat
the federal agencies develop a model
stale plan format that could be used by
the stales. While we are willing to
provide suggestions in response to
specific state questions (including
providing formats that have been used
successfully by other states), we believe
that states should be free to develop
their own formats to reflect their own
situations. Consequently, EPA will not
develop model formats, since formats
developed as models for the voluntary
u.«e of stales could come to be regarded
either by federal agencies or by states.
as required.
A list of state plans that may be
simplified, consolidated, or substituted
for appears elsewhere in today's Federal
Register and will be updated
periodically.
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Federal Register / Vol. 48, No. 123 / Friday. June 24, 1983 /Rules and Regulations
29299
Section 29.13 'May the Administrator
14'0/vs any provision of these
regulations?
This provision is unchanged from the
jsipRM. although the section number is
Banged. A few commenters objected to
this waiver provision, appwrently in the
belief thfll it was a loophole allowing
federal noncompliance with the
Executive Order. The Environmental
piotection Agency is strongly committed
to compliance with the Order, and will
OJe the emergency waiver provision
only in those rare instances where an
unanticipated situation makes prompt
action necessary without full
compliance with all provision of these
regulations. If EPA uses the emergency
waiver provision, we will attempt, to the
extent feasible and meaningful, to
involve the stale process in subsequent
decision making concerning the matter
about which the waiver was used. In
addition, EPA will keep records of all
jituations in which the emergency
waiver was used.
Other Comments
In addition to comments specifically
pertaining to various features of these
regulations, there are several other
comments made-to the Agency to which
*e would like to respond. Several
commenters said that the Office of/
Management and Budget should have a
•tronger oversight role, thus ensuring
that federal agencies carry out their
obligations under the Order and these
regulations. Behind these comments
seems to be a concern that federal
agencies are not really interested in
consulting with state and local
governments and a view that, in the
absence of an OMB "policing" role. \
agencies would tend to ignore these
obligations.
The Environmental Protection Agency
waals to state unequivocally that it is
fully committed lo implementing all of
the provisions of the Order and these
regulations, and will act quickly to
respond to complaints from states,
treawide. regional and local officials
ud entities that mistakes or omissions
kive been made with respect to our
obligations Carrying out this Order
filthfully and forcefully is an important
pot of the Administration's Federalism
policy, and the Administration's
pollcymaking officials intend the policy
to be carried out fully by everyone in
_(heir agencies.
... OMB will have a general oversight
111* with respect to federal agency
taplementalion of the Order, including
** required p-eparation of a report in
"I* 1984 concerning the operation of the
•** process. OMB will periodically
review agency records of
nonaccommodations and wuivcrs. OMB
has advised the agencies, however, that
a detailed operating review or "policing"
relationship would not be consistent
with the role of OMB vis-a-vis the olhur
federal agencies. OMB is not Intended to
have day-to-day operational
responsibilities with respect to federal
programs. Concerning these regulations.
as with respect to other agency
operation responsibilities, the officials
of EPA are responsible to the
Administrator who in turn is responsible
to the President for carrying out
important Adminstration policy.
Finally, a number of commenters
reminded EPA and other agencies that
we should continue to follow existing
statutory requirements that affect many
federal agencies with respect lo
environmental Impact statements,
historic preservation, civil rights, etc.
We will continue to follow all such
crossculting requirements and other
.independent consultation requirements.
To the extent that it is feasible to do so.
EPA will work with states to intergrate
handling of some of these crosscutting
requirements with the official state
process. However, regardless of the
structure of a state's process or whether
there is a state process at all, the
Agency will continue to meet all legal
requirements in these areas.
In a related question, some
commenters asked how certain
requirements concerning environmental
impact statements, coastal zone ,
management, and health systems
agencies would be handled
administratively under these
regulations. Under the A-95 system.
clearinghouses often coordinated
responses to federal agencies relating lo
these matters. Under the Executive
Order system, a slate could, if it wished.
designate the single point of contact or
other entity to circulate documents and
to bear the administrative responsibility
for coordination and review. Federal
agencies could also continue any
arrangements or relationship! with
entities in the state that now exist to
facilitate this review and comment.
Where it is feasible, we encourage a
coordinated response under these
regulations and other coordination
requirements.
Scope
A few commenters specifically
objected to this Agency's exclusion of
certain plan and permit programs from
the Order's provisions for interstate
situations. We have retained these
exclusions in our final rule and wan' to
clarify our reasons for so doing.
All section 110(a) State
Implementation Plans (SIP's). and
revisions thereto, are stale-developed
nnd undergo an extensive
intergovernmental review prescribed by
si-ctions 110(a). 121, 126. and 174 of the
Clean Air Act before they are adopted.
EPA's regulation. 40 CFR Part 51 (5 51.4
and Snbpail M) implements those
requirements. They exist beccuse most
section 110(a) SIP's have an interstate
impact.
A SIP or revision issued under section
llO(c) of the Clean Air Act is one that
EPA must develop and issue in lieu of a
state's plan or portion thereof, when the
state's is found inadequate. A federally
promulgated SIP under section 110(c)
not only considers the pertinent results
of the state's section 110(a) process, bui
is also subject to the Administrative
Procedure Act requirements for public
comment and review. To subject such a
federal action to an additional, duplicate
process would further delay
implementing a necessary
environmental control plan mandated
by Congress.
Our reason for excluding certain
federally Issued permits that may have
an impact on interstate areas are much
the same. Each permit program's
regulation implements specific
requirements for public input before an
EPA final decision or action. To require
another intergovernmental review and
consultation system is unnecessary. Our
program specific statutes and
implementing regulations provide ample
opportunity for notification.
consultation, and public comment on
permits which may affect an interstale
area.
One commenler notified EPA that ils
state process would require that:
' ' * all state agency applications for any
type of Federal assistance. MCOTbe
submitted to the Slate Clearinghouse for a
review an
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29300
Federal Register / Vol. 48, No. 123 / Friday. June 24. 1983 / Rules and Regulations
demonstration projects). The separate
notice in today's Federal Register lists
all of the EPA programs and activities
included in the scope of the Order.
Conforming Amendments
In the rVPRM. we cited other EPA
regulations that we expected to amend
as part of this final rule. Because the
effective date for implementing rules
under the Order was extended, we do
not need to amend the existing general
grant regulation (40 CFR Part 30) and
construction grant regulation (40 CFR
Part 35—Subparuj E and I). EPA is
completing new general assistance and
construction grant regulations which
reflect the new intergovernmental
review process. They are expected to be
effective by October 1,1983. as will this
final rule.
Executive Order 12291, Paperwork
Reduction Act and Regulatory
Flexibility Act
The Environmental Protection Agency
has determined that this is not a major
rule under Executive Order 12291. The
rule will simplify consultation with the
Agency and allow state and local
governments to establish cost effective
consultation procedures. For this reason.
the EPA believes that any economic
•impact the regulation has will be
positive. In any event, it is unlikely that
its economic impact will be significant.
Consequently, the EPA certifies, under
the Regulatory Flexibility Act. that this
rule will not have a significant ecorlomic
impact on a substantial number of small
entities. This rule is not subject to
section 3504(h) of the Paperwork
Reduction Act. since it does not require
the collection or retention of
information.
List of Subjects in:
40 CFR Part 29
Intergovernmental relations.
40 CFR Part 35
Air pollution control.
Grant programs—environmental
protection.
Indians,
Intergovernmental relations.
Pesticides and pests,
Reporting and recordkeeping
requirements.
Waste treatment and disposal.
Water pollution control.
40 CFR Part 40
Environmental protection.
Grant programs—environmental
protection.
Intergovernmental relations,
Reporting and recordkeeping
requirements.
Research.
40 CFR Part 51
Administrative practice and
procedure.
Air pollution control.
Intergovernmental relations.
Reporting and reoirdkeeoinfi
requirements,
Ozone,
Sulfur oxides.
Nitrogen dioxide,
Lead.
Participate matter.
Hydrocarbon,
Carbon monoxide.
40 CFR Part 255
Waste treatment and disposal.
Intergovernmental relations.
Dated: June 17. 1983
William D. Ruckelihaus,
Adminittrntor.
1. For the reasons set out in the
Preamble, the U.S. Environmental
Protection Agency amends Title 40.
Code of Federal Regulations, by adding
a new Part 29, to read as follows:
PART 29— INTERGOVERNMENTAL
REVIEW OF ENVIRONMENTAL
PROTECTION AGENCY PROGRAMS
AND ACTIVITIES
29.1 What is the purpose of these
regulations?
29.2 What definitions apply to these
regulations?
29.3 What programs and activities of the
Environmental Protection Agency are
subject to these regulations?
29.4 What are the Administrator') general
responsibilities under the Order?
29.5 What is the Administrator's obligation
with respect lo federal tnteragency
coordination?
29.6 What procedures apply to the selection
o( programs and activities under these
regulations?
29.7 How does the Administrator
communicate with state and local
officials concerning EPA programs and
activities?
29 8 How does the Administrator provide
states an opportunity to comment on
proposed federal financial assistance
and direct federal development?
29 9 How does the Administrator receive
and respond to comments?
29 10 How dons the Administrator make
efforts lo accommodate
intergovernmental concerns?
29.11 What are the Adm.nislrator's
obligations in m'.ersid'e situations?
20.12 How may a state simplify.
consolidate, or substitute federally
required stale plans'
29 13 May the Administrator waive any
provision of these regulations?
Authority: Executive Order 1C372. July 14.
1D82 (47 FR 3C959J. as amended Apnl 8. 1983
(48 FR 15887); Sec 401 of the
Intergovernmental Cooperation Act of 1968
as amended (31 U.S.C. 9506): Sec. 204 of the
Demonstration Ciues and Metropolitan
Development Act of 1868. a> amended (42
U.S.C. 3334).
} 29.1 What to th« purpose o f tnes«
regulation*)?
(a) The regulations in this part
implement Executive Order 12372.
"Intergovernmental Review of Federal
Programs," issued July 14,1962. and
amended, on April 8,1983. These
regulations also implement applicable
provisions of section 4XM of the
Intergovernmental Cooperation Act of
1968, as amended and section 204 of the
Demonstration Cities and Metropolitan
Development Act of 1966, as amended
(b) These regulations axe intended to
foster an intergovernmental partnership
and a strengthened Federalism by
relying on state processes and on state.
areawide. regional and local
coordination for review of proposed
federal financial assistance and direct
federal development.
(c) These regulations are intended to
aid the internal management of the
Environmental Protection, Agency (EPA)
--Nand are not intended to create any right
or benefit enforceable at law by a party
against EPA or its officers.
5 29.2 What definitions apply to tnes*
regulations?
"Administrator" means the
Administrator of the U.S. Environmental
Protection Agency or an official or
employee of the Agency acting for the
Administrator under a delegation of
authority.
"Agency" means the U.S.
Environmental Protection Agency (EPA)-
"Order" means Executive Order 123"2.
issued [uly 14. 1982. and amended April
8, 1983. and titled "Intergovernmental
Review of Federal Programs."
"States" means any of the 50 states.
the District of Columbia, the
Commonwealth of Puerto Rico, the
Commonwealth of the Northern Marian*
Islands. Guam. American Samoa, the
U.S. Virgin Islands, or the Trust
Territory of the Pacific Islands.
5 29.3 What programs «nd idtvltle* ^ ""*
Environmental Protection Agency ar«
tublscl to th«M regulations?
The Administrator publishes in the
Fedenil Register a list of the EPA
programs and activities that are subje^
to these regulations and identifies <•"»
of these are subject to the requirerne11
of section 204 of the Demonstration
Cities and Metropolitan Development
Act.
54
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Federal Register /Vol. 48. No. 123 / Friday. June 24. 1983 / Rules and Regulations 29301
I"
pen
4 What are the Administrator's
leral responsibilities under ttia Order?
|8) The Administrator provides
Opportunities for consultation by elected
officials of those state and local
jovemments that would provide the
non-federal funds for. or that would be
directly affected by. proposed federal
financial assistance from, or direct
federal development by. the EPA.
(b) If B state adopts a process under
the Order to review and coordinate
proposed federal financial assistance
and direct federal development, the
Administrator to the extent permitted by
law:
(1) Uses the state process to
determine official views of state and
local elected officials;
(2) Communicates with state and local
elected officials as early in a program
planning cycle as is reasonably feasible
to explain specific plans and actions:
(3) Makes efforts to accommodate
ilale and local elected officials'
concerns with proposed federal
financial assistance and direct federal
development that are communicated
through the state process:
(4) Allows the states to simplify and
consolidate existing federally required
state plan submissions:
(5) Where state planning and
budgeting systems are sufficient and
where permitted by law, encourages the
substitution of state plans for federally
required state plans;
(6) Seeks the coordination of views of
affected state and local elected officials
in one state with those of another state
when proposed federal financial
assistance or direct federal development
has an impact on interstate metropolitan
urban centers or other interstate areas:
and
(7) Supports state and local
governments by discouraging the
reaulhohzation or creation of any
planning organization which is
federally-funded, which has a limited
purpose, and which is not adequately
representative of, or accountable to.
state or local elected officiate.
I ».S What I* the Administrator*!
obligation with respect to federal
tnteragency coordination?
The Administrator. 10 the exient
practicable, consults with and seeks
•dvice from all other substantially
affected federal departments and
agencies in an effort to assure full
coordination between such agencies and
EPA regarding programs and activities
covered under these regulations.
{ 29.S What procedures apply to trie
selection of programs and activities under
these regulations?
(a) A state may select any program or
activity published in the Federal
Register in accordance with § 29.3 of
this part for intergovernmental review
under these regulations. Each slate.
before selecting programs and activities.
shall consult with local elected officials
(b) Each stale that adopts a process
shall notify the Administrator of EPA
programs and activities selected for that
process.
(c) A state may notify the
Administrator of changes in its
selections at any time. For each change.
the state shall submit an assurance to
the Administrator that the stale has
consulted with local elected officials
regarding the change. EPA may
establish deadlines by which states are
required to inform the Administrator of
changes in their program selections.
(d) The Administrator uses a state's
process as soon as feasible, depending
on individual programs and activities.
after the Administrator Is notified of its
selections.
5 29.7 How does the Administrator
communicate with stale and local officials
concerning the EPA programs and
activities?
(a) For those programs and activities
covered by a state process under 5 29.6.
the Administrator, to the extent
permitted by law:
(1) Uses the state process to
determine views of state and local
elected officials; and
(2) Communicates with state and local
elected officials, through the state
process, as early in a program planning
cycle asis reasonably feasible to explain
specific plans and actions.
(b) The Administrator provides noUce
of proposed federal financial assistance
or direct federal development to directly
affected state, areawide. regional, and
local entities in a state if:
(Ij The state has not adopted a
process under the Order, or
(2) The assistance or development
involves a program or activity not
selected for the state process.
This notice may be published in the
Federal Register or issued by other
means which EPA. in Its discretion
deems appropriate.
How does the Administrator
provide States an opportunity to comment
on proposed federal financial assistance
and direct Federal development?
(a) Except in unusual circumstances,
the Administrator gives state processes
or directly affected state, areawide.
regional and local officials and entities:
(1 j At least 30 days from the date
established by the Administrator to
comment on proposed federal financial
assistance in the form of nor.competing
continuation awards: and
[2) Al leasl 60 days from the date
established by the Administrator to
comment on proposed direct federal
development or federal financial
assistance, other than noncompeting
continuation awards.
(bj This section also applies to
comments in cases in which the review.
coordination, and communication with
the Environmental Protection Agency
have been delegated.
(c) Applicants for programs and
activities subject to section 204 of the
Demonstration Cities and Metropolitan
Development Act shall allow areawide
agencies a 60-day opportunity for review
and comment.
§ 29.9 How does the Administrator receive
and respond to comments?
(a) The Administrator follows the
procedures in J 28.10 if:
(1) A state office or official is
designated to act as a single point of
contact between a state process and all
federal agencies, and
(2) That office or official transmits a
slate process recommendation for a
program selected under } 29.6.
(b|7The single point of contact is not
obligated to transmit comments from
state, areawide. regional or local
officials and entities where there is no
slate process recommendation.
However, if a stale process ,
recommendation is transmitted by a
single point of contact, all comments
from stale, area-wide, regional, and
local officials and entities that differ
from il must also be transmitted.
(c) If a state has not established a
process, or is unable to submit a state
process recommendation, the slate.
areawide. regional and local officials
and entities may submit comments
directly either to the applicant or to
EPA.
(d) If a program or activity is not
selected for a slate process, the state.
areawide. regional and local officials
and entities may submit comments
either directly to the applicant or to
EPA. In addition, if a state process
recommendation for a nonsclected
program or activity is transmitted to
EPA by the single point of contact, the
Administrator follows the procedures of
5 29.10 of this Part
(e) The Administrator considers
comments which do not constitute a
state process recommendation
submitted under these regulations and
for which the Administrator is not
55
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29302
Federal Register / Vol. 48. No. 123 / Friday, June 24. 1983 / Rules and Regulations
required to apply the procedures of
5 29.10 of this part, when such
comments are provided by a single point
of contact, by the applicant, or directly
to the Agency by a commenting party.
29.10 How does trie Administrator make
effort* to accommodate Intergovernmental
concern*?
(a) If a state process provides a state
process recommendation to the Agency
through the state's single point of
contact, the Administrator either
(1) Accepts the recommendation;
(2) reaches a mutually agreeable
solution with the state process: or
(3) Provides the single point of contact
with such written explanation of the
decision, as the Administrator, in his or
her discretion, deems appropriate. The
Administrator may also supplement the
written explanation by providing the
explanation to the single point of
contact by telephone, other
telecommunication, or other means.
(b) In any explanation under
paragraph (a)(3) of this section, the
Administrator informs the single point of
contact that:
(1) EPA will not implement its
decision for at least ten days after the
single point of contact receives the
explanation: or
(2) The Administrator has reviewed
the decision and determined that,
because of unusual circumstances, the
waiting period of at least ten days is not
feasible.
(c) For purposes of computing the
waiting period under paragraph (b)(l) of
this section, a single point of contact is
presumed to have received written
notification 5 days after the date of
mailing of such notification.
{29.11 What are rne Administrator1*
obligations In Interstate situations?
(a) The Administrator is responsible
for
(1) Identifying proposed federal
financial assistance and direct federal
development that have an impact on
interstate areas:
(2) Notifying appropriate officials and
entities in states which have adopted a
process and selected an EPA program or
activity.
(3) Making efforts to identify and
notify the affected state, areawide,
regional, and local officials and entities
in those states that do not adopt a
process under the Order or do not select
an EPA program or activity,
(4) Responding in accordance with
§ 29.10 of this part to a recommendation
received from a designated areawide
agency transmitted by a single point of
contact, in cases in which the review.
coordination, and communication with
EPA were delegated.
(b) The Administrator uses the
procedures in 5 29.10 if a state process
provides a state process
recommendation to the Agency through
a single point of contact.
5 29.12 How may a state simplify.
consolidate, or substitute federally
required stare plena?
(a) As used in this section:
(1) "Simplify" means that a state may
develop its own format, choose its own
submission date, and select the planning
period for a state plan.
(2) "Consolidate" means that a state
may meet statutory and regulatory
requirements by combining two or more
plans into one document and that the
state can select the format, submission
date, and planning period for the
consolidated plan.
(3) "Substitute" means that a state
may use a plan or other document that it
has developed for its own purposes to
meet federal requirements.
(b) If not inconsistent with law. a
state may decide to try to simplify,
consolidate, or substitute federally
required state plans without prior
approval by the Administrator.
[c) The Administrator reviews each
state plan that a state has simplified,
consolidated, or substituted and accepts
the plan only if its contents meet federal
requirements.
} 29.13 May the Administrator waive any
provision of UMM regulations?
In an emergency, the Administrator
may waive any provision of these
regulations. '
2. For the reasons set forth in the
preamble. 40 CFR Parts 35, 40, 51, and
255 are amended as follows:
PART 35—{AMENDED]
Section 35.1620-6 is revised in its
entirety to read as follows:
{35.1620-8 Intergovernmental review.
EPA will not award funds under this
subpart without review and consultation
in accordance with the requirements of
Executive Order 12372, as implemented
in 40 CFR Part 29 of this chapter.
PART 40—(AMENDED]
Section 40.135-1 Is amended by
removing 5 40.135-l(b) and
redesignating 4 40.135-l(c) as 8 40.135-
l(b): by amending § 40.135-2 to add a
new paragraph (e) to read as follows:
{40.135-2 Application requirement*.
(e) Intergovernmental review. EPA
will not award funds under this subpart
without review and consultation, if
applicable, in accordance with the
requirements of Executive Order 12372.
as implemented in -10 CFR Part 29 of this
chapter.
PART 51—(AMENDED)
{51.241 [Amendodl
Section 51.241(c) is amended by
removing the last sentence, "Attention is
directed to Part IV of the Office of
Management and Budget Circular A-95
(41 FR 2050) which encourages the
designation of established, aubstate
comprehensive planning agencies as the
agencies to carry out Federally assisted
or required areawide planning."
{51.248 (Amended]
Section 51.248(b) is amended by
removing the last sentence. "The
provisions of items 3a through d, Part W
of the Office of Management and Budget
Circular A-95 shall be considered in the
preparation of memoranda of
understanding."
Section 51.251 is revised in its entirety
to read as follows:
{ 51.251 Conformity wltri Executive Order
12372.
The organization responsible for
developing the state implementation
plan revision shall submit a draft of any
major implementation plan revision
including any of the six elements listed
in 5 51.244 to the state process, if one
has been designated by the stale under
Executive Order 12372.
"Intergovernmental Review of Federal
Programs" (47 FR 30959. July 16.1982) «•
amended April 8. 1983 (48 FR 15587.
April 11.1983) for review and comment
for a period of 60 days. The draft plan *
portions thereof, shall be submitted to
the state process either prior to or
concurrent with announcement of public
hearings on the plan. Comments
received from the state process w'1^'}
that 60-day period shall be considered.
The organization Initiating the plan
revision shall retain copies of these
comments for inspection by the
Administrator and the public.
3 51.252 [Amended]
Section 51.252(b) is amended by
removing the words "in the A-35
clearing house" and adding, in their
place, "from the state process
designated under Executive Order
12372".
PART 255—(AMENDED]
{ 255.2 (Amended]
Section 255.2 is amended by re1110^
the words "OMB Circular A-95 Pa" '
56
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Federal Register / Vol. 48, No. 123 / Friday, June 24. 1983 / Rules and Regulations 2930C
of Attachment A" and adding in (heir
place. "40 CFR Part 29 of this chapter"
j 255.20 [Amended]
Section 255.20 is amended by
removing the words "the chief
executives of all agencies designated
pursuant to OMB Circular No. A-95. and
with" and adding in their pUce.
"regional and areawide planning
agencies,".
! 255,23 [Amended]
Section 255.23(a) is amended to
remove the words. "A-95
clearinghouses" and adding, in their
place, "agencies and the slate process
under Executive Order 12372".
,T» Oat «J-lm23 F.ltd 9-n-sl lii
-------
40 CFR PART 30 -
GENERAL REGULATION FOR ASSISTANCE PROGRAMS
- vi -
58
-------
Friday
September 30, 1983
Part VIII
Environmental
Protection Agency
General Regulation for Assistance
Programs
59
-------
45056
Federal Register / Vol. 48. No. 191 /Friday,.September 30. 1983 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFH Part 30
(OA-Fm. 2277-2)
Qmeral Regulation for Awlstanc*
PfOOTMIS
T Environmental Protection
Agency.
ACTION: Final rale.
r. On June 18.1982. EPA
proposed in the Federal Register (47 FR
28504) the General Regulation for
Assistance Programs governing grants
and cooperative.agreements, with a
request for comments. Today, we are
publishing the final regulation
implementing the requirements in the
Federal Grant and Cooperative
Agreement Act and using plain English.
revised to reflect our responses to
comments received. This final rule
includes only those assistance
requirements which are mandated by
statute, or Office of Management and
Budget (OMB) Circulars, or which are
necessary for effective program
management. The regulation applies to
all EPA financial assistance programs
listed in the 66.000 series in the Catalog
of Federal Domestic Assistance.
DATE This rule is effective for
assistance agreements which EPA
awards after September 30,1983 except
for (1) t 30.303(b) which will be effective
for assistance agreements EPA awards
after September 30.1993. and (2)
Subpart L which will be effective for
assistance disputes Hied after October
31.1983. regardless of when EPA
awarded the assistance agreement.
FOH FURTHER INFORMATION CONTACT:
Richard A. Johnson. Grants Policy
Specialist Grants Policy and Procedures
Branch, Grants Administration Division
(PM-216). 4O1 M Street. S.W..
Washington. D.C. 20460 (202) 382-5296.
SUPPLEMENT ARY INFORMATION: On April
8.1980, EPA published an "Advance
Notice of Proposed Rulemaking" (AMPR)
in the Federal Register (45 FR 23700).
including a request for comments or
recommended changes to our general
regulation governing grants and
cooperative agreements. We also
announced our intent to modify the
regulation to implement the
requirements in the Federal Grant and
Cooperative Agreement Act. At the
same time, we implemented Executive
Order 12044 by using plain English and
Devaluated the need for certain
procedural and regulatory requirements.
Subsequent to the ANPR. President
Reagan issued Executive Order 12231. It
requires all Federal departments and
agencies to review and reduce the
burden of their regulations.
Consequently, we eliminated most EPA
internal operating procedures and most
of the detailed procedures that
explained how recipients of EPA
assistance comply with specific
requirements. This final rule does not
repeat or summarize requirements
contained in other EPA regulations: it
limply references them. It includes only
Items mandated by law, those required
by OMB Circulars, and certain
additional minimum requirements that
EPA considers necessary for sound and
effective financial assistance
management.
Pub. L. 95-224. the Federal Grant and
Cooperative Agreement Act of 1977, 41
U.S.C. 501 et seq.. and OMB's study and
implementing guidance stress the need
for providing uniform and consistent
requirements for all assistance
programs. A fundamental element of
uniform and consistent requirements is
clear language and word usage.
Therefore, throughout this rule, we use
the terminology introduced in the
Federal Grant and Cooperative
Agreement Act: "assistance agreement"
is substituted for "grant." and
"recipient" Is substituted Tor "grantee."
This rule incorporates provisions of
OMB Circulars A-102 and A-110. which
OMB intends to revise. OMB's review
may result in major changes to the
Circulars and require substantial
changes to this rule.
The following table shows the
relationship between the former Part 30
and this revised Part 30.
x 100
x 101
30104
30110
M1IJ
»I20
3BIJS
30130
30135
30135-1
30'35-J
X1J5-3
X 133-4
30134-J
OUion.
Gram rtorrmaon.
Bung*..
30100.
30.101.
30.100.
30.200
30-200
30.139-6
30133-7
30.133-4)
30IJS-0
30.131-10
30.133-11
30.133-1
X.I IS-1
30.133-1
30.135-1
30133-1
30.135-1
30135-1
30.135-1
.X.I 35-20
30135-21
30.113-22
Etgtw
Oran
Oxnl vpromg aitt*l.
Gnra rwi
Gram*
OeMM.
392QO
OUMMO.
302OO.
OeMttd.
30200.
OOTtM.
i X200.
.....I 30-200
J 30200.
30200
OMMd.
X200
30700
30.203
»310
30.215
30.220
30-223
30.273-1
».223-I
».223-3
3029-4
X.230
30-733
»243
«rx3oo«lcr
Row ol EPA
ROM ol 9m amM-.
OMOxtonOarvKi.
CnMm lor i
ADoMMty o< coin
Otwxl
OitcJOBOT ol ntormarjon [ 30 304
f'tua and om« unMwfd or : xoio.
OMttd.
XI00.
X309
30300.
X200.
X200.
30300
X303
X303-I
X303-2
XJ06-3
30303-1
WJOS-5
MJO&-4
30JOV7
30303-1
30310
»-313
30J13-1
30-31 i-J
MJ15-3
30.313-4
30320
30-3«
A~9S proc«ou«t
So4DAc no at c*4nno> ! 0«*u
-------
Federal Register / Vol.'48. No. 191 / Friday. September 30. 1983 / Rules and Regulations 45057
X40t
X 406-1
X40S-I
X<
X 405-4
X4OS-11
JO 405-12
X410
X.4IO-I
X410-J
x.4to-a
X 410-4
X410-1
X41J
X414-I
X415-J
X.4IS-3
X 415-4
X430
X4JO-I
X420-)
X4JO->
X.490-1
X4JO-9
xooo
X 9000J
Dwnonmaon Olio tnt
to.
Ftoad
i DM md Copy-
*«e C
Re«poa<« to Comment!
In response ID our request for
comments on the proposed rule
published in the Federal Register (47 FR
2B564) on June 18. 1982. we received 19
letter* and 2 telephone calls.
Format
This regulation uses a question/
answer format designed to make it more
readable and understandable and to
lead a new applicant through the entire
assistance process. In the preamble of
the proposed rule, we requested
comments on the readability of the rule.
All who responded to the question
believed the new format assisted them
and was preferable to the previous
regulation.
Definition*
Several commenters addressed the
proposed definitions; the major
comments are noted below.
"Allowable costs": One commenter
was concerned that the proposed
definition excluded costs incurred while
performing task* under a formal
amendment That person suggested that
the phrase "and within the scope of
work approved by the assistance
agreement or formal amendment" be
added to the definition. When a formal
amendment is executed, it becomes part
of the assistance agreement. Therefore.
no change is necessary.
"Cooperative agreement and grant
agreement": Another commenter wanted
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45058
Federal Reyater / Vol. 48. No. 191 /Friday. September 30. 1983 /Rules and Regulations
the regulation to specify which programs
•ward grant agreements and which
award cooperative agreements. On
October 30.1979. EPA published (44 FR
02331) EPA Order 1000.19 which
"*"'•'"• that information. We agree that
Part 30 should contain that Information
and we have added it to the chart of
EPA assistance programs in Appendix
A.
"Program income": The definition
which we proposed included income
received from the sale of unneeded
pro petty and feet received on royalties.
A commenter pointed out that this
conflicted with OMB Circular A-102,
Attachment E. Therefore, we modified
the definition by eliminating the
reference to unneeded property and
made it clear thai fees received on
royalties are not program income unless
the asaistanca agreement states that
they will be. Unneeded property is
handled under the property disposals
requirements in { 30.532.
"Unsolicited proposal": A commenter
Indicated that, as proposed, this
definition was inconsistent with
} 3O302(c) (1 30.302(b) in the final rule)
which requires all applicants to
complete a standard application before
.receiving an award. In the final rule, we
have deleted the phrase "unsolicited -
proposals need not be submitted on an
EPA standard application form" from
the definition. An unsolicited proposal is
a written request for review of a
proposed project. EPA will review an
unsolicited proposal in terms of EPA's
needa and will determine whether the
award should be either a contract or an
assistance agreement. Before EPA will
award an assistance agreement under
this Part you must submit a standard
application for the proposal.
Application Process
On July 14.1982. President Reagan
issued Executive Order 12372. That
order directed the Director of the Office
of Management and Budget (OMB) to
revoke the intergovernmental review
system governed by OMB Circular A-95
and to develop a new process and
regulation to allow States to establish
their own processes for State and local
elected officials to review and
coordinate proposed Federal financial
assistance. Under the new system, a
Slate may choose whether to have a
consultation process and what Federal
programs to cover with the process.
However, the Order directs Federal
agencies to operate under the existing
A-85 procedure until September 30.
1983. EPA's new regulation. 40 CFR Part
29 (48 FR 29288. June 24. 1983)
implements the new process and will be
effective for assistance awards made
after September 30. 1983. In this final
rule we have deleted all references to
OMB Circular A-9S. However, the A-95
requirements remain in effect for
assistance agreements awarded before
October 1. 1983. The A-95 requirements
are found in 40 CFR Part 30. as revised
through July 1.1982. (55 30.305 through
30.305-8).
Section 30.305 requires recipients to
sign and return EPA assistance
agreements within three weeks of
receiving them from EPA. One
commenter thought the requirement to
return the signed agreement was
unnecessary paperwork which caused
delays and suggested that the recipient's
application should be sufficient to
demonstrate their intent to accept an
award. We believe the recipient's
signed, formal and timely acceptance of
an award is necessary to assure that
money is not tied up unduly where
recipients decide not to proceed with a
project. Also, the requirement reduces
the chance for misunderstandings
because the recipient acknowledges a ad
accepts all special conditions.
Section 30.300(d) permits EPA to
reimburse recipients for allowable costs
incurred between the end of a budget
period and date of award Tor the next
budget period. A commenter identified
an inconsistency between this section
and 5 35.140(b) of our proposed Part 35,
Subpart A. "State and Local Financial
Assistance for Continuing
Environmental Programs" regulation (47
FR 25912. (one 15, 1982|. While proposed
Part 30 did not address submission of an
application, the final Part 35. Subpart A.
$'35.141 (47 FR 44948. October 12. 1982)
requires that in order to be reimbursed
for prior incurred cost, the applicant
must submit a continuation application
before the expiration of the prior budget
period. We think this is necessary for
good program management and have
included it in this final rule.
Section 30.307 requires recipients to
contribute at least five percent of total
allowable project cost for each budget
period. One commenter objected to the
requirement, calling it burdensome and
unnecessary. We disagree. The
Department of Housing and Urban
Development Independent Agencies
Appropriation Act (Pub. L. 97-272).
which governs EPA. requires recipients
of research assistance for proposals not
specifically solicited by EPA to cost
share. Many EPA recipients fit this
category. The extent of cost sharing EPA
requires will be at least five percent, but
will reflect the mutuality of interest of
the recipient and EPA in the project. We
do not believe the cost sharing
requirement prevents institutions from
participating in our programs.
Payment
Section 30.400 describes three .
alternative methods EPA may use lo pay
recipients. One commenter was
concerned lhat EPA was limiting
advance payments to the initial request
with reimbursement thereafter. This was
not our intent, so we have clarified that
provision. When a recipient submits a
"Request for Advance or
Reimbursement" (SF-270). it indicates
the amount of its expenditures to date
and its cash needs for the coming
period. EPA's advance payment will be
sufficient to meet those future needs.
provided the request is reasonable.
Section 30.405 prohibits assigning
payment to anyone other than Ihe
recipient. A commenter pointed out that
this conflicts with 5 35.2025(b)(2) of
EPA's Grants for Construction of
Treatment Works regulation which
permits States to assign their payments
for advances of allowance to small
communities. We have revised this final
rule to reflect this exception.
Section 30.410 describes the coat
principles applicable to different •
categories of recipients. A commentrr
asked which ones apply to
"subrecipienls" or "subcontractors."
Regardless of whether the organization
is the recipient of the award or
performing services for the recipient, the
nature of the organization is the sole
criterion for determining applicable cost
principles. For example. State
governments must comply with OMB
Circular A-87; educational institutions
must comply with OMB Circulars A-21
and A-88. We have clarified this point.
Section 30.412 defines direct and
indirect costs. One commenter believed
our proposed definitions were
inadequate and inconsistent with OMB's
definitions. We accepted this suggestion
to rely on the OMB's definitions.
Assistance Management
Section 30.501 requires recipients of
construction grants to retain records for
three years fr~>m the approval date of
EPA's final payment. A commenter was
concerned about the effect of this
requirement on step 1 or step 2
wastewater treatment construction
grants since audits are generally
performed after the completion of the
step 3 grant. We developed this final
rule in conjunction with the new
construction grant regulation. Under that
regulation and in accordance with Pub.
L 97-117, EPA no longer awards step 1
or step 2 construction grants. Step 1 or
Step 2 grants awarded before the
effective date of this regulation are
subject to the previous Part 30.
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Federal' Register / Vol. 48. No. 191 / Friday. September 30. 1983 / Rules and Regulations 45059
Section 30.502 establishes EPA's right
of access to the recipient's and
contractor's project records. As
proposed, this provision did not include
delegated States under (he wastewater
treatment construction grants program.
We have revised this rule to include
delegated Stares.
Section 30.505(bJ requires recipients to
submit a financial status report (FSR)
within 90 days after the end of each
budget period. Several conwnenters
indicated that the FSR is seldom final
because it often includes unliquidated
obligations. Since a final FSR must show
that all obligation* are liquidated, we
clarified the final rule to state that a FSR
it required within 90 days after (he end
of each budget period and a final FSR is
required immediately after ail
obligations are liquidated. We added a
provision to allow the Award Official to
disallow unliquidated obligations if they
are not expended within a reasonable
time after the 90 day period.
Section 30.505(d) requires recipients to ~
submit an annual inventory of all
Federally owned property used on the
project. Several cormnenters objected
that this requirement exceeds the
requirements for property management
in OMB Circular A-102. This section
applies only to property owned by a
Federal agency, and such reports are,
required by the Circular and the lease
agreement*. Title (o property which
recipient* purchase with assistance
funds ve'sts in the recipient and ii
governed by 9 30.530.
Section 30.518 requires that recipients
of EPA assistance comply with JJPA
Order 2200.4 {December Z& 1981) which
establishes « peer and admiauUratrve
review process for scientific.
informational and educational
documents attributable to EPA. Tbe
Agency peer and administrative review
gives EPA the opportunity to evaluate •
document far scientific and
informational credibility and to
determine an estimated coat for its
production and distribution.
Numerous commenters expressed
concern that the Agency review
requirements violate the principle of
academic freedom and would preclude
their universities from accepting
research award*. EPA now reoojpuxet
that the proposed regulation did not
adequately clarify the inteat of tbe
Agency Order. Our intent i* not to
become substantially involved in the
development of a report nor It it to
mold the Gnal conclusion* to fit cur
policies. Rather, the sole inteat ol the
Order is to insure jhe high quality.
completeness, and accuracy of
document* EPA .publishes.
Several commenters requested the
option to publish research results in
their own monographs or laboratory
research aeries or other non-refereed
journals before submission of the report
to EPA. Under EPA's peer and
administrative review process. EPA
must decide whether to publish a report
as to EPA docuraenl or to allow
independent publication of the report.
The only exception EPA can make is
independent publication in a refereed
journal because the journal's peer
review process replaces an EPA peer
review. If EPA decides not to release the
report to the public as an EPA
publication, the recipient may
independently publish the report with
the appropriate disclaimer.
Other cooimenlers stated that the
Agency's peer and administrative
review conflicts with the Federal Grant
and Cooperative Agreement Act of 1977,
because it represents substantial
Federal involvement in the development
and delivery of technical reports under-
research grants. EPA disagrees. The
peer review process takes place at the
conclusion of a project, not while it is
underway. EPA has the right to review
and evaluate research results and to
make suggestions which EPA feels
would enhance the credibility of the
report. Recipients do not have to
incorporate these suggestions.
Finally, other commenters were
concerned that their final reports would
not be accepted or assistance
agreements closed out until EPA peer
reviewers determined their reports were
acceptable. Ajrain, the purpose of the
Order is to yiuleit ihe technical and
scientific quality of public materials
published by EPA. As soon as a decision
is reached as 1o whether the report will
be published us an EPA report. Ihe
assistance agreements may be closed
out. Appropriate time will be included in
schedules for future grant and
cooperative agreements to permit the -
conduct of review within the project
period,
(Recipients should be aware that EPA
consider* printing by the National.
Technical Informatics Service to be a
cost-effective method of publishing EPA
documents.)
'Section 30330 governs recipients'
purchase of property. Severn]
commenters arguad that some
provisions of this section exceed the
requirement* in OMB Circular A-110. In
response we revised } 30.530 to be
consistent with A-110. In accordance
with Section 7(b§ «f Pub. L. BS-,224 (41
U.S.C. 506}. generally EPA will Dot
restrict the u*e or disposition of
personal property purchased by non-
profit institutions of higher education, or
by non-profit organizations whose
primary purpose is the conduct of
scientific research, if the properly is for
the conduct of basic or applied research.
However, consistent with A-110. EPA
reserves the nght to transfer the title to
non-expendable personal property with
a unit acquisition cost of $1.000 or more
to the Federal Government or a third
party by establishing that nght in the
assistance agreement or otherwise
establishing that right in writing.
Other commenters questioned the
need for Ihe award official's approval of
purchases of property or equipment
costing SlO.OOO or more! as required in
i 30.530(a). We believe that requirement
is needed to assure that property or
equipment purchased with EPA
assistance is both necessary for the
project and not available from other
sources. To avoid delays, award
officials may approve equipment
purchases at the time of the award.
provided the items and estimated costs
are specifically identified in Ihe
assistance agreement.
Section 30.531 establishes property
management standards for non-
expendable personal property. These
standards apply to all organizations
, governed by OMB Circular A-102. In the
final rule, we made it clear that they do
not apply to certain organizations
governed by OMB Circular A-110 unless
EPA reserves Ihe right to transfer such
property in the assistance agreement.
Section 30.538 prohibits recipients
from using excess Government property.
One commenter recommended that EPA
eliminate this section since be knew of
no such statutory prohibition. While
there is no statutory prohibition, Section
1 of Pub. L 94-519 generally requires
Federal agencies to pay the United
States Treasury 25% of the original
acquisition cast of excess Government
• property whenever soch property is
trans/erred to an eligible recipient.
Because of the cast to EPA of complying
with the 25X payment requirement, it is
EPA'j pohcy to prohibit EPA recipients
from using exceas Government property.
Section 3O.S40 describes audit
requnemenls. Several commented
reqseatea1 that vie distinguish between
audit requirements for A-102
uigsnizaUons and A-110 organizations.
The final rule include* separate
provMroni for tfaesa two groups. A-102
organizations BUS* eocapl/with
ArtacJunent P, wtuch require* a recipient
to conduct an organization-wide audit
once every two year* to evaluate the
fiscal isUepirjrof its financial system
and to'detsrsnina fes compliance with
the tensB«na1 oaodibons of the
63
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45060 Federal Register / Vol. 48, No. 191 / Friday, September 30. 1983 / Rules and Regulations
assistance agreement. A-110
organizations must comply with the
provisions of OMB Circular A-88, which
requires all Federal agencies to rely on
audits performed by agencies assigned
audit cognizance Tor the recipient.
Assistance Agreement Changes
Sections 30.700and30.705 identify the
types of changes which require prior
EPA approval by formal amendment
and those which recipients may make
without prior EPA approval. Former Part
30 required recipients to get prior EPA
approval on budget changes in excess of
.10% or $10.000 of the project budget. The
proposed rule did not include these
dollar amount restrictions. Several
commenters questioned the wisdom of
this deletion. We believe the former Part
30 requirements were too stringent and
did not provide recipients with sufficient
flexibility to manage their projects.
Further, the small benefit to EPA
provided by this requirement does not
justify the coats of processing change
requests and related project delays.
. Interest Charges
Section 30.802faJ io the proposed rule
stated that "final settlement is not
complete until all claims, audits.
appeals, and litigations are resolved." If
the recipient owes EPA funds as a result
• of any of these actions, it must
reimburse the Federal government that
amount before the project is settled. We
have restructured this section for clarity.
§ 30.802(b) requires the recipient to pay
interest on any amount owed EPA if the
recipient fails to pay within 30 days of
the date of the award official's
determination (see Subpart L).
One commenter questioned EPA's
authority to charge interest on overdue
debts. Since April 30.1979, EPA has had
the responsibility to assess interest on
all debts (Federal Claims Collection
Standards. •! CFR 102.12). In addition.
provisions in two EPA appropriations
acts (Pub. L 96-520. } 416.1980. and
Pub. U 90-304. section 300, 1980) and
Office of Management and Budget
Circular A-SO require EPA to charge
interest on outstanding debts. The
Agency implemented this requirement
administratively in October 1961. Thus.
rather than exceeding authority. EPA
actually has been slow in carrying out
its responsibility.
We have revised 9 30.802, however, to
comply with the Federal Debt Collection
Act of 1982 (October 25.1982) which
amended the Federal Claims Collection
Act of 1966. The 1982 Act directs Federal
agencies to assess interest, penalties.
and handling charges on all debts.
except for the debts of State and local
governments. We will continue to
charge State and local governments
Interest on overdue debts. The General
Accounting Office (CAO) in an August
23.1983, Comptroller General Decision
(B-212222, "Debt Collection
Administrative Offset and Interest
against State and local governments"),
stated that although the Debt Collection
Act does not apply I" Sta'e and local
governments, the Act does not prohibit
Federal agencies from collecting interest
charges on the overdue debts of State
and local governments. The GAO
decision concluded that to the extent
that there is authority other than
sections 10 and 11 of the Debt Collection
Act of 1982 (whether the authority is
founded in statute or common law),
Federal agencies are authorized to use
administrative offset and to assess
interest against State and local
governments in order to collect debts
owed to the United States. The Federal
Claims Collection Standards (4 CFR
102.12) and OMB Circular A-SO allows
EPA to use administrative offset on
debts owed by State and local
governments. EPA's authority to collect
Interest on overdue debts owed by State
and local governments to the United
States is contained in the Federal
Claims Collection Standards, Treasury
Fiscal Requirements Manual 0-8000.
OMB Circular A-SO, Pub.'L 96-520. and
Pub. L 90-304. Accordingly. § 30.802(c)
exempts Slate and local governments
from penalty and handling charges, but
makes it dear that these types of
recipients will be charged interest
charges on all overdue debts.
The same commenter also argued that
'-he effect of the interest rule will be "to
chill the use of the grant appeal
process". We disagree. Once the award
official determines that funds are owed
to EPA. this is a legitimate debt, subject
to Interest charges. The interest
requirements do not restrict the use of
the appeals process.
Before the award official makes a
proposed determination, the recipient is
given an opportunity to review the
proposed findings and present any facts
in its favor to alter the decision.
Consequently, interest does not begin to
accrue until after the recipient has an
opportunity to rebut the findings.
Additionally, since interest does not
accrue until 30 days after the award
official's proposed decision, the
recipient can avoid interest altogether
by immediately paying the amount owed
in the award official's decision and then
appealing.
NoD-CompUance Actions
Section 30.900 describes the
alternative actions EPA may take when
a recipient fails to comply with the
terms and conditions of its assistance " -'
agreement. Several commenters •
questioned the use of "stop work order"
and "withholding of payment" actions
They argued that while a "stop work
order" is required by the Defense
Acquisition Regulations it is not
authorized by OMB Circulars A-102 or
A-110. We disagree. OMB Circulars A-
102. Attachment L. and A-110.
Attachment L require Federal agencies
to establish procedures to follow when
recipients fail to comply with terms and
conditions of an agreement. Both
Circulars permit Federal agencies, upon
reasonable notice to the recipient, to
suspend the award withhold further
payments or prohibit the recipient from
incurring additional costs. It is EPA
policy that full and prompt payment be
made to recipients for eligible project
costs. However, when recipients are not
complying with their assistance
agreements, EPA has the responsibility
to take corrective actions.
Appeals ~
One commenter was concerned about
the lack of access of the Audit
Resolution Board decisions. These
decisions are available upon request.
You may receive copies of decisions by
contacting: ^"S
Chairman. EPA Audit Resolution Board. Wl
M Street. SW, Washington. D.C. 20460
Section 30.1235 lists EPA decisions
that a recipient may not appeal. Several
commenters wanted to know why
"advanced wastewater treatment
decisions of the Administrator" and
"policy decisions of the EPA Audit
Resolution Board" cannot tie appealed.
They are not appealable because both
decisions are made at high
administrative levels in EPA
Headquarters. In the first case, the
decision is made by the Administrator.
and in the second case, the Audit
Resolution Board is acting under a
delegation from the Administrator. The
Audit Resolution Board consists of the
Assistant Administrator for
Administration, the Associate
Administrator for the Office of Legal
and Enforcement Counsel the Assistant
Administrator from the affected program
office and a Regional Administrator.
Financial Assistance Disputes
Procedures. Subpan L sets forth new
procedures for resolving assistance
disputes between EPA officials and
assistance recipients or applicants.
Under the existing appeal process.
disputes over final decisions In EPA
assistance programs ultimately were
resolved by the EPA Board of
Assistance Appeals (the Board) at EP/. .
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Federal Register / Vol. W. No. 191 / Friday. September 30. 1983../. Pules
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45082 Faderal Register / Vol. 48; No. 191 /Friday. September 30. 1983 / Rules and Regulations
Copy:right, Reporting and recordkeeping
requirements.
AMnUAlm.
Acting Administrator.
For the reasons set forth in the
preamble. EPA is revising 40 CFK Part
30 to read as follows:
PART 30—GENERAL REGULATION
FOR ASSISTANCE PROGRAMS
Subpart A—What l» the purpose and scope
of Ma regulation?
Sac. 30.100 What ii the purpoia of this
regulation?
Secv 30.101 What is the scope of this
regulation?
Sec 30.102 What laws authorize EPA to
issue this regulation?
Subpart B—What dermtttoni apply to Ma
remjlation?
Sec 30-200 What definitions apply to Ihii
regulation?
Subpart C How do I apply tor and recer«e
•T
Sec 30.300 What activities doea EPA fund?
Sec 30-301 To whom does EPA award
assistance?
Sac 30-302 How do I apply for aiaiitance?
Sec 30.303 What steps must I taka when
filing a standard application?
Sec 30.304 Is tha information 1 submit to
EPA confidential?
Sec 30JOS How do 1 find out if EPA
• approved or disapproved my
application?
Sec 3O308 How long will I have to
complete my project?
Sac. 30.307 How much must 1 contribute, to
tha funding of toy project?
Sec 30.308 When may I begin incurring
costs?
Sec 30300 What ia (he effect of accepting
an assistance agreement?
Subpart O—How do*» EPA pay ma?
Sec 30.4OO How does EPA make payments?
Sec 30.405 Can I assign my payments to
anyona else?
Sec 30.110 How does EPA determine
allowable costs?
Sec 30.412 How are costs categorized? -.
Subpart E—How do I manage my award?
Sec 30.500 What records must t maintain?
Sec 30.S01 How long must I keep these
records?
Sac 30-502 To whom must my contractors
and I show these records?
Sec 3O303 What type of quality assurance
practices am I required to have?
Sec 30.506 What reports must I submit?
Sec 30.510 What type of financial
management system must I maintain?
Sec 30.315 What restrictions on signs,
surveys, and questionnaires must I
observe?
Sec 30.518 What are the procedures of
publishing scientific informational and
educational documents?
Sac 30.520 When may I use my own
employees ("force account")?
Sec. 30423 How should I treat program
Income?
Sec. 30.526 How do I treat interest earned
on EPA funds?
Sec 30.530 May I purchase personal
property using EPA assistance funds?
30.531 What property management
standards must I follow for
nonexpendable personal property
purchased with sn EPA award?
30.532 How do I dispose of personal
property?
30.535 May I purchase real property with
EPA awarded funds?
30.536 How do I manage Federally-owned
property?
30.537 Are contractors required to comply
with EPA property policies?
30.538 May I use General Services
Administration (CSA) supplies and
services?
30.540 Who will audit my project?
Subpart F— What Other Federal
Requirement, Must I Comply with?
30.600 What Federal laws and policies
affect my award?
30 601 Are there restriction! on the use of '
astistance funds for advocacy purposes?
30.603 What additional Federal laws apply
to EPA aasisted construction projects?
30.610 What are my responsibilities for
preventing and detecting fraud and other
corrupt practices?
30.611 Can I hire a person or agency to
solicit EPA assistance for me?
30.812 May sn EPA employee set as my
representative?
30.613 What is EPA s policy on conflict of
interest?
30.815 May I employ a former EPA
employee and still receive assistance?
Subpart Q—Can an Assistance Agreement
be Changed?
30.700 What changes to my sssislance
agreement require a formal amendment?
30.705 What changes can I make to my
assistance agreement without a formal
amendment?
30.710 Can 1 terminate a part or all of my
assistance agreement?
Subpart H—How do I Cloee out my Project?
30.800 What records and reports must I
keep after ( complete my project?
30.802 Under what conditions will I owe
money to EPAT
Subpart»—What Uaaauraa may EPA Taka
for Mofvcompitance?
30.900 What are the sanctions for non-
compliance?
30,901 What are the consequences of a stop-
work order?
30.902 What are the consequences of
withholding payments?
30.903 What are the consequences of
termination for cause?
30.904 What are the consequences of
annulment?
30.905 May I appeal a termination, or
annulment?
30.908 What are tha consequences of
suspension or debarmant?
Subpart J—Can I gat an Exception
("OevtaUon") From Theee Regulattona?
30.1001 Will EPA grant any exceptions to
these regulations?
30.1002 Who may request a deviation? :
30.1003 What information must I include in
a deviation request?
30.1004 Who approves or disapproves a
deviation request?
30.1005 May I appeal a deviation decision?
Subpart K—What Pottclea Appry to Patanta,
Data, and Copynghta?
30.1100 What assistance agreements are
subject to EPA patent rules?
30.1101 What Federal patent laws or
policies govern my assistance
agreement?
301102 What sre my invention rights and
my reporting requirements if my award ia
other than an award under section 6914
of RCRA?
30.1103 What are my invention rights snd
obligations if I am a profitmaking firm
wilh an award under section 6914 of
RCRA?
30.1104 Can I get a waiver from section
8981(c|of RCRA? •*
30.1108 Do the patent rules apply to "
subagreements?
30.1106 Does EPA require any type of
licensing of background patents that I
own?
30.1112 Are there any other pilent clauses
or conditions lhat apply lo ivy award?
JO 1130 What rights in data anil copyrights
does EPA acquire?
Subpart L—How are Disputes Between EPA
QrflcialB and me Received?
30.1200 What happens if an EPA official and
I disagree about an assistance agreement
requirement?
30.1205 If I file a request for review, wilh
whom must I file?
30.1210 What must I include in my request
for review or reconsideration?
30.1215 What are my rights after I file a
request for review or reconsiderstion?
30.1220 If the Assistant Administrslor
confirms the proposed decision of the
Headquarters disputes decision official.
may I seek further administrative
review?
30.1225 If the Regional Administrator
confirms the proposed decision of the
Regional disputes decision official, may
seek further administrative review at
EPA Headquarters?
30.1230—Will I be charged Interest if I owe
money to EPA?
30.1235 Are there any EPA decisions which
may not be reviewed under this subpart?
Appendix A—EPA Programs.
Appondix B—Patents and Copyrights
Clauses.
Appendix C—Rights in Data and Copyrights.
Appendix D—Part 30 Reporting
Requirements.
Authority: 33 U.S.C. 1251 et seq.: 42 U S.C.
7401 at seq.: 42 U.S.C. 6901 et §eq_ 7 U.S.C
300f et seq.; 7 U.S.C. 136 et seq.: IS U.S.C
2801 at seq.: 42 U.S.C 9601 at seq. .
66
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Federal Register / Vol. 48. No. 191 / Friday. September 30, 1983 /..Rules and Regulation ' 45063
Subpart A— What It tr* Purpoaa and
Scop* of Thl» Regulation?
} 30.100 What to ttw purpOM of thto
(a) The U.S. Environmental Protection
Agency (EPA) is responsible for
protecting and enhancing the quality of
the environment. To achieve these
objectives. EPA may award assistance
in the form of grants, cooperative
agreements, or fellowships to support:
(1) State and local pollution control
programs; (2) research, demonstration.
or training projects: and (3) other
projects that advance EPA's mission.
This regulation tells how to apply for
and manage an EPA project, describes
EPA involvement in Ihe process, and
identifies recipients' responsibilities.
Other EPA assistance regulations
supplement these. They are found in 40
CFR Part 32 (Debarment). Part 33
(Procurement Under Assistance
Agreements). Part 35 (State and Local
Assistance). Part 40 (Research and
Demonstration). Part 45 (Training) and
Part 46 (Fellowships).
(c) This regulation incorporates the
requirements of Office of Management
and Budget (OMB) Circulars and EPA
Orders.
(d) Recipients must provide the
reporting information required in this
part to be eligible for EPA assistance
awards.
(Noll — The OMB clearances required by
the Paperwork Reduction Act are identified
in Appendix D to thii part.)
] 30.101 What !• th» (cop* ol tr.lt
regulation?
This regulation covers financial
assistance awards made as grants or
cooperative agreements under
requirements of the Federal Grnnt and
Cooperative Agreement Act (P.L. 95-
224). It does not cover direct EPA
contracts under which EPA acquires
property or services for its use.
{30.102 What laws autnort:* EPA to toatx
Reorganization Plan Number 3 of 1970
and the following statutes authorize the
Administrator of EPA to issue this
regulation.
(a) The Clean Water Act. as amended
(33 U.S.C 1251 et seq.);
(b) The Clean Air Act. as amended (42
U.S.C 7401 et seq.):
(c) The Solid Waste Disposal Act, as
amended (42 U.S.C. 6901 et seq.):
(d) The Safe Drinking Water Act. es
amended (42 U.S.C 300f et seq.):
(e) The Federal Insecticide. Fungicide,
and Rodenticidd Act. as amended (7
U.S.C 136 et seq.):
(f) The Toxic Substances Control Act
(15 U.S.C. 2001 et i>eq.): and
|g) The.Comprehensive Environmental
Response. Compensation and Liability
Act'of I960 (42 U.S.C. 9601 et seq.).
SUBPART B—WHAT DEFINITIONS
APPLY TO THIS REGULATION?
} 30.200 What definitions apply to thla
regulation?
"Allowable costs. "Those project
ccsto that are: eligible, reasonable.
necessary, and allocable to the project
permitted by the appropriate Federal
cost principles, and approved by EPA in
the assistance agreement
"Applicant." Any entity that files an
application or unsolicited proposal for
EPA financial assistance under this
subchapter.
"Assistance agreement. "The legal
instrument EPA uses to transfer money.
property, services, or anything of value
to a recipient to accomplish a public
purpose. It is either a grant or a
cooperative agreement and will specify:
budget and project periods: the Federal
share of eligible project coats; a
description of the work to be
accomplished: and any special
conditions.
"A ward official. "The EPA official ,
with the authority to execute assistance
agreements and to take other actions
authorized by this subchapter and by
ETA Orders.
"Budget period." The length of time
EPA specifies in an assistance
agreement during which the recipient
may expend or obligate Federal funds.
"Consolidated assistance." An
assistance agreement awarded under
more than one EPA program authority or
funded together with one or more other
Federal agencies. Applicants for
consolidated assistance submit only one
application.
"Continuation award." An assistants
agreement after the initial award, for a
project which has more than one budget
period in its approved project period
(see § 30.306).
'Contractor." Any party to whom a
recipient awards a subagrcement.
"Cooperative agreement." An
assistance agreement In which
substantial EPA involvement is
anticipated during the performance of
the project (does not include
fellowships).
"Cost sharing." The portion of
allowable project costs that a recipient
contributes toward completing its
project (i.e.. non-Federal share, matching
share).
"Environmentally related
measurements." Any data collection
activity or investigation involving the
assessment of chemical, physical, or •
biological factors in the environment
which affect human health or the quality
of life. The following are examples of
environmentally related measurements:
(a) A determination of pollutant
concentrations from sources or in the
ambient environment, including studies
of pollutant transport and fate: (b) A
determination of the effects of pollutants
on human health and on the
environment: (c) A determination of the
risk/benefit of pollutant* in Ihe
enviroment; (d) A determination of the
quality of environmental data used in
economic studies: and (e) A
determination of the environmental
impact of cultural and natural processes.
"Expendable persona! property." All
tangible personal property other than
nonexpendable personal property.
"Force account work." The use of the
recipient's own employees or equipment
for construction, construction-related
activities (including A 4 E services), or
for repair or improvement to a facility.
"Foreign grcnts." An EPA award of
assistance when all or part of the
project is performed in a foreign country
by (a) a U.S. recipient, (b) a foreign
recipient, or (c) an international
organization.
"Forma/ amendment." A written
modification of an assistance agreement
signed by both the authorized
representative of the recipient and the
award official.
"Grant agreement." An assistance
agreement that does not;substantially
involve EPA in the project and where
the recipient has the authority and
capability to complete all elements of
the program (does not include
fellowships).
"In-kindcontribution* "The valun of a
non-cash contribution to meet a
recipient's cost sharing requirements.
An in-kind contribution may consist of
charges for real property and equipment
or the value of goods and services
directly benefiting the EPA funded
project.
"Nonexpendable personal property."
Personal property with a useful life of at
least two years and an acquisition coat
of $500 or more.
"Personalproperty."Property other
than real property. It may be tangible
(having piiysi<.il txistence). such as
equipment and supplies, or intangible
(having no physical existence), such as
patents, inventions, and copyrights.
"Program income." Cross income the
recipient earns during its project period
from charges for the project. This may
include income from service fees, sale of
commodities, trade-in allowances; or
usage or rental fees. Fees from royaliUei
6*~i
f
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45064 Federal RagiaUr / Vol. 46. No. 191 /Friday. September 30. 1983 /Rules and Regulations
are program income only if the
asBitlance agreement so states. Revenue
generated under the governing powers
of a State or local government which
could have been generated without an
award is not considered program
Income. Such revenues include fines or
penalties levied under judicial or pecal
power and used as a means to ealone
laws. (Revenue from wastewater
treatment construction grant projects
under Title II of the Clean Water Act as
amended, is not program income. It must
be used for operation and maintenance
costs of the.recipient's wastewater
facilities.)
"Pro/ecL"Tht activities or tasks EPA
identifies in the assistance agreement
"Project costs." All costs the recipient
incurs in carrying out the project. EPA
considers all aHowable project coats to
Include the Federal share.
"Project officer." The EPA official
designated in the assistance agreement
as EPA's program contact with the
recipient Project officers are
responsible for monitoring the project
"Project period." The length of time
EPA specifies in the assistance
agreement for completion of all project
work. It may be composed of more than
one budget period.
"Quality assurance narrative
statement." A description of how
precision, accuracy; representativeness,
completeness, and compatibility will be
assessed, and which is sufficiently
detailed to allow an unambiguous
determination of the quality assurance
practices to be followed throughout a
research project
"Quality assurance program plan." A
formal document which describes an
orderly assembly of management
policies, objectives, principle*,
organizational responsibilities, and
procedures by which an agency or
laboratory specifies how it intends to:
(a) Produce data of documented
quality, and
(b) Provide for the preparation o/
quality assurance project plans •' j
standard operating procedures.
"Quality atsurance project plan." An
organization's written procedures which
delineate how it produces quality data
for a specific project or measurement
method.
"Realproperty." Land. Including land
Improvements, and structures and
appurtenance*, excluding movable
machinery and equipment.
"Recipient." Any entity which has
been awarded and accepted an EPA
assistance agreement.
"Standard operating procedure." A
document which describes in detail an
operation, analysis, or action which is
commonly accepted as the preferred
method for performing certain routine or
repetitive tasks.
"Suoagreemeat." A written agreement
between an EPA recipient and another
party (other than another pubtic agency)
and any lower tier agreement for
services, supplies, or construction
necessary to complete the project.
Subagreements include contracts and
subcontracts for personal and
professional services, agreements with
consultants, and purchase orders.
"Violating facility." Any facility that
is owned, leased, or supervised by an
applicant recipient, contractor, or
subcontractor that EPA lists under 40
CFR Part IS as not in compliance with
Federal. State, or local requirements
under the (lean Air Act or Clean Water
Act. A facility includes any building.
plant installation, structure, nine.
vessel, or ether floating craft
"Unsolicitedproposal." An informal
written offer to perform EPA funded •
work for which EPA cur' not publish a
solicitation.
Subpart C—How Do I Apply For and
R«c«•• EPA award
(a) EPA awards assistance only to
applicants which are eligible under
applicable statutes and regulations and
which have the ability to meet the
following criteria:
(1) Finandal resources, technical
qualifications, experience, organization.
and facilities adequate to carry out the
project or a demonstrated ability'to
obtain these:
(2) Resources to meet the project
completion schedule contained in the
assistance agreement:
(3) A satisfactory performance record
for completion of projects and
subagreements;
(4) Accounting and auditing
procedures adequate to control property,
funds, and cjsets, as required in Subpart
E of this part: ^
(S) Procurement standards that
comply with Part 33 of this Subchapler
(fl) Property management systems for
acquiring, maintaining, safeguarding.
and disposing of properly, as required in
Subpart E of this part: and
(7) Demonstrated compliance or
willingness to comply with the civil
rights, equal employment opportunity,
labor law, and other statutory
requirements under Subpart F of this
part :
(b) EPA considers your submission of
an assistance application as your
assurance that you can and will meet
these standards. EPA may conduct a
preaward audit or other review to
determine your capabilities.
(c) EPA must notify ycra in writing if it
finds you unable to meet these
standards. The written notice will state
the reasons for the finding. You may
appeal EPA's findings under the v
disputes procedures in Subpart L.:
(d) Individuals, agencies, or
organizations voluntarily excluded.
suspended, or debarred under 40 CFR
Part 32 are ineligible to receive
assistance.
9 30.302 How do I apoty lor aaalitancw?
(a) You must submit a standard
application to apply for EPA assistance.
(b) Before you file an application to
perform unsolicited work, you may
submit an unsolicited proposal. EPA will
apprise you of your proposal's potential
for funding.
(c) You can get program information
and an application kit with instructions
from the EPA grants office which is
responsible for administering that
program. Regional EPA grants offices
provide and review applications and
award assistance for State and local
pollution control projects. State water
pollution control agencies provide and
review applications for grants for the
construction of wastewater treatment
facilities. EPA Headquarters provides
and reviews applications for and
awards research, demonstration.
fellowships, and training assistance.
(d)(l) For assistance agreements
awarded for Fiscal Year 1964. you must
develop and implement a quality
assurance program acceptable to the
award official if yoor proposal involves
any environmental related
measurements or data generation.
Except as noted in paragraphs {dl (2)
and (3) of this section, your application
for financial assistance must include a
quality assurance plan which meets th»
requirements in | 30.SQ&. If you already
have an EPA approved quality
68
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Federal Register / Vol. 46. No. 191 / Friday. September 30. 1983 / Rules and Regulations 4S08S
assurance plan, you need only reference
that plan in your application, provided
the plan covers (he project In your
application.
(2) The recipient of an assistance
award under the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980.
must submit a schedule for developing a
quality assurance project plan within 30
days of receiving an assistance award.
Recipients may not begin Held or
laboratory work until the award official
approves the recipient's assurance
project plan.
(3) The recipient of a wastewater
treatment construction grant awarded
under Title U of the Clean Water Act
must comply with { 30.503 only if a
grant condition specifically requires the
recipient to gather environmental
related data. If a quality assurance
program is required, recipients must
submit a schedule for developing a
quality assurance project plan within 30
days of assistance award. Recipients
must not begin field or laboratory work
until the award official approves the
recipient's quality assurance project
plan.
1 30.303 What stops must I take when
(•rig a standard application?
(a) Before you file an application, you
must complete the forms according to
the instructions. At least one copy of the
completed application must have an
original signature of the person
authorized to obligate you or your
organization to the terms and conditions
of EPA's regulations and assistance
. agreement
(b) You must:
(1) Comply with your State's
Intergovernmental review process, if it
established one under Executive Order
12372. See 40 CFR Part 29 (48 FR 29288,
June 24. 1983).
(2) Comply with the areawide review
requirements of Section 204 of the
Demonstration Cities and Metropolitan
Development Act of 1968, as amended
(42 U.S.C 3334) if your project will be
located in a metropolitan area. EPA
programs that are subject to areawide
review are listed in 48 FR 29304, June 24.
1983. and marked with an asterisk (*).
la the Information I submit to EPA
ooinlotnttefT
(a) Generally, the information Is not
confidential. When EPA receives your
assistance application or unsolicited
proposal the information you submit
becomes part of the Agency's records.
As such. It is subject to EPA's disclosure
of information policy (40 CFR Part 2)
which is based on the provisions of the
Freedom of Information Act (5 U.S.C.
552) and on the provision for patents
and rights In data and copyrights under
Subpart K of this part
(b) If you submit data, documents, or
parts of documents which you consider
to be confidential, you should clearly
Identify them with the words "trade
secret." "proprietary." or "business
confidential." For further instructions on
assertion of confidentiality claims, see
40 CFR Part 2. Subpart B.
J 30J05 How do I nod out It EPA
appiooxi or disapproved my application?
(a) If EPA approves your application.
the award official will prepare and sign
an assistance agreement and send-it to
• you for signature. Your authorized
representative must either sign and
return the agreement to EPA within
three calendar weeks after you receive
it or request EPA to extend the time for
acceptance. If you do not sign or request
an extension within the three week
period, the assistance agreement is null
and void.
fb) If EPA disapproves your
application. It will promptly notify yen1
in writing. You may appeal EPA's
disapproval under Subpart L.
(c) Sometimes. EPA will defer your
application. You will be notified in
writing of this decision.
J 30.306. How long wU I have to complete
(a) Your assistance agreement will
state the length of your approved budget
period(s) and project period. Subject to
statutory provisions, your approved
project period may include more than
one budget period. In this case, you must
submit a continuation application to
EPA to request funding for each budget
period after the Initial one. EPA make
continuation awards subject to
availability of funds and Agency
priorities. (Assistance awards under 40
CFR Part 35. Subpart A. do not have
project periods, but recipients of such
award may receive continuation
awards.)
(b) The continuation application must
Include:
(1) A detailed progress report for the
current budget period:
(2) A preliminary financial statement
for the current budget period that
includes estimate* of the amount you
expect to spend by the end of the
current budget period and the amount of
any uncommitted funds which you
propose to carry over beyond the term
of the current budget period;
(3) A budget for the new budget
period;
(4) A detailed work plan revised to
account for your actual
accomplishments during the current
budget period;
(5) An annual invention report: and
(6) Any other reports that the
assistance agreement may require.
(c) If approved by the award official.
you may carry over unexpended prior
year funds: (1) In lieu of new funds: (2)
to complete work started in prior years:
or (3) to supplement the new award. You
must meet all program and cost sharing
requirements in each budget period to
carry over funds.
(d) If EPA executes a continuation
agreement EPA will reimburse you for
allowable costs you Incur between tha
. end of a budget period and date of
award for the next budget period
provided you submit a continuation
application before the expiration of the
prior budget period.
{ 30J07 How much muet I contrlbut* to
tf» funding o< my protect?
(a) The amount of cost sharing you
must contribute depends upon the
statutory and regulatory cost sharing
provisions that apply to your specific
assistance project (see 40 CFR Parts 35
and 40). You must contribute at least a 5
percent share of the total allowable
project costs for each budget period
unless:
<-• (1) A lesser amount is specified in the
respective statute or regulation
applicable to your project or
(2) The assistance agreement is for a
remedial planning action under the
Comprehensive Environmental
Response. Compensation and Liability
Act of 1980.
(b) You may satisfy the requirement
for cost sharing with cash or. when not
prohibited by statute or regulations.
with in-kind contributions.'Your
contribution may not be paid with
Federal funds or with property or
services received under another
assistance agreement unless authorized
by statute. Additionally, your
contributions must be:
(1) Negotiated before and specified In
your assistance agreement;
(2) Verifiable from your records;
(3) Used exclusively for a single
project and
(4) Properly allocable to and
allowable under the project
(c) All project expenditures by the
recipient shall be deemed to Include the
Federal share.
13030* When may I b*gto Incurring
Except as permitted In I 30 J08(d) or
other EPA regulations, the award official
and you must sign the EPA assistance
agreement before you Incur costs.
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45066 Federal Register / Vol. 48. No. 191 / Friday. September 30. 1983 / Rules and Regulations
J30JW What to trie effect of accepting «n
MaMinc* agreement?
(a) When the award official signs the
assistance agreement EPA will obligate
Tederal funds for the amount stated in
your assistance agreement for the
purposes of the award. EPA is not
obligated to provide Federal funds for
eny cc;!s incurred by you in excess of
the Federal share of your approved
budget (S«e Subpart G of this part.)
(b) The award of an assistance
agreement constitutes a public trust. By
signing and accepting an assistance
agreement you become responsible for
complying with all terms and conditions
of your assistance agreement, including
any special conditions necessary to
assure compliance with EPA policies
and objectives, this subr.hapter. and any
other applicable statute or regulation.
You must efficiently ond effectively
manage your project successfully
complete the project according to the
schedule, and meet all monitoring and
reporting requirements. You may not
delegate or transfer this responsibility.
Subpart D—How Does EPA Pay Me?
5 30.400 How do«6 EPA make payment*?
(a) EPA will promptly pay you for
allowable costs you incur in accordance
with'EPA regulations and your
assistance agreement. If at any time.
EPA determines you received payment
for unallowable cost or received an
over-payment, you are required to
reimburse EPA. (See J 30.802.)
(b) Your assistance agreement will
specify one of the following ways for
EPA to pay you. You will receive the
appropriate forms and instructions with
your assistance agreement.
(1) By letter of credit. EPA will pay
you by the letter of credit method, it you
meet the Treasury Department's criteria
contained in Treasury Circular No. 107S.
as revised You must establish a
separate bank account when payments
under a letter of credit are made on a
"check-paid" basis.
(2) By advance. If you do not qualify
for a letter of credit. EPA may pay you
by the advance payment method. You
must negotiate the amount of your initial
advance with the award official. The
negotiated amount should not exceed
the cash you will need for the first three
months of operation. You must request
the initial advance on Standard Form
270 (SF 270. "Request for Advance or
Reimbursement") which will be included
in your award package. EPA will issue a
check for the first three months or one
check each month (at EPA's option) to
pay the advance. After your initial
advance, you must submit an SF 270 at
least quarterly, but not more often than
monthly, indicating the amount of your
expenditures to dale and your request
for funds for the coming period.
(3) By reimbursement. If you do not
meet letter of credit requirements or
receive advance payments. EPA will pay
you by reimbursement. Also, EPA
generally will pay you under the
reimbursement method if you are
receiving assistance under EPA's
wastewater treatment construction
grants program (see 40 CFR Part 35.
Subpart 1). When EPA pays by this
method, you will be reimbursed for costs
which you have incurred and are
currently and legally obligated to pay.
} 30.405 Can I laalgn my payment to
anyone elM?
Except as provided foi in 40 CFR
35.2025(b|(2) of EPA's wastewuter
treatment construction grants regulation.
you cannot assign your right to receive
payments under your assistance
agreement EPA will make payments -,.
only to the payee identified in the
assistance agreement.
§ 30.410 How doe* EPA ctotermlne
allowable costa?
To be allowable, costs must meet
applicable statutory provisions and
Federal cost principles. EPA uses the
following cost principles in determining
allowable costs for all EPA assistance
agreements and eubagreements under
them, except as otherwise provided by
statute or this subchapter. Regardless of
whether the organization is the recipient
of the award or is performing services
for the recipient, the nature of the
organization is the sole criterion for
determining applicable cost principles.
(a) State and local governments must
use OMB Circular A-87 to determine
allowable costs:
(b) Educational institutions must use:
(1) OMB Circular A-21 cost principles
for research and development, training.
and other educational services under
grants, cooperative agreements, and
subagreements, and (2) OMB Circular
A-88 which provides principle* for
coordinating the establishment of
indirect cost rates and the auditing uf
grants, cooperative agreements, and
subagreements:
(c) Other nonprofit institutions must
use OMB Circular A-122;
(d) Profitmaking organizations must
use Federal procurement regulations (41
CFR Ch. 1. Subpart 1-15.2 and. if
appropriate. 1-15.4); and
(e) Hospitals must use 45 CFR Part 74.
Appendix E.
{ 30.412 How are costs categorized?
(a) Costs are categorized as being
either a direct cost if they support a
specific project only or as an indirect
cost as described in the applicable cust
principles (see 5 30.410). To receive
payment for indirect costs, you must
have negotiated an indirect cusl rate
with your cognizant Federal Agency and
your assistance agreement must provide
for the use of that rate.
(b) You may request a special Indirect
cost rate, if (1) your project is conducted
at an off-site location: or (2) your project
is a large, one-time project and its costs
would distort the normal direct coat
base used in computing the indirect cost
rate.
Subpart E—How Do I Manage My
Award?
5 30.500 What record* mini I maintain?
[a) You must maintain official records
for each assistance award you receive
and identify them with EPA assistance
identification numbers. These records
must contain the following information:
(1) Amount received and expended for
the project, including all Federal and
cost sharing funds;
(2) Program income:
(3) Total cost of the project (both
direct and indirect costs);
(4) Property purchased under the
award or used as part of your in-kind
contribution;
(5) Time records and other supporting
data: and
(0) Documentation of compliance with
applicable statutes and regulations.
(b| Your contractor must maintain
books, documents, papers, and records
pertinent to the project.
3 30.501 How long must I keep tnea*
record*?
(a) Generally you and your contractor
must keep all records for three yean
from the end of the project. Except for
real property and nonexpendable
personal property records, the beginning
date of the three year period depends on
the type of project you are conducting.
as follows:
(1) For research, demonstration, and
training programs, the submission date
of a final Financial Status Rsport (SF-
289):
(2) For State and local assistance
programs, the submission date of the
final Financial Status Report (SF-239):
or
(3) For construction awards, the
approval date of EPA's final payment
for the project
(b) You must keep your records on
real property and nonexpendable
personal property for three yaara froir
the date of final disposition. '•
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Fed«nl Register / Vol. 48, No. 191 / Friday. September 30. 1983 / Rules and Regulations 45CS7
- (c) If EPA terminates your award, you
-'must keep all records for three years
from the termination dale, except as
provided in paragraph (b) of this section.
(d) If litigation, a claim, an appeal, or
an audit is begun before the end of the
three year period, you must keep all
records until the three years have
passed or until the litigation, appeal.
claim, or audit is completed and
resolved, whichever is longer.
) 30.603 To whom must cny contractor
end I show ttwna records?
You and your contractor must allow
the project officer and any authorized
representative of EPA. including the
Office of Inspector General, the
Comptroller General of the United
States, the Department of Labor, or a
representative of delegated States under
the wastewater treatment construction
grants program, to inspect, copy, and
audit records pertinent to the project.
Access to records is not limited to the
required retention periods. You and your
contractor must allow dccess to records
at any reasonable time for as long as the
records are kept.
5 31X503 What typ« of qukllty
practice* am I required to haw?
(a) If your project involves
environmentally related measurements
or data generation, you must develop
and implement quality assurance
practices consisting of policies.
procedures, specifications, standards,
and documentation which will produce
data of quality adequate to meet project
objectives and will minimize loss of
data due to out-uf-controi conditions or
malfunctions.
(b) Your quality assurance practices
must assure the reliability of monitoring
and measurement data and integrate
quality planning, quality assessment
and quality improvement efforts.
(c) As required fn 5 36 302(d). you
must develop and implement a quality
assurance program which is acceptable
to the award official in order to receive
an EPA assistance award. All
applications for financial assistance
must Include a document as specified in
paragraphs (d). (e). or (f) of this section.
(d) If your application is for research
financial assistance it must include a
quality assurance narrative statement
which either addresses the following
areas or provides justification why any
of these areas do not apply to the
•proposal:
(1) The Intended use of the data and
the associated acceptance criteria for
data quality (precision, accuracy.
representativeness, completeness.
comparability)',
(2) Project requirements for precision.
accuracy, representativeness.
completeness, comparability, and how
these will be determined:
(3) Procedures for selection of samples
or sampling sites and collection or
preparation of samples:
(4) Procedures for sample handling.
identification, preservation,
transportation, and storage:
(5) Description of measurement
methods or test procedures with a
statement of performance
characteristics if methods are non-
standard;
(6) Standard quality assurance/
quality control procedures (e.g..
American Society for Testing Materials.
American Public Health Association
standard procedures) to be followed.
Non-standard procedures must be
documented: and
17] Data reduction and reporting
procedures, including description of
statistical analyses to be used.
(e) If you are a State or local
government (except for recipients of
wastewater constniction grants under
Title U of the Clean Water Act. as
amended, or assistance awards under
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980). you must hove a quality
assurance program plan acceptable to
the award official. (For assistance in
preparing a program plan, see
"Guidelines and Specifications for
Preparing Quality Assurance Program
Plan*" QAMS-004/80. This document
IEPA-600/8-83-024; NTIS PB 83-219667)
may be obtained from the National
Technical Information Service. 5885 Port
Royal Road. Springfield. Virginia 22101.)
The program plan must address the
following areas:
(1) Name of principal investigator(s)
and quality assurance officer:
(2) Background, purpose, and scope of
the quality assurance plan:
(3) Quality assurance policy
statement:
(4) Quality assurance management
plan:
(5) Personnel qualifications;
• (6) Facilities, equipment and services:
(7) Data generation and general
quality assurance requirements;
(8) Data processing, e.g.. reduction.
validation, reporting;
(9) Data quality assessment
(10) Corrective action for out-of-
control situations;
(11) Development of individual quality
assurance project plans and standard
operating procedures, if required in the
program plan; and
(12) Implementation requirements and
schedule.
(f) All other applicants for financial
assistance must submit with their
application (see } 30. 3O2(d)) a quality
assurance project plan acceptable to the
award official. (For assistance in
preparing a quality assurance project
plan see "Interim Guidelines and
Specifications for Preparing Quality
Assurance Projects Plans" QAMS-005/
80. This document (EPA-600/4-83-004:
NTIS PB R3-170514) may be obtained
from Ihe National Technical Information
Service. 5885 Port Royal Road.
Springfield, Virginia 22161.) The project
plan must address the following items:
(1) Title of project and name of
principal investigator(s):
(2) Table of contents of project plan;
(3) Project description:
(4) Project organization and
responsibilities:
(5J Quality assurance objectives and
criteria for determining precision.
accuracy, completeness.
representativeness, anrl comp;i'.!bility of
data:
(8) Sampling procedures:
(7) Sample custody:
(8) Calibration procedures and
frequency and traccabilily of standards;
(9) Analytical procedures:
(10) Data reduction, validation, and
reporting:
(11) Internal quality control cherts:
(12) Performance anri system aixJils:
(13) Preventive maintenance;
(14) Specific standard operating
procedures used to assess data
precision, accurncy. rcprcsentntiveness.
and comparability:
(15) Corrective action for cut-of-
control situations: and
(18) Quality assurance reporting
procedures.
(g) Recipients of dn assistance award
under the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1900
(Superfund). must comply w:th the
quality assurance project plan
requirements in paragraph (i) in this
section.
(h) If required (see } 30J02(d)(3)). a
recipient of a wastewater treatment
construction grant under Title II of the
Clean Water Act. as amended, muat
comply with the quality assurance
project plan requirements in paragraph
(0 in this section.
130J03 Whs* report* mint 1 Mbmtt?
(a) Interim and final progress reports.
You must submit interim and final
progress reports if the assistance
agreement or EPA regulations require
them. See 40 CFR Parts 35.40, and 45 for
specific requirements. EPA or its
authorized representatives may inspect
>1
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45068 Federal Reguter / Vol. 48. No. 191 / Friday. September 30. 1963 / Rules and Regulations
your project at any reasonable time to
review its progress.
(b| Financial reports. (I) You must
submit a Financial Status Report (SP
289) within 90 days after each budget
period within 90 days after the end of
your project completion or termination.
If either the Financial Status Report
(FSR) you submit after the budget period
or the FSR you submit after your project
is completed or terminated includes
unliquidated obligations, you must
submit a final FSR Immediately after
those obligations are liquidated. If you
do not submit a final FSR within a
reasonable time after the 90 day period.
the award official may disallow the
unliquidated obligations.
(2) Under the wastewater treatment
construction grants program, your Hnal
"Outlay Report and Request for
Reimbursement for Construction
Programs" (SF 271) will serve as the
financial report.
(3) Recipients of fellowship assistance
agreements do not have to submit FSB's.
(c) Invention reports. You must report
all inventions (see Subpart K for
details). You must submit a final
invention statement to the award official
within 90 days after completion of a
project If you have a continuation
award, you must submit an annual
invention statement with your
continuation application. Also, if you
change your project manager on a
research project, you must submit an
invention report at that time to die
award official
(d) Report on Federally-Owned
Property. You must submit an annual
inventory of all Federally-owned
property used on your project At the
end of the project period, or when you
no longer need the property, you must
submit a final inventory which states
the present condition of each Item and
requests disposition instructions.
1 30J10 What typ* of financial
«y»t»m rnus* I maintain?
You must maintain a financial
management system that consistently
applies accepted accounting principles
and practices and at least includes:
(a) An accurate, current and complete
accounting of all financial transaction*
for your project:
(b) Records, together with supporting
documents showing the source sod
application of all project funds.
Including assistance awards and
authorizations, obligations, unobligated
balance*, assets, liabilities, outlay*, and
Income;
(c) Control over, and accountability
for, all project funds, property, and other
assets, and an assurance that you used
these solely for their authorized
purpose:
(d) A comparison of actual costs
versus budgeted object class amounts:
(e| Procedures to ensure prompt
disbursement of Federal funds after you
receive them:
(f) Procedures for determining
allowable, allocable, and reasonable
costs:
(g) Audits at least every other year on
an organization-wide basis (see
{ 30.540): and
(h) A systematic method to resolve
audit findings and recommendations.
} 30.5 U WhatrmMctlonvon
survey*, and qunttonnalnM mud I
(a) Signs. You must place a visible
project identification sign at a
construction site. The sign must give
project information and credit EPA for
funding. Your project officer will give
you specifications for sign design.
content and placement. The cost of
making and erecting the sign is an
allowable cost.
(b) Survey* and questionnaires. If
your survey or questionnaire states that
information is being collected for the
rederal Government, you must request
written approval from EPA to use
Agency fund* to cover the costs of data
collection. To assure compliance with
the Paperwork Reduction Act of 1980.
Pub. L 96-511 (44 U.S.C. 3501 et seq.).
the project officer can grant approval
only with the agreement of the EPA
Headquarters reports management
officer. You must also receive the
project officer's approval to list EPA a*
a recipient of the survey information.
}30.51« What m me> procwiurM for
puoManmg acJanUnc. InformaBonai. and
educational docum«nt»?
(a) EPA encourages publication of the
results of its assistance agreement*.
(b) You must comply with EPA's pe«r
and administrative review process If
you intend to release to the public
informational materials, reports, and
other product* produced under an EPA
assistance agreement.
(1) Except for articles published under
paragraph (d) of this section, you must
submit three copies of the document* to
your project officer for EPA review. EPA
will evaluate the documents and will
provide you with written, suggested
change*. If any.
(2) You should make every effort to
accommodate suggestions arising from
the EPA review process while preparing
• revised draft. You should alert EPA
reviewer* to suggestion* you cannot
accommodate and to change* Initiated
by yon in the revived draft
(3) If an agreement is reached that tl.
material is appropriate for release as an
EPA publication, the following
statement must be included in the
document:
The Information in this document has beon
Funded wholly or in pan by the United Slates
Environmental Protection Agency under
assistance agreement (number) to (recipient).
'.'. h;» h-cr. subjected to the Agency's peer
and administrative review and has been
approved for publication as an EPA
document. Mention of trade names or
commercial products doc* not constitute
endorsement or recommendation fur use.
(c) If agreement cannot be reached
that the material is appropriate for
release as an EPA publication, you may
Independently publish and distribute the
document for your own use and at your
own expense provided you include the
following statement In the document:
Although tht information in this document
has been Funded wholly or In part by the
United Slates Environmental Protection
Agency under assistant* agreement (number)
to (recipient), il may not necessarily reflect
the views of the Agency and no official
endorsement should be inferred.
(d) EPA also encourages independent
publication of reports in referred
journals at any time. You must submit a
copy of tha>article to your project office1 •
when you send it for publication.
Following publication, three copies of
the article should b« submitted to the
project officer. The article must include
the following statement:
Although the research described In LKn
article has bran funded wholly or In part by
the United Stales Environmental Protection
Agency under assistance agreement (number)
lo (recipient). It has not been subjected to the
Agency's peer and administrative review and
therefore may not necessarily reflect the
views of (he Agency and no official
endorsement should b» Inferred
(e) Documents that are not to be
released to the public as EPA
• publications but are part of a recipient's
regular pollution control activities are
not subject to the EPA peer and
administrative review process, e.g..
State pollution control agency-published
newsletters and operation and
maintenance manual* under ther
wasterwater treatment construction
grants program. However, EPA
encourages you to establish a similar
reveiw process before publishing any
documents at your own expense. You
may publish such document* only If you
include the following statement;
This project has been funded whclly or In
part by the United States Environmental
Protection Agency under assistance
agreement (number) to (recipient). The
contents of this document do not necessarily
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Federal Register / Vol. 48. No. 191 / Friday. September 30. 1983 / Rules and Regulations 45069
reflect Ihe views and policies of the
Environmental Protection Agency, nor does
mention of trade nsmei or commercial
producti commute endorsement or
recommendation for UM.
J 30~520 When may I out my own
enipioyeee (**fof ce account* j?
If costs will exceed $25.000. you must
get prior written authorization from your
project officer to use your own
employees or equipment for
construction, construction-related
activities, or for repairs or
improvements to a facility ("force
account"). You must demonstrate that
(a) your employees can competently and
more economically complete the work
than contractors or (b) an emergency
circumstance makes the use of "force
account" necessary.
{ 30.525 How should I treat program
Income?
(a) You may use program income to
fund additional eligible project
activities, or if approved by the award
official, to meet your non-Federal share
of project costs.
(b) If you do not use the program
income to fund additional eligible
activities or you are not permitted to use
program income to meet your non-
Federal share of project costs. EPA will
subtract the.income from the tolal
allowable project cost'to determine Ihe
net cost on which the Federal share will
be based.
(c) Unless the assistance agreement
provides otherwise, you do not owe EPA •
any of the royalties you earn on
copyrights or patents produced under
the assistance agreement. (See Subpart
K of this part for EPA's rights regarding
copyright* and patents.)
(d) You must keep complete records
«ho wing all receipts and expenditures
related to program income.
930.529 How do I treat Intermt earned on
EPA fund*?
If you earn interest on an EPA
advance, you must return it to EPA
unless you are:
(a) A State, or State agency as defined
under section 203 of the
Intergovernmental Cooperation Act of
1968, (42 U.S.C. 4213). or
(b) A tribal organization as defined
under sectio.,,, 102. «OC, ct 1C-: of the
Indian Self Determination Act (25 U.S.C.
450f. 450g. and 4SOh).
{30.530 Hay I purchaaa penonal property
Mine, EPA aaaUtance fund*?
(a) Nonprofit institutions of higher
education and nonprofit organizations
whose primary purpose it the conduct of
scientific research. You may purchase
personal property for the conduct of
basic or applied research if authorized
ta do so in your assistance agreement.
Before you purchase property or
equipment with a unit acquisition cost 01
S10.000 or more, you must receive the
award official's approval. Title will be
vested in you but may be limited as
provided in paragraph (a)(l) of this
section.
(1) If EPA determines that it is in the
best interest of the Agency, EPA may
reserve the right to transfer the title for
personal property having a unit
acquisition cost of SI.000 or more to the
Federal Government or a third party.
within 120 days after project completion.
EPA must identify such property in the
assistance agreement, or otherwise
notify you in writing that EPA reserves
the right to transfer the title.
(2) If EPA does not reserve the right to
transfer the title, you have no other
obligations or accountability to EPA.
(b) Other recipients. You may
purchase personal property with EPA
assistance funds if authorized lo do so
in your assistance agreement. Before
you purchase personal property with a
unit cost of S10.000 or more, you must
receive the award official's approval.
Title will be vested in you, subject lo the
following conditions:
(1) You must use the property in the
EPA assisted project for which it was
• acquired as long as needed, whether or
not the project continues to be
supported with EPA funds:
(2) You muKt assure that EPA's
interest (the percentage of EPA's
participation in the total award) is
adequately reflected and protected in
compliance with all recordation or
registration requirements of the Uniform
Commercial Code or other applicable
local laws on all nonexpendable
personal property with a unit acquisition
cost of $10.000 or more:
(3) You must follow the property
management standards in 5 30.531:
(4) You must follow the disposition
requirements in { 30.532: and
(5) EPA reserves the right lo transfer
the title for nonexpendable persona!
property having a unit acquisition cost
of $1,000 or more to the Federal
Government or a third party, within 120
days after project completion. EPA must
identify such property in the assistance
agreement
{ 30.531 What property management
•tandutte must I follow lor nonaipendaMe
personal property purcnaaed with an EPA
•ward?
Nonprofit institutions of higher
education and nonprofit organizations
whose primary purpose is to conduct
scientific research are exempt from the
following standards. All other recipients
must comply with the following property
management standards. Recipients may
use their own property management
system if the system meets the following
minimum standards.
(a) Maintain accurate records
reflecting:
(1) A description of the property:
(2) Manufacturer's serial number.
model number, or other identification
number
(3) Source of the property, including
assistance identification number
(4) Whether title is vested in the
recipient or-the Federal Government;
(5) Unit acquisition date and cost:
(6) The percentage of the Federal
share of the cost:
(7) Location, use. and condition of
property and the date Ihe information
was recorded: and
(8) Ultimate disposition data.
including sales price or the method used
to determine the pnce. or the method
used to determine current fair market
value where a recipient compensates
EPA for its share under i 30.532 of this
part.
(b) Conduct a physical inventory of
property, and reconcile the results with
the property records, at least once every
.-. two years. Your inventory must verify
'- the current use and continued need fur
the property. ;
(c) Maintain a control system lo
prevent loss, damage, or theft. (You
must thoroughly investigate and
document any loss, damage, or theft of
nonexpendable personal property.)
(d) Maintain adequate maintenance
procedures that ensure the property is in
good condition and that instruments
used for precision measurements are
periodically calibrated.
(e) Maintain proper sales procedures
which provide for competition resulting
in the highest possible return.
(f) Maintain identification of
Federally-owned property.
$ 30.532 How do I dlapoae o< personal
property?
When personal property is no longer
needed for the original project, you may
use it on other EPA projects. If you do
not have other EPA projects, you may
use it on other Federal projects. If you
wish to use the property on other than
Federally sponsored activities, you must
comply with the following requirements:
(a) Generally, if you purchased
nonexpendable personal property for
less than $1.000 per unit, you may either
keep it or sell it and keep the proceeds.
However, if you are a profiunaking
organization, you may keep
nonexpendable personal properly only il
you reimburse EPA for its proportionate
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share of the current fair market value of
the property.
(b) If EPA does not reserve the right to
transfer Title under } 30.530(a)(l). EPA is
•till entitled to compensation on
nonexpendable personal property you
purchased for more than SI.000 (see
I 30.S30(b)(5j). You may keep it.
pro^d""1 you compensate EPA for its
proportionate share of the current fair
market value. If you do not want to keep
the property, your project officer will
give you instructions for disposition.
(c) If. at the end of you project, your
have expendable personal property with
. a total aggregate fair ma.ket value
exceeding $1,000. you may use the
property on other Federally sponsored
projects. If you do not use the property
on other Federally sponsored orcjects
you must keep it or sell it. hut in either
cas« you rrujsl compensate EPA for its
proportionate share of the current fair
market value.
13O533 btoy I purefc*ae real property wtth
EPA awarded furxU?
You may purchase real property
subject to the following conditions:
(a) The award official must approve
the purchase.
(b) Except as provided in parn Taph
(e) of this section, you must use Ihe real
property only for the purpose for wh'ch
it waa purchased .under the assistance
award.
(c) You comply with (he requirements
in 40 CFR Part 4.
(d| You must also comply with 40 CFR
Part 35. Subpart 1. if your award is a
wastewater treatment construction
grant.
(e) You must assure that EPA's
interest is adequately reflected and
protected in compliance with all
records lion or registration requirements
of applicable local laws on real
property.
(f) When it is no longer needed for the
original project:
(1) You must get approval from EPA to
us« the property for other Federally
supported projects or progams. or
•?) You must contact EPA for
inductions on how to dispose of the
property. EPA may:
(i) Permit you to retain title to the
property provided you compensate EPA
for its share or
(u) Direct you to sell the property and
(o compensate EPAJor its share, less
your expenses; or
(Ui) Direct you to transfer the title of
the property to the Federal Government
.and then compensate you based on your
percentage of participation in the
original cost of the project, wluch will be
applied to the current fair market value
of the property.
} 30.534 How do I manage Federally-
owned property?
You must negotiate the use of
Federally-owned property with the
award official and comply with your
lease agreement and } 30.505(d). You
must inform the project officer of the
availability of the property when the
property is no longer needed for the
assistance project or when you have
completed the project. EPA will give you
instructions on where to return the
property
5 30.537 Are contractors required to
comply with EPA property pollclee?
Generally, contractors are not
required to comply with EPA property
policies. However, if your contractors
acquired personal property with EPA
funds, and the subagreement stales that
ownership vests in you or EPA. the
contractor must comply with EPA
propel!y policies.
} 30.53* Hey I us* General Service*
Administration (CSA) supplle* and
services?
You may not use GSA sources of
supplies and services, or excess
Government property. Excess
Government property consists of
property under the control of any
Federal agency that is not required for
its needs.
? 30.540 Who will audit my prefect?
(a) General. EPA may perform pre-
award or interim audits, as well as a
final audit of your project. If EPA audits
your project. EPA will rely to the extent
practicable on your audits conducted
under ] 30.510'g) (if done in accordance
wiih applicable audit standards) Instead
of renuditing the same records.
(b) State and local governments. Slate
and local governments must comply
with 'he audit requirements in OMB
Circular A-102. Attachment P and other
appropriate documents. Under
Attachment P. you must conduct an
audit at least once every two years to
evaluate the fiscal integrity of your
financial transactions and reports and to
determine compliance with the terms of
your assistance agreement. You should
conduct the nudit on an organization-
wide basis. You must submit a copy of
the audit to your cognizant Federal
agency. EPA will keep audit cognizance
over subagreements under the
wastewater treatment ccnstruction
grants program.
(c) Other recipients. The award
official may request a final audit after
the submission of, or the due date of, the
final Financial Status Report (sea
i 30.505( b)). Where your organization
has a cognizant Federal audit agency,
ETA will refer these audits to your
organization's cognizant Federal audit
agency. Where OMB has not established
a cognizant Federal audit agency, EPA
staff may perform or arrange for the
audit to be performed.
Subpart F—What Ottiw Federal
Requirement* Muat I Compty With?
{ 30.600 Whet Federal law* and pollclee
affect my award?
You must comply with all applicable
Federal laws.
(a) National Environmental Policy
Act You must comply with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) as amended and
other related environmental laws and
executive orders that require you to
assess the environmental impact of your
project. See 40 CFR Part 8 for specific
requirements.
(b) Flood Disaster Protection Act. If
your project involves construction or
property acquisition in a special flood
hazard area, you must comply with the
Flood Disaster Protection Act of 1973
(Pub. L 93-234. December 13,1973). If
your project is located in a community
participating in the National Flood
Insurance Program (42 U.S.C. 4001-4128).
the Act requires you to purchase flood
insurance as a condition of receiving
EPA assistance. If the community is no!
participating in the National Flood
insurance Program and the special flood
hazard area has been designated by the
Federal Insurance Administration of the
Federal Emergency Management
Agency for at least one year. ETA will
not award assistance for your project
until the community enters the program
and flood insurance is purchased. See 44
CFR Parts 59 through 79 for specific
requirements.
(c) Clean Air Act. Section 308 of the
Clean Air Act. (42 U.S.C. 7606). as
amended, and Executive Order 11738
prohibit EPA from awarding assistance
to you (with certain exceptions) if you
intend to use any facility on EPA'i List
of Violating Facilities to complete work
on your agreement. You must include a
clause in all subagreements that
requires the recipients of those
subagreements that requires the
recipients of those subagreements to
comply with the requirements of 40 CFR
Part IS (»ee 40 CFR 33.1020).
(d) Federal Water Pollution Control
Act. Section 508 of the Federal Water
Pollution Control Act, (33 U.S.C. 1388).
as amended, and Executive Order 11738
prohibit EPA from awarding astislancs
to you (with certain exceptions) If you
intend to use any facility on EPA'i List
of Violating Facilities to complete work
on your agreement. You must Include s
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Federal Register / Vol. 4fl. No. 191. / Friday. September 30. 1983 / Rules and Regulations 45071
. clause in all subagreementa to comply
with the requirement* of 40 CFR Part 15
(Me 40 CFR 33.1020). Section 13 of the
1972 Amendment! to the Act prohibit!
•ex discrimination under any program or
activity receiving assistance under the
Act See 40 CFR Part 12 for specific
requirements.
(e) Civil Rights ACL You must comply
with Sec. 802, Title VI of the Civil Rights
Act of 1964. (42 U.S.C 2000d). and
related nondischmination laws and
Executive Order 11246. These
authorities prohibit you from excluding
any person from participating in.
denying them the benefits of. or
discriminating against them on the basis
of race, color, or national origin under
any program or activity involving
Federal financial assistance. See 40 CFR
Parts 7. S. and 12 for specific
requirements.
(f) Rehabilitation Act. You must
comply with Sec. 504 of the
Rehabilitation Act of 1973. (29 U.S.C
794), as amended, which prohibits
discrimination on the basis of handicap
in Federally assisted programs.
(g) Age Discrimination Act You must
comply with the provisions of the Age
Discrimination Act of 1975. (42 U.S.C
0101 at seq.). which prohibit
discrimination on the basis of age in
Federally assisted programs.
(h) Title IX of the Education
Amendments of 1972. You must comply
with Title IX of the Education
Amendments of 1972. (20 U.S.C. 1681 et
set].) which prohibits sex discrimination
in Federally assisted education
programs.
(1) Uniform Relocation Assistance and
Real Property Acquisition Policies Act.
You must comply with the Uniform
Relocation Assistance and Real
'Property Acquisition Policies Act of
1970, (42 U.S.C 4601 et seq.). if your
project Involves acquiring an interest in
real property and/or any displacement
of persons, businesses, or farm
operations. See 40 CFR Part 4 for
specific requirements.
()) The Indian Self-Determination and
Education Assistance Act. You must
comply with the Indian Self-
Determination and Education
Assistance Act of 1975 (P.L 93-638). If
your project will benefit Indians, the Act
requires you to give Indians preference
in training and employment
opportunities and in the award of
tubagreemenU.
(k) The Hatch Act If you are a State
or local government recipient, you must
ensure compliance with the Hatch Act.
(5 U3.C 1501 et seq.), as amended. The
Act requires State and local government
employees to comply with the
restrictions on political activities
Imposed by the Act if their principal
employment activities are funded
wholly or in part by Federal assistance.
S«e 5 CFR Part 151 for specific
prohibitions and exemptions.
(1) So/e Drinking Water Act Section
1424(e) of the Safe Drinking Water Act
(42 U.S.C 300h-3(e)). prohibits EPA from
awarding assistance to you if EPA
determines that your project may
contaminate a sole source aquifer which
will result in a significant hazard to
public health. See CFR Part 149.
130.601 Are there i»aUtcBuna on ttte we
of sMsftetBftov funds for •oVococy
purpoew?
You may not use assistance funds for:
(a) Lobbying or influencing legislation
before Congress;
(b) Partisan or political advocacy
purposes: or
[c) An activity whose objective could
affect or influence the outcome of an
EPA regulatory or adjudicatory
proceeding.
130-603 What additional Federal law*
apply to EPA asaieted construction
protects?
If you receive EPA assistance for a
project involving construction, you must
ensure compliance with the following
additional requirements: . - . •
(a) The Davis-Bacon Act The Davis.
Bacon'Act (40 U.S.C. 276a et seq.) as
amended, and implementing regulations
of the Department of Labor under 29
CFR Part S require you to ensure that on
construction subagreements in excess of
$2.000. your contractors and
subcontractors pay wages to laborers
and mechanics at least equal to the
minimum wages specified by the
Secretary of Labor if required in the
program statute.
(b) The Copeland Act The Copland
(Anti-Kickback) Act. and the regulations
of the Department of Labor under 29
CFR Part 3 prohibit your contractors and
subcontractors from inducing any
person involved in your project to give
up any part of the compensation to
which that person is entitled under an
employment contract.
(c) The Contract Work Hours and
Safety Standards Act. The Contract
Work Hours and Safety Standards Act
(40 U.S.C. 327 et aeq.) and the
regulations of the Department of Labor
under 29 CFR Part 5 require your
contractors and subcontractors to pay
wages to laborers and mechanics an the
basis of an eight hour work day and 40
hour work week and to pay at least
time-and-a-half for work performed in •
excess of these time limitations. Also.
the Act prohibits your contractors and
subcontractors from requiring laborers
and mechanics to work in hazardous.
unsanitary, or dangerous conditions (see
29 CFR Part 1928).
(d) Convict labor. You may not use
convict labor unless the convicts are on
work release, parole, or probation (see
18 U.S.C. 436).
i 30.610 What arc my rMpondblllttM lor
preventing ind detecting fraud and orrter
corrupt prectfcea?
(a) You bear the primary
responsibility for preventing, detecting.
and prosecuting corrupt practices under
your assistance agreement.
(b) If you become aware of
allegations, evidence, or the appearance
of corrupt practices, you must:
(1) Immediately inform the EPA
project officer and the EPA Office of
Inspector General; and
(2) Promptly pursue available State
and local legal and administrative
remedies.
i 30.611 Can I Mr* a person or agency to
•ollctt EPA assistance for me?
Yes. but you may not reimburse with
EPA assistance funds any person.
corporation, partnership, agency, or
other entity which solicits or secures
EPA assistance for you in exchange for
/a commission, a percentage fee. a
brokerage fee. or a contingent fee.
} 30.612 May an EPA employee act as my
representative?
(a) An EPA employee may not
represent you as an agent or attorney in
any proceeding before EPA or any other
Federal agency in which the United
States is a party or has a direct or
substantial interest unless:
(1) You are a State or local
government agency.
(2) The EPA employee is on detail to
the agency under the Intergovernmental
Personnel Act (5 U.S.C. 3371-3376); and
- (3) The representation takes place in
the context of carrying out programs for
which EPA and your agency have a joint
responsibility under the environmental
statutes.
(b) Except as provided for in
paragraph (a) of this section, an EPA
employee must not act as an agent or
attorney for a recipient or for a
contractor or subcontractor of a
recipient in any claim against the united
States.
} 30.613 What la EPA'a policy on conflict
olIntereet?
EPA's policy Is to prevent personal or
organizational conflict of interest, or the
appearance of such conflict of interest in
the award and administration of EPA
assistance, Including subagreements.
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Federal Register / Vol. 48. No. 191 / Friday, September 30. 1983 / Rules and Regulations
(For restrictions on EPA employees, seo
40 CFR Part 3.)
(a) An official or employee of a
recipient may not participate in any
activity relating to EPA assistance if any
of the following persons or
organizations, lo the official's or
employee's knowledge, has a financial
interest in the activity:
(1) The official or employee himself:
(2) The official or employee's spouse
or minor child:
(3) A partner of the official or
employee:
(4) An organization (other than H
public agency) in which the official or
employee serves as an officer, direcior.
trustee, partner, or employee: or
(5) Any person or organization wilh
whom the official or employee is
negotiating or has any arrangement
concerning prospective employment.
(b) Officials and employees of
recipients must avoid any action which
might result in. or create the appearance
of:
(1) Using official position for private
gain:
(2) Giving preferential treatment to
any person:
• (3) Losing independence or
impartiality:
(4) Making an official decision outside
'official channels: or
(5) Undermining public confidence in
the integrity of EPA programs.
J 30.815 U*y I employ • former EPA
employe* and iUD receive lulsunc*?
You may hire a former EPA employee
and still receive assistance provided the
former employee complies with the
restriction* on post-employment
activities established by 18 U.S.C. 207.
These restrictions are explained in
regulations issued by the Office of
Personnel Management under S CFR
Part 737 and EPA regulations under 40
CFR Part 3.
Subpart O—Can An Aaalatance
Agreement B« Changed?
I 30.700 What Chang** to my M*J*tance
agmiinnl require a formal •uMtMliiiwu?
You must receive from the award
official a formal amendment before
implementing:
(a) A transfer of an award to another
recipient
(b) Changes in the objectives of the
project;
(c) Changes in the assistance amount:
(d) Substantial changes within the
scope of the project or
(e) A rebudgeting of the following:
(1) Amounts budgeted for either
construction or non-construction
activities if transferred from one activity
to the other
(2) Amounts budgeted for indirect
costs to absorb increases in direct costs:
or
(3) Amounts budgeted for training
allowances if transferred to other cos)
categories.
! 30.705 What change* can I m*ke to my
***J*t*nc* *gr**tnent without • formal
*m*ndm*nr?
Minor changes in the project work
that are consistent with the objective of
the project and within the scope of the
assistance agreement do not require the
execution of a formal amendment before
the recipient's implementation of the
change. However, such changes do not
obligate EPA to provide Federal fund*
for any costs incurred by you in excess
of the assistance amount, unless
approved in advance under f 30.700.
{30.710 Can I terminate a part or a* of my
•Mlstanc* «gr«ement7
(a) You and EPA may terminate a part
or all of your assistance agreement."
when both parties agree that the
continuation of the prcject will not
produce beneficial results. You and the
award official must agree on the
conditions of the termination, the
effective date, and in the case of partial
termination, the portion to be
terminated. EPA may unilaterally
terminate for cause your assistance
agreement under § 30.903 of this part.
(b) EPA will pay you the Federal
share of allowable costs incurred up to
the date of termination and allowable
costs related to commitments you made
prior to termination that you cannot
cancel.
Subpart H—How Do I Cloae Out My
Project?
; 30.800 What record* *nd report* mu*t I
k**9 *n*r I compl*!* my project?
You and your contractors must keep
all books, records, documents, and other
evidence (including accounting
procedures and practices and
subagreement documents) that track the
progress of your project in accordance
with the requirements under f 30.501.
} 30.802 Under what condroon* w* I owe
money to EPA?
(a) If the award official determines
that you owe funds, you must reimburw
the Federal government that amount
EPA will take appropriate legal and
administrative action to collect the
amount you owe the Agency if
reimbursement Is not made In a timely
manner. EPA may offset the debt
against other funds payable to you
under an EPA or other Federal agency
assistance agreement If not explicitly
prohibited by another statute.
(b) EPA wiU charge you interest ana
penalty if you fail to pay within 30 day
from the date of the Agency's final
decision, (see Subpart L). The interest
rate will be the rate established by the
Secretary of Treasury in accordance
with the Treasury Fiscal Requirements
Manual 6-8020.20. The rates are
published quarterly in the Federal
Register. EPA will also charge you a
penalty charge of 6 percent of the debt
and will charge you its cost to handle
and process the debt.
(c) The penalty and handling charges
in this section do not apply to State and
local governments, but the interest
charges do apply.
Subpart t—What Measure* May EPA
Take for Non-Compliance?
J 30.900 Whit *r* the unction* for non-
compliance?
If you do not comply with all of the
terms and conditions of your assistance
agreement, the award official may apply
any of the following sanctions:..
(a) Issue a stop-work order
(b) Withold payment:
(c) Suspend or terminate your
assistance agreement for cause:
(d) Annul your assistance agreement
(e) Debar or suspend you as an
eligible recipient:
(f) Take other appropriate
administrative action: or
(g) Institute judicial proceedings.
J 30.901 What are the conaequence* of •
slop-work order?
(a) A stop-work order requires you to
immediately stop the work or activities
described in the order and to take all
reasonable steps to minimize coats
incurred on the work. The award official
will issue the order in writing. The order
will be in effect for forty-five days after
you receive it unless cancelled or
extended by mutual agreement between
you and EPA. If the problem cannot be
resolved during the stop-work period
and EPA is likely to terminate or annul
the agreement, the award official will so
inform you.
(b) If the stop-work order Is cancelled
and it caused any increase in the cost of
and/or the time for completing the
project you may request an adjustment
in the project period, budget period, or
assistance amount You must subreU a
request for adjustment to tha project
officer within sixty days after the stop-
work order ended.
13O.90J Whet are the oona*qusncM o<
•jtlhhoMng payment*?
(a) The award official may withhold -
payments when you fail to comply wit
the task*, reporting requirements, or
76
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Federal Register / Vol. 48. No. 191 / Friday. September 30. 1983 / Rules and Regulations 45073
conditions of your assistance agreement.
The award official will provide you
reasonable notice in writing before
withholding payment.
(b) The award official may withhold
only the omount necessary to assure
compliance with your assistance
agreement.
(c) The award official may withhold
payment to the extent you are indebted
to the United Stales, unless the
collection of the indebtedness will
impair the accomplishment of the
project and the continuation of the
project ia in the best interest of the
United States.
5 30.903 Wnat are the consequences of
termination for cause?
(a) The award official may
unilaterally terminate your agreement in
whole or in part at any time before the
dale of completion, whenever he
determines that you have failed to
comply with the conditions of your
agreement. The award official will
provide you an opportunity for
consultation before issuing a notice of
termination.
(b) If EPA terminates your agreement.
the award official will notify you in
writing of his delerminHtion. the reasons
for the termination, and the effective
date. Upon receiving Ihe termination
notice, you must stop work immediately.
EPA will nbt reimburse you for any new
commitments you make after you
receive the termination notice. ,
(c) EPA will pay you the Federal share
of allowable costs incurred up to the
date of termination and allowable costs
related to commitments you made prior
to termination that you cannot cancel.
4 30.904 What are me consequences of
(a) The award official may
unilaterally annul in whole or in part
your assistance agreement in any of the
following cases:
(1) You have made no substantial
progress on the project without good
cause:
(2) You obtained an assistance
agreement by fraud or
misrepresentation:
(3) You are found to practice corrupt
administrative procedures:
(4) You have inordinately delayed
project completion wi.lioul fcuuu ca^c.
or
(S) You have failed to meet the project
purpose to the extent that the
fundamental purpose stated in the
assistance agreement is frustrated.
(b) If EPA intends to issue an
annulment, the award official will
inform you of the annulment in writing.
The award official will provide you an
opportunity.for consultation before
issuing a notice of annulment. If your
assistance agreement is annulled, you
must return all funds received for the
project including those already
expended. EPA may pursue other
available remedies under Federal. State.
and local laws.
? 30.905 C4ay I appeal • termination, or
annulment?
You may appeal EPA's decision to
terminate or annul an assistance
agreement. Within thirty days after the
notice of termination or annulment is
issued, you must file a written request
for appeal to the oppropriate Assistant
or Regional Administrator. Your appeal
must follow the procedures under
Subpart L of this part.
3 30.906 What sre Ihe consequences of
cusoonsion of determent?
EPA may suspend or debar you in
accordance with 40 CFR Part 32. You
may not receive assistance or a
subagreement if your name or
organization appears on EPA's Master
List of Debarred and Suspended Firms
and Individuals.
Subpart J—Can I Get An Exception
("Deviation") From These
Regulations? • ,-
§ 30.1001 Will EPA giant cny exceptions
to these regulation*?
(a) On H cHse-by-c
-------
45074 Federal Register / Vol. 48. No. 191 / Friday. September 30. 1983 / Rules and Regulations
(RCRA). must comply with section
6981(c) of RCRA. See Federal
Procurement Regulations. 41 CFR Part l-
9. specifically l-9.107-5(a) for the
required patent rights clause.
(c) If you are neither a small business
firm nor a profitmaking firm with an
award under section 6914 of RCRA. you
are subject to the guidelines in the
President's Memorandum on
Government Patent Policy issued on
February 18. 1983 (Weekly Compilation
of Presidential Documents, vol. 19. no. 7,
page 252). and. therefore, must comply
with Pub. L 96-517. 35 U.S.C. Chapter
38.
1)30.1102 What are my Invention right*
•nd my reporting requirements It my award
I* other than an award under section 6914
of RCRA?
You must report all inventions to EPA
and decide whether you wish to retain
domestic and/or foreign rights to your
invention. You must notify EPA of your
decision within the time period specified
in the patent rights clause included in
your assistance agreement. If you do not
decide to retain rights to your invention
within the time specified, EPA may
acquire title from you. If you retain title.
EPA acquires a royally-free, irrevocable
license to use the invention throughout
the world by. and on behalf of. the
Federal Government.
5 30.1103 What are my Invention right*
and obligations If I am • profitmaking firm
with an award under »ec11on 6914 of
RCRA?
If you are not a small business and
your assistance agreement does not
indicate otherwise, you must comply
with the patent rights clause, entitled
"Patent Rights Acquisition by the
Government" (41 CFR l-9.107-5(a)).
which implements section 6961(c) of
RCRA. Under thi» section. EPA normally
obtains title to your invention.
} 30.1104 Can I get a waiver from aectlon
6M1(c) of RCRA?
On a case by case basis, you may ask
EPA for a deviation from section 9981 (c)
of RCRA. You must follow the
procedures in Subpart J
} 30.110* Do the patent rule* apply to
aubagreement*?
(a) Yes. if the subagreements involve
experimentation, development, special
investigations, surveys, studies, or
research, you must include the
appropriate patent rights clause in the
subagreement. All business firms and
nonprofit organizations awarded
subagreements are entitled to the
benefits and must comply with Public
Law 90-517 and the President's
Memorandum on Government Patent
Policy of February 13. 1983. except that a
party to a subagreemcnt awarded under
section 6914 of RCRA which is a
profitmaking firm not defined as a small
business firm, is subject to J 30.1101(b).
(b) Subagreements must be in
compliance with the "Patent and data
and copyright clause" in 40 CFR Purl 33.
and generally must contain the same
patent rights clause as contained in your
assistance agreement.
930.11M Doe* EPA require any type of
licensing of background patents mat I
own?
Generally. EPA does not require such
licensing. However, in awards subject to
Pub. L 96-517 the Administrator may
approve such a requirement under
exceptional circumstances.
} 30.1112 Are mere any other patent
ctauaes or condlttona mat apply to my
award?
Your award is subject to both Ihe
Notice and Assistance Clause and the '
Authorization and Consent Clause in
Appendix B to this part.
J 30.1130 Yrtiat rights In data and
copyrights doee EPA acquire?
All assistance agreements and
subagreements are subject to Appendix
C. As set forth in Appendix C, the
Federal Government has an unrestricted
right to use any data or information
generated using assistance funds or
specified to be delivered to EPA in the
assistance agreement. The Federal
Government has a royalty-free.
irrevocable license to use any
copyrighted data in any manner for
Federal Government purposes.
Subpart L—How Are Disputes
Between EPA Officials and Me
Resolved?
} 30.1200 Whet happens If an EPA official
and I disagree about an assistance
agreement requirement?
(a) Disagreements'should be resolved
at the lowest level possible.
(b) If you can not reach an agreement.
the EPA disputes decision official will
provide you with a written final
decision. The EPA disputes decision
official is the individual designated by
the award official to resolve disputes
concerning your assistance agreement.
(c) The disputes decison official
decision will constitute final agency
action unless you file a request for
review by registered mail, return receipt
requested, within 30 calendar days of
the date of Ihe decision.
J30.1205 If I file a reque*t for review, with
whom must I file?
(a) For final decisions issued by an
EPA disputes decision official at
Headquarters, you must file your -.
request with Ihe Assistant
Administrator responsible for the
assistance program.
(b) For final decisions issued by a
Regional disputes decision official, you
must file your request for review with
the Regional Administrator, [f the
Regional Administrator issued the final
decision, you must request the Regional
Administrator to reconsider that
decision.
$30.1210 What must I Include In my
request for review or reconsideration?
Your request must include:
(a) A copy of the EPA disputes
decision official's final decision:
(b) A stalemenl of the amount m
dispute:
(c) A description of the issues
involved: and
(d) A concise statement of your
objections to the final decision.
§30.1215 What are my rights after I- III* a
request for review or reconsideration?
(a I You may be represented by
counsel and may submit documentary
evidence and hriefs for inclusion in ,i
wnll«n record:
(b) You tire entitled to an informal
conference with F.PA officials: Hnd
(c) You are entitled to a written
decision from the appropnale Regmn.il
or Assistant Administrator.
$30.1220 If the Assistant Admlnlstrstor
confirms the final decision of the
Headquarter* disputes decision official.
may I seek further admtntatrathre review?
A decision by the Assistant
Administrator to confirm the final
decision of a Headquarters disputes
decision official.will constitute the final
Agency action.
} 30.1225 If the Regional Administrator
confirms the final decision of me Regional
disputes decision official, may I seek
further administrative review at EPA
Headquarters?
(a) A determination by the Regional
Administrator to confirm the Regional
disputes decision official's decision will
constitute the final Agency action.
However, you may file a petition for
discretionary review by the Assistant
Administrator responsible for the
assistance program within 30 calendar
days of the Regional Administrator's
decision. Your petition must be sent to
the Assistant Administrator by
registered mail, return receipt requested.
and must include:
(1) A copy of the Regional
Administrator's decision: and
-------
Federal Register / Vol. 4& No. 191 / Friday. September 30. 1983 / Rules and Regulations
45075
(2) A concise statement of the reasons
why you believe the decision is
erroneous.
(b) If the Assistant Administrator
decides not to review the Regional
Administrator's decision, the Assistant
Administrator will advise you in writing
that the Regional Administrator's
decision remains the final Agency
action.
(c) If the Assistant Administrator
decides to review the Regional
Administrator's decision, the review will
generally be limited to the written
record on which the Regional
Administrator's decision was based.
The Assistant Administrator may allow
you to submit briefs in support of your
petition for review and may provide you
an opportunity for an informal
conference In order to clarify factual or
legal issues. After reviewing the
Regional Administrator's decision, the
Assistant Administrator will issue a
written decision which will then become
the final Agency action.
9 30.1230 Win I be cnarg«d Interest tf I
owe money to EPA?
(a) Interest will accrue on any
amounts of money due and payable to
EPA from the date of the final Agency
action. If you are not a State or local
government, you will also be charged a
penalty of 8 percent of the amount due.
and you will be charged the cost to
handle and process the debt. (See
i 30.802). Only full payment of the debt
within 30 day* from the date of the final
Agency action will prevent EPA from
charging the interest, penalty, and
handling charges on the amount
outstanding.
(b) State and local government
recipients are not subject to the penalty
and handling charges in this section, but
are subject to the interest charges.
530.1235 Ar« ttiere any EPA decisions
wtilcfi may not be reviewed under trtls
subpart?
You may not appeal:
(a) Disapprovals of deviations under
Subpart J;
(b) Bid protest decisions under Part
33;
(c) National Environmental Policy Act
decisions under Part 6:
(d) Advanced waste waler treatment
decisions of the Administrator, and
(e) Policy decisions of the EPA Audit
Resolution Board.
Appendix A—EPA Program*
The following chart identifies EPA's
aieiilance programs and the types of awards
(granti or cooperative agreements) that EPA
will award under these programs.
M4SI
M.U4
M.501
M103
68S04
SUM unnrgrov* WHM Sam en-
m 101 PI"^ ••»
MMV Potmen Conm IM« n»ior«.
CM AuKira 10 SIMM
£•*• Omung WIM
Tr»wg _____________ ........... __
S«t» OMvg WWH OcamaanM
88507
M800
M«n
88700
S»O Dmung W«ur fUuiM.a
Mr PMuun GonM PMiirm
PMmdMt Convd RMMr^n ...._
SUM WHII OIBIKK Riiia.r _
winr Potuwn Ci»«im nmacn.
S*w OMvg wawr HIIULII tra
Tone
tor Corwbucoan
TrMOTWV Wcrta ____________
Stilt
.
•U»n or F
Appendix B—Ptteoo and Copyright! Clauses
Notice and Assistance Clauie
(a) The recipient must report to the project
officer, promptly and in reasonable written"
detail, each known notice or claim of patent
or copyright infringement on Lhn agreement.
(b) In the event of any claim or suit against
the Government, on account of any alleged
patent or copyright infringement arising out
of the performance of thu agreement or out of
the use of any supplies furnished or work or
service! performed hereunder. the recipient
must furnish to the Government, when
requested by the project officer, all evidence
and information in possession of the recipient
pertaining to such suit or claim. Such
evidence and information muat be furnished
at the expense of the Government except
where (he recipient has agreed to indemnify
the Government.
(c) The recipient must include in each
subagreement (including any lower tier
subagreement) in excess of $10.000 a clause
substantially siflar to the foregoing
provision »,
Authorization and Consent Clause
EPA gives its authorization and consent for
all use and manufacture of any invention
described in and covered by a patent held by
the United Slates in the performance of an
assistance agreement and any subagreemenl.
Appendix C—Right* in Data u>d Copyright!
(a) The term "subject data"'at used in this
clause includes writing, technical reports.
sound recordings, magnetic recordings,
computer programs, computerized data basics.
data base* in hard copy, pictonal
reproductions, plant, drawings, including
engineering or manufacturing drawings.
specifications, or other graphical
representations, and works of any similar
nature (whether or not copyrighted) which an
applicant submits or which EPA specifies to
be delivered under this assistance agreement
or which a recipient develops or produce*
and EPA pays for under thu assitlance
agreement. The term doea not include
financial reports, coat analyses, and other
information incidental to assistance
agreement administration.
|b) Except as may otherwise be provided ir
this assistance agreement, when publication)
films, or similar materials are developed
directly or indirectly from a project supportec
by EPA. the author is free to arrange for
copyright without approval. However such
materials shall be subject to the provisions o
4O CFR JO.S18. The recipient agrees (o and
does hereby grant to the Government, and to
its officers, agents, and employees acting
within the scope of their official dutiea. a
royalty-free, nonexclusive, and irrevocable
license throughout the world for Governmen
purposes to publish, translate, reproduce.
deliver, perform, dispose of and to authorize
others so to do. all subject data, or
copyrightable material based on such data.
covered by copyright now or in the future.
(c) The recipient shall not include in the
subject data any copyrighted matter without
the written approval of the project officer.
unless he provides the Government with the
wnlten permission of the copyright owner fi
the Government to use the copyrighted
matter in the manner provided in paragraph
(b) above.
(d) Nothing contained in this Appendix
shall imply a license to the Government
under any patent or be construed as affectn
the scope of any license or other rights
otherwise granted to the Government undei
any patent.
(e) Unless otherwise limited below, the
Government may. without additional
compensation to the recipient, duplicate, us
and disclose in any manner and for aiiy
purpose whatsoever, and have others so *>•
all subject data.
(H Notwithstanding any provisions of thi
assistance agreement concerning 'nspecuo
and acceptance, the Government shall hav
the nghl at any time to modify, remove.
obliterate, or ignore any marking reatrictin
disclosure of subject data if the marking is
not authorized by the terms of this assistai
agreement.
79
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45078 Federal Register / Vol. 48. No. 191 /Friday. September 30; 1983 / Rules and Regulations
(g) Data need not be furnished for standard
commercial itema or tervicea v/hich are
•normally told, or have been sold. or offered
to lh« public commercially by any supplier
and which are incorporated a» component
parti in or to be used with Ihe product or
procna being developed or investigated
under ihtt asa,iunce agreement, if in lieu
thereof identification of acurce and
characterutlct (Including performance
specifications. when naceaaary) r>ufficicm to
enable the Government to procure the part or
practice the proceia. or acquire an adequate
aubatltute. ara rumished.
(h) In addition to any dtta specified
elsewhere in lrv« nasulance agreement to b«
furnished to EPA. the recipient shall retain
and. upon written request of the projert
officer at any time during project
performance or within two years after project
performance n completed, deliver any
subject data not previously delivered.
Appaadlx D.— Put 30 Raporttflj
ABKOMn tar EPA iirjiurn artt appacaDon
ID EPA Form 3700-13 -AprMuMx for F*oar-
u AaaaMarc* (Aaa**>a\. Traraq 4 Drvnrjrv
•MM)" ,SM I M 30JI ................. _________
13 EPA farm J700-3OA EPA 'irjuanra
Ao/a*mar«/A/iiai«»M»ri." (S»a 1 30 XO\
TO EPA Form S700-7O8 Auauanc* Armnl
mart (Opaanafl.- ISM I XXV ..... ._ .....
(4) EPA Form 5700-30 PfwKcaun lor
Fadaraj '•••HI lOpeonaA.' (Sa*
I30JO2) ________________ ........ .........
' 3010-000*
' 2010-0004
' 2010-0004
" 2010-O004
Agptuoon Kir EPA ajaaianca tra aopaunon
raiaiad torn*
131 EPA Form STOO-31 "Appacaoon lor Fooar
a: AaMlanoa iSfon Formi (SM I X 3021
161 EPA Form iroo-tt Apcacaton lor F*oar.
at Ajaaunca (Cormrunonl/' |Sa*
I X 3021
m EPA Form 3700-33 "Appacuon tar Fvdar.
• Aaaauano* INonoonarjunon Program."
IS** | 30.307)
(B) EPA rirajaanrfl Forma:
(a) EPA Form 3770-3 Tiao.amp App*.
eaoorv- |Sa* | X.307)......
(D) EPA Form 3770-1 Tuau»r»«j FacaV
130 TO) - -
(cj EPA Form 577O-4 'Tartovarta) Appa>
I M xas .'.
10) EPA Form 377O-J
CarrAaaort • (Sa* 130J07)
l*i EPA Form 4770-a T.
Aiianunair' (Sa* IX.30D....
IT) EPA Form 3770-7 "f
ton Noao*' (Sa* < X 307)
Ij) EPA Form 3770-4
nHrjrr [S*« t X XT)
(h| E."A Fonr. 3770-S -£PA f
Tatmnaaon Moooa" (Sa* » X X2>
19) SF 2»a fVwMrai SBM* FUpon.' I.SM
| X SOSI
(101 SF-I70 Ttvauaal tar Aownoa or Aam.
txnamanr- iSa* 1X400)
(Ml .SF-2'1 tXuay Rapon and Raojm tar
RaaTOi^WTWn Mr Conavucfjon ^oojrarm"
CW* i X 5331 -
(171 Sf-273 F*r>*rai Caan Tiaraacmna
Bapon- ISM | X.400)
oua
wvino
Ho.
ill Eiucun • ueirai*, Mr*. *ccouit < rrw
(7) E*t*»*iri oftatf r«corm tor
for icvcrferj
roio-ooos
2010-0003
< 2010-0004
' Ml 0-0004
•2010-0004
•7010-0004
•2010-0004
< 2010-0004
•2010-0004
• 70'0-OOO4
• 2010-0004
• 2010-0004
' 7010-0004
• :oio-ooo4
• 2010-0004
' 2010-0004
•2010-0004
Aopkuurt -or EPA cununo* *M acOCJDort
(31
K>«> of am <»<• to out-oKomroi
oorxjrjora or maftOTcaorv ................... . ............
(4f SjvnM mrjnm *nrj An*] prrjojr*u r»oom '
151 nnoon •) iiinnuKU )l Olrjia «rm EPA '
O4JB
"
IS) FUpcfl on ai f
uaad on a praract..
O) Cam»> •«" EPA p**r md *am»ir>n*r*
(101 Obun EP»r.«m«r\ runoruioon u UM
tar mnavucaon. oonuuraon-raiatad acuv* 1
(II) Otjtam EPA'< aoprom baaor* ourow^mq |
ooal or tlO.OOO or mqr*
(17) Compv «rff> oanarn proa)*n> marcg*. |
2000-0400
7010-OOO*
I'l
• 7010-OOM
•2010-0004
('!
• 2010-OOO4
po*rg 01 prap*ny «.»> a pwma* om o>
11.000 or rr«x» ...................... --------
(14) Obarn EPA njrjrnm for
(131 Comply fm EPA >«x»*r>wtai tor /nan- 1
atfamam ol Fauarairy rj^r^d uuparry - ,
(1SI niijjin EPA appnm to mnara irom
EPA
(17)
> ort a
'2010
> 2010-OOO4
• 7010-0004
1 2110-OOO4
' 2010-0004
> A10-0004
> 2011-OOO4
• QMS Oanncrj rtireaf moooci >u vjfimnM :o
O48 tar a nriia aranann on SaoMrrC* <9 <9*J wa -~
puon OUB'i a«i»na«
-------
Federal ?»3stn: / Vol. 49. No. 192 / Tuesday, October Z. 1984 / Rules and Regulations 38943
This amendment illustrate* the
amended provision in Fiuure ft-8 Typical
the Manual on Uniform Traific Control
Devices as amended herein.
Application—4-lane divided highway
where one roadway it dosed. Section
6C-1 is being revised to direct attention
to this and other typical applications of
channelizing devices.
This amendment imposes no
additional costs.
Deffirred Actions
Act:on on the following requests
propose-i in Docket No. 83-25 are heing
deferred pending avRilabtiity of
additional research or study data:
(11 Request Q-I (Chng.)—Soecific
Service Signs
(21 Request 11-60 (Chrm-r—Preferential
Lane Signing and Marking
(3| Request 11-85 (Chng.)—Service
Signing for Liquefied Petroleum Gas
(•«) Request 11-67 (Chng.)—Delete/
Modify LIMITED SIGHT
DISTANCE Sign
15) Request U-re (Chng.)—Supplemental
Guide Sign* for Traffic Generator*
Adjacent to Freeways
(6| Request U-77 (Chng.)—Guidelines far
Selection of Control Cities
(7) Request U-78 (Chng.)—tibrary
Symbol Sign
(8) Request 1J-83 (Chnn.>—Memorial
Signing for Highways,
19) 'Request 0-84 (Chng.}—Trail Markers
on Interstate* ,..-.
(10) —Chevron
Marker
(13) Request Vl-24 (Chng.)—Mimnum
Lamp Cacxilepownr of Arrow Panel*
Denial Action*
Based on comments received frrnri
FHWA Docket 83-28, lie FHWA has
determined to deny the following
request:
Request VI-21 (Chng.)—Minimum
Mounting Height of Barricade
Warning Lights
This proposal would have permitted
the mounting of barricade lights in the
top rail of barricade*.
Information made available during
rulemaking indicate* that this proposal
is not needed because-manufacturers no
longer produca barricades with lights in
the rail. The FHWA is withdrawing
further consideration of this request.
In consideration of the foregoing and
under the authority of 23 U.S.C. 109(d).
315. and 402(a|. and the delegation of
authority in 49 CFR l-48(b). the Federal
Highway Administration hereby adopts
The Federal Highway Administration
has determined that this document
contains, neither a major rule under
Executive Order 12291 nor a significant
rule under the regulatory policies and
procedures of the Department of
Transportation. As stated herein lha
economic impact of these amendments
is so minimal as not to require
preparation of a full regulatory
evaluation. For the same reasons and
under the critena of the Regulatory
Flexibility Act. it is certified that this
action will not have a significant
economic impact on a substantial
number of small entities.
List of Subjects in 23 CFR Part 025
Design standards. Grant programs-
transportation. Highway and roads._
Signs. Traffic regulations. Incorporations
by reference.
PART 625— DESIGN STANDARDS FOR
HIGHWAYS
The FHWA revises | aZ5.3
-------
Feder-.:
Vol. -»9. No. 192 / Tuesday. Ortobnr
TUMMAirr "^is d-curv nt rorrtcL' the
final General Regi, :ion for Assir'jnrr
Programs , } CFR Part 30) that appeared
P' Jge 45O58 in the Feoeral Register of
r-iuay. September 30. 1983. [48 FR
'.' '56). This action is necess- :c:
1. Clarify the record keepi.
.squire-, nts in } 30.500(a](5; .or
recipienu subject to OMB Circular A-
110;
2. Clarify what constitutes acceptable
time records for recipients subject lo
OMB Circular A-21:
3. Incorporate the new requirements
of OMB Circular A-124 on patent rights:
•'.. Reference the revised OMB Circular
A-l2i
3. Incorporate cross references to the
Federal Acquisition Regulation: and
ft. Correct typographical and other
erran in the final rule.
FO« PUKTHOI INFORMATION COMTACT:
Richard A. Johnson. Grants
AdminiitratioD Division (PM-Z16),
Environmental Protection Agency, 4O1 M
Street SW, Washington. D.C 2O460.
(202)382-5290.
SU**UMENT AMY MFOiniATKMC In
addition to correcting typographical and
other inadvertent erron in the final rule.
thii document makes the following
change*.
Section M3O8 Incurring costs.
We revised } 30.308 to allow
recipienu to incur costs between the
• date the award official signs the
assistance agreement and the date the
recipient sign* the agreement provided
tha costs are identified in the agreement.
We made this change because there are
many instance* when recipients need to
Incur costs before both parties sign the
agreement. This provision was in the
EPA's former general grant regulation
and was Inadvertently deleted from the
final rule.
Sections 30.410 and 30.001 Definition
of "lobbying."
We revised these sections to reference
OMB's revised definition of "lobbying"
in OMB Circular A-122. Attachment B
(49 FR 18260. April 27. 1964).
Section 30.500 Time records for
institutions of higher education.
We revised { 30.500(a|(5) to state that
Institutions of higher education may
account for,the distribution of salaries
and wages of professorial or
professional time spent on a particular
assistance program by budgeted
planned, or assigned activity if the
system used for wages and salaries
meets the requirements in OMB Circular
A-21, Transmittal Memorandum
Number 1. July 23. 1982.
Sections 30.50!*. OO.I.'OJ. Jfi ;;:'.'. and
30.1103 Patent rer]uirpmcri:s
We revised thp«c sections lo refert'v.c
the changes :u OMB Circular A-124 and
to r' :.gt 'h • references for patent
r-'iiiirement.-i :or pro.it making
orga tizations lo the new federal
Acquisition Kcvmafion. These changes
make it clear iiijt each assistance
award is sub|ect to (he patent clause in
OMB Circular A-124. Attachment A.
Section 30.505 is changed to delete the
requirement that recipients submit
periodic invention reports whether or
not the recipient has any inventions to
report, but still requires that recipients
report all inventions.
Section 30.532 Personal property
requirements.
We revised ] 30.532 to make it clear
that nonprofit institutions of higher
education conducting basic or applied
research and non-profit organizations
whose primary purpose is the conduct of
scientific research are not required to
follow the personal property disposal
requirements in } 30.532. This change is
made to comply with the requirements
in OMB Circular A-110. Attachment N.
Dated: September 13, 1984.
Howud M. MmuMf.
Assistant Administrator for Administration
and Resources Management.
Accordingly, the following corrections
are made in FR Doc. 83-26453 appearing
on page 45058 in the September 30. 1983.
issue:
1. On page 45082. the tiUe of i 30.518
is changed to read: What are the
procedures for publishing scientific.
informational, and educational
documents?
2. On page 45082. the title of } 30.900
is changed lo read: What measures may
EPA take for non-compliance?
3. On page 45062. \ 30.905. the title is
changed to read: May I request a review
of a termination or annulment?
4. On page 45062. the title of 5 30.1001
is changed to read: Will EPA approve
any exceptions to these regulations?
5. On page 45082. i 30.1220. the word
"proposed" in the title is changed to
"finaL"
8. On page 45082. 5 30.1225. the word
"proposed" in the title is changed to
"final."
130,102 (Corrected)
7. On page 45063. i 30.1C2(g). add a
comma after the word "Compensation."
) 30200 (Corrected)
8. Cm page 45063. 9 30.200. the
definition for "Continuation award" is
revised to read as follows:
Contii"iat!'~r Award. An assist.'incp
j:;reerii':ii ,'icr (he ini'inl award, for a
proiec! whicj !.js more lhan one buriijot
period ;n ita ;-proved prcjuct pcrujd. or
...•"in..i aw;.'d.'. after the first iiw:irj, lo
£' j'?. .'nleritji:. or ;ocal aat'.-.cies r'ir
C'jr-.;iriuing environmental progr.irns (soe
\ :n.306|.
J. On pnge m;*"). $ 30.200. tr.R '..I'r; of
the definition of Foreign Brents is
changed to foreign nu.-
-------
rm'.eral Rggistur / Vol. 49. No. 192 / Tuesday, October 2. 1984 / Rules and
380*
(j| Time records and ol.'.cf jupporling
data. Institutions of hiiiiier euixation
muy.accuunt for 'Jie dislrilmliun of
salaries and wages of prnfcsscrial or
professional staff by budgeted. pUnned.
or assignad work activity if the system
for wages and jalaneu meets the
requirements in G\fB Circular A-21:
5 50.501 (Corrected!
19. On page 45067. 5 30.501(d|. line
one is changed to read: "(d) If Jiligatioa
a claim, a dispute under Subpart L.
or * • *."
20. On page 4S067. 5 30.501(d). line
five, substitute the word "dispute" for
the word "appeal."
} 30.503 [Corrected!
21. On page 45067. } 3O503(e). line
three, add the word "treatment" after
the word "wastewater."
}30.SOS (Corrected)
22. On page 45068. } 30.50S(b). line
four, add the word "and" after the word
"period."
23. On page 45068, 5 30.50Sjre •;;' tr,?
current fair market value. [; you da not
want to keep the property, your project
officer will give you instructions for
disposition."
30. On page 45070. 5 30.532(c). first
line, is changed to read: "If. at (he end of
your project, you
3 30.535 (Corrected)
31. On page 45070. } 30.535(b). the
reference to paragraph "[e]" in the first
sentence is changed to reference
paragraph "(f)".
32. On page 45070. | 30.535ie on Ote UM
of aeeietence funde tor e^pocecy
purpoeee?
(a) You may not use assistance funds
for
(1) Lobbying or Influencing legislation
before Congress:
(2) Partisan or political advocacy
purpose* or
(3) An activity whose objectives could
affect or influence the outcome of an
EPA regulatory or adjudicatory
proceeding.
(b) For nonprofit recipient
organizations other than educational
institutions. EPA will implement
S 30.801(a| (1) and (2) consistent with
ihe requirements of OMB Circular A-
122. as revised (see $ 30.4'.0|c)J.
HQ. On page 45072. 5 30 TOO Ihe title ii
changed lo road "5 30.900 What
ireasures may EPA lake for non-
compliance?"
•10. On page 45072. 5 30.900. the first
paragrapli is changed by delelinq Ihe
word "sanctions" (rom ihe fourth line.
41. Cn page 45072. i 30.9OO|e) is
revised to read as follows:
5 20.900 What mvasurm may EPA tafce tor
non-eompilence?
(e) Request that the Director. Grants
Administration Division, debar or
suspend you as an eligible recipient
42. On page 45073. J 30.905 Is changed
to read as follows:
} 30.905 Hey I requed (review of a
termtoetlon or era«*ment?
You may request a review of EPA's
decision to terminate or annul an
assistance agreement. Within thirty
days after the notice of termination or
annulment Is iwued. you must file a
written request for review to the
appropriate Assistant or Regional
Administrator. Yonr request for review
must follow the procedures under
Subpart L of this part.
130.906 (Corrected!
43.'On page 45073, 5 30.906, the
second line of the title is changed to
read suspension or debarmentT"
{30,100 [Corrected]
44. On page 45073. } 30.1001. the title
is changed to read: "Will EPA approve
any exception* to these regulations?"
45. On page 45073. | 30.1001(c). the
word "grant" in the third line h changed
to "awsrds".
(30.1005 (Corrected)
46. On page 45073. | 30.1005. the title
is changed to read: "May I request a
review of a deviation decision?"
47. On page 45073. i 30.1006. the first
line is changed to read: "You may not
request a review of a deviation.
{30.1101 ^[Corrected!
48. On page 45073. | 30.1101(a). Ihe
fourth and fifth lines are changed to
read: of. and must comply with
35 U.S.C. Chapter 18 (1BB2). and th*
patent rights clause in OMB Circular A-
124. Attachment A (40 FR10303).
49. On page 45074, 5 30.1101(b). the
last sentence is changed to reed: "See
Federal Acqeuition Regulation 48 CFR
Part 27 and 48 CFR | 52-227-13 (49 FR
US72]."
83
-------
38946 Federal Register / Vol. 49. No. 192 / Tueaday, October 2. 1984 / Rules and Regulations
50. On page 45074. 5 30.1101(c|. the
last two lines are changed to read:
..... with 35 U.S.C Chapter 118 (1982)
And the patent rights clause cited in
5
of an Award Official's written final
decision . . "
IF* Doc M-U piimp
is visually inspected as often as
practicable and at least monthlv
561.242-3 [Corrected!
8. On page 23515. column ore.
i 61.242-3: paragraph (e](!) is coi-recleu
to read: "le)(l| Each sensor as required
in paragraph (dl of this section shall be
checked daily or shall be equipped with
an audible alarm unless the compressor
is located within the boundary of dn
unmanned plant site."
561.242-4 [Corrected I -
7. On page 23515. column :wo.
5 81.242-4: paragraph (b)(l| is corrected
by adding the following .vords to :he
end of the paragraph ". except as
provided in 3 81.242-10."
§61-242-1 [Corrected I
8. On page 23516. cclumn two.
5 81.242-8: the phrase " except as
provided in J 61.242-Hc)." is jddjd ,H!
the end of paragraph (a).
561J42-9 (Corrected)
9. On page 23519. column two
5 61.242-9: the phrase ". except as
provided in \ 81.242-Kc)." is added at
the end of paragraph (a).
561.242-11 [Corrected I
10. On page 23516. column three.
3 61.242-11; the phrase ". except as
provided in § 61.242-1 (c)." is added at
the end of paragraph (a).
} 61.242-11 (Corrected)
11. On page 23516. column three.
§ 61.242-11. paragraph (d](l|: "1
consecutive hours" is corrected to read .
"2 consecutive hours."
561.245 (Corrected!
12. On page 23518. column one.
5 61.245. paragraph (b)(4)(i): "3ppm ' is
corrected to read 10 ppm.
13. On page 23518. column one.
5 61.245. paragraph (c](4): "655 upm" is
corrected to read "500 ppm."
14. On page 23513. column two,
} 61.245. paragraph (e)(3); "K = constant.
1.74X10' is corrected to read
"K--constant. 1.74x 10 '•••".
15. On page 23519. column one.
3 61.246; paragraph (e)(l) is revised as
84
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40 CFR PART 32 -
DEBARMENT AMD SUSPENSION UNDER EPA
ASSISTANCE PROGRAMS
- vii -
85
-------
Friday
February 21, 1986
Part V
The President
Executive Order 12549—Debarment and
Suspension
Office of
Management and
Budget
Guidelines for Nonprocurement
Debarment and Suspension; Request for
Comments
-------
F '"'" """""
Presidential Documents
21.
T'I|L' 3— Executive Order 12S49 of February 18. 1986
The President Debarment and Suspension
By ihe authority vested in me as President by the Constitution and laws of the
United States of America, and in order to curb fraud, waste, and abuse in
Federal programs, increase agency accountability, and ensure consistency
among agency regulations concerning debarment and suspension of partici-
pants in Federal programs, it is hereby ordered that:
Section 1. (a) To the extent permitted by law and subject to the limitations in
Section !(c|. Executive departments and agencies shall participate in a
system for debarment and suspension from programs and activities involving
Federal financial and nonfmaccial assistance and benefits. Debarment or
suspension of a participant in a program by one agency shall have govern-
ment-wide effect.
(b) Activities covered by this Order include but are not limited to: grants.
cooperative agreements, contracts of assistance, loans, and loan guarantees.
(c) This Order does not cover procurement programs and activities, direct
Federal statutory entitlements or mandatory awards, direct awards to foreign
governments or public international organizations, benefits to an individual as
a personal entitlement, or Federal employment.
Sec. 2. To the extent permitted by law. Executive departments and agencies
shall:
(a) Follow government-wide criteria and government-wide minimum due proc-
ess procedures when they act to debar or suspend participants in affected
programs.
fb) Send to the agency designated punuant to Section S identifying informa-
tion concerning debarred and suspended participants in affected programs.
participants who have agreed to exclusion from participation, and participants
declared ineligible under applicable law. including Executive Orders. This
uifurmsticir shall be included in the list to be maintained pursuant to
Section 5.
(c) Not allow a party to participate in any affected program if any Executive
department or agency has debarred suspended, or otherwise excluded (to the
extent specified in the exclusion agreement) that party from participation in
an affected program. An agency may grant an exception permitting a de-
barred, suspended, or excluded party to participate in a particular transaction
upon a written determination by the agency head or authorized designee
stating the reason(s) for deviating from this Presidential policy. However, I
intend that exceptions to this policy should be granted only infrequently.
Sec. 3. Executive departments and agencies shall issue regulations governing
their implementation of this Order that shall be consistent with the guidelines
issued under Section 8. Proposed regulations shall be submitted to the Office
of Management and Budget for review within four months of the date of the
guidelines issued under Section 6. The Director of the Office of Management
and Budget may return for reconsideration proposed regulations that the
Director believes are inconsistent with the guidelines. Final regulations shall
be published within twelve months of tha date of the guidelines.
Sec. 4. There is hereby constituted the Intermgency Committee on Debarment
and Suspension, which shall monitor implementation of this Order. The
87
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federal Regular / Vol. 51. No. 3S / Friday. February 21, 19H8 / Pte«iO«nv.ai
ttl't
rv.ies designated by
Corr.«ri«toj» shall consist of repr»«ntativ«»s of
Director of the Office of Management and Budget
Sec. 5. The Director of the Office of Management and Budget ihall designs^ a
Federal agency to perform the following functions: maintain a current list of
all individuals and organizations excluded from program participation under
this Ordsr, periodically distribute ihe list to Federal agencies, and study the
feasibility of automating the list, coordinate with the lead agency responsible
for government-wide debarment and suspension of contractors; chair the
Inleragency Committee established by Section 4; and report periodically to the
Director on implementation of this Order, with the first report due within :wo
years of the date of the Order,
See. 6, The Director of the Office of Management and Budget it authorized «o
issue guidelines to Executive departments and agencies that govern which
programs and activities are coutred by this Order, prescribe govemment-w\,!e
criteria and government-wide minimum due process procedures, and set for'.h
other related details for the effective administration of the guidelines.
S«c. 7. The Director of the Office of Management and Budget shall report :u
the President within three years of the date of this Order on Federal dgem.y
compliance with the Order, including the number of exceptions made unU-r
Section Zicl and shall make such recommendations as are appropriate further
to curb fraud, waste, and abuse.
in Doc.
filrd X-19-40; l&JM in)
Billing code J18S-0] -M
THE WHITE HOUSE.
February 18. 1986.
VjL*-iXK~.
88
-------
6372
Federal Register / Vol. 51. No. 35 / Friday. February 21. 1966 / Notices
OFFICE OF MANAGEMENT AND
BUDGET
GuMeUnn for Nonprocur*m«nl
Oebarm«nt and Suspension
AGENCY: Office of Management and
Budget.
ACTIONS Nonce.
SUMMAMV: This Nonce contain* a draft
memorandum to executive department*
and agencies setting forth guidelines
called for in Section 6 of Executive
Order L2S49. "Debarment and
Suspension." The Notice seeks public
comment on the proposed guidelines
and asks for special public attention lo
several areas.
OATC To be assured of consideration.
comments on the proposed guidelines
must be in writing and must be received
by April 22. 1988.
ADOBES* Barbara F. Young-Kshlow.
Grants Management Financial
Management Division. Office of
Management and Budget Room 10215
New Executive Office Building.
Washington. DC 20503.
FOR FURTHER INFORMATION CONTACT:
Barbara F. Young-Kahlow, Grants
Management. Financial Management
Division. Office of Management and
Budget. Room 10215 New Executive
Office Building. Washington. DC 20503.
Telephone • 202-395-3050.
SUPPLEMENTARY INFORMATION:
Executive Order 12549 "Debarment and
Suspension." was signed by President
Reagan on February 18.1986. Section 6
of the Order states that 'The Director of
the Office of Management and Budget is
authorized to issue guidelines to
Exc-ni'we departments and agencies
that guv err. which programs and
activities are covered by this Order.
prescribe govemmentwide criteria and
governmentwide minimum due process
procedures, and set forth other related
details for the effective administration
of the guidelines."
As part of the Administration's
initiatives to curb fraud, waste, and
abuse, the President') Council on
Integrity and Efficiency created an
interagency task force to study the
feasibility and desirability of a
comprehensive debarment and
suspension system encompassing the
full range of Federal activities. The Task
Force concluded, in iu November 1982
report, thai such a system was desirable
and Feasible.
As a muit the Office of Management
and Budget (OMB) established an
interagency Task Force on
Nonprocurement Suspension and
Debarment. The Task Fore*
recommended, in its November 1984
report, that a goveramentwide
Qonprocurement debarmeat and
suspension system, similar to that
currently in effect for procurement be
established Thia coold b« the 6rat step
towards a comprehensive system.
including both procurement and
nonprocureraent.
The proposed OMB guidelines cover
the subjects indicated in Section 6 of
Executive Order 12549. including: scope.
govemmentwide criteria, and minimum
due process procedures. They are
prepared in regulation format to
facilitate their use by the executive
departments and agencies in preparing
agency regulations called for by Section
3 of the Order.
The Task Force on Nonprocurement
Suspension and Debarment considered
many issues in developing the proposed
guidelines. It concluded that the system
should be as compatible as possible
with the procurement debarment and
suspension system inUuded in the
Federal Acquisition Regulation (FAR).
while fully addressing the needs and
concerns of nonprocurement programs
As a result, the guidelines generally use
the due process procedural structure of
the FAR. Also, the proposed grounds for
debarment and suspension are
substantially similar to those in the
FAR. The proposal combines the criteria
common to the existing agency
nonprocurement regulations with the
criteria in the FAR.
The Task Force further concluded that
each agency should issue its own
regulations governing implementation of
the Order, consistent with the OMB
guidelines. This approach would
facilitate, where possible, integration of
the nonprocurement procedures into
each agency's existing procurement
system.
OMB and the interagency Task Force
invite comments on all aspects of the
proposed guidelines. In particular,
comments are encouraged in the three
areas described below, scope.
Donperformance as criterion for
govemmentwide debarment and access
to the list of excluded parties.
Scop,
A wide range of options was
considered in determining the scope of
the proposed nonprocurement
debarment and suspension program.
There are a number of factors related to
both the breadth and depth of coverage
which may be appropriate for comment
For each of these factors there is a
variety of possible options, as illustrated
on the following chart. The range of
options presented is not all-inclusive.
For eacb factor, the options represent
pouits on a continuum: in most cases,
other points could also bave been
selected. Generally, the factors are not
interdependent: the choice of the option
providing broad coverage (column C) for
one factor does not dictate a similar
choice for another factor.
89- -
-------
FACTORS
o.
1. What types of
programs' should be
covered?
2. To what extent
should lower tier
subagreements be
covered:
a. Under discre-
tionary programs?
b. Undr>r statutorlly
mandated (entitlement)
awards?
3. Should there be
dollar thresholds for
coverage?
4. To what extent
should employees of
assistance partici-
panta be covered?
5. With regard to
dollar thresholds and
employment, what types
of costs should be
covered?
wixma COM iue-«i-c
EXTENT OF COVERAGE
COLUMN A — NARROW
Direct Federal financial
assistance (e.g.. grants,
cooperative agreements,
loans, scholarships,
fellowships, contracts of
assistance).
No oubagrcempnt coverage.
Yes, cover only Federal
award and subagreement
transactions greater than
$25,000 or a higher level.
Do not cover employment.
Direct charo'is only.
COLUMN B — MEDIUM
All Column A programs plus other
Federal assistance and indirect
financial assistance (e.g.,
insurance, loans and loan
guarantees placed by banks and
intermediaries).
Include all subagreenients
which require Federal approval
or which involve substantive
programmatic work.
Yes, cover only those greater
than $10,000.
Cover "key" employees.
Direct charges only.
COUIMN C — BROAD
All Column A and Column B :
programs plus other
nonprocurement activities,
including technical
assistance, technical
services, Federal employ-
ment, licenses, permits,
regulatory activities.
Include all subagree-
ments at any tier.
8.
3.
?o
<
o
CL
0»
No, cover all Federal
award and subagreonent
transactions regardless
of dollar level.
Cover all employees.
CO
s
o
Direct as well as
indirect (overhead)
charges.
2
-------
63 T
.Federal Register / Vol. SI. No. 35 / Friday. February 21. 1986 / Notices
The proposed scope embodied in the
CM8 guidelines represents the following
choic.es on the chair
I Prrs.-jm coverage Column 8
2 l^wer Her awards:
a Discretionary Column C
b Entitlement Column C
3 Threshold]— Column C
4 Employee! Column B
5 Typ« of cosu - Column B
T'vo other altemalives, representing
the exlremes of possible options, would
be:
A. Only cover large Federal awards of
grants and cooperative agreements. This
option would represent the following
choices:
1 Program coverage.. - Column A
2 Lower tier awards:
• Oiicretionary Column A
b Entitlement Column A
3. ThrMholds Column A
4 Enploye*j Column A
5 T>pei of costs .'. Colurr.n A
B. Cover all Federal nonprocurement
programs (except where prohibited by
statute), all subtler agreements and
expenditures whether or not the first tier
awards were excluded, regardless of
size or type of cost, and all personnel
working in the program without regard
to the nature of the position This option
would represent the following choices:
Column C
Column C
Column C
' Column C
Column C
Column C
coverage
3 Lower t:er awards
a Discretionary
b Entitlement
3 Thresholds
4 Employees
5 Types of coils
N'onperformance as Criterion for
Coveraraentwide Debarrnent
The criteria proposed for a
fjovernmentwide debarment or
suspension include willful or material
failure to perform, similar to the FAR.
Another option would b« for actions
based on willful or material
nonperforman.ee to be included on the
governmentwide list but flagged BO that
each agency could determine whether
that party should be excluded from its
programs, i.e., not necessarily have
govemmenrwide effect This option is
based on the belief of some that the area
of acceptable performance under
assistance ii too subjective to impose a
governmentwide debarment and
suspension on the basis of a single
agency's experience. Those who
disagree w:ih this criterion for
governmentwide debarmenl raise the
following question. Should a recipient or
third party contractor who performs
very well under one agency's assistance
programs but poorly under the
assistance programs of another agency
be automatically debarred or suspended
governmentwide? Those who agree with
this cntehon for governmentwide
debarment believe willful, material or
historical nonperformance anywhere
should be controlling, as is the case for
all other criteria for governmentwide
debarment. Such nonperformance has
long been a factor in procurement
debarmenls
Access to the List of Excluded Parties
The means of providing access to the
consolidated list to recipients and lower
tier participants to enable them to fulfill
their obligations under the program is
still undermined. There are a number of
different approaches currently in use in
the existing Federal assistance
debarment programs and the Federal
procurement debarment programs.
These include, among others:
1. Periodic distribution of a hard copy
of the list to an agency in each state for
inquiry by other agencies, recipients and
participants in the state. - -••
2. Periodic distribution of a hard copy
of the list to all recipients for their direct
use (free or by paid subscription).
3. Federal agency retention of the list
for inquiry by ail its recipients and
participant
4. Maintenance of the list on a
computer which can be dialed up by all
recipients and participants, under
funding arrangements with the awarding
agency.
Access through an "800" telephone
numbers) is a possible enhancement to
these approaches.
In addition to these methods, more
technologically advanced approaches
have been suggested such as
automated, computer-voice response
capability on an "800" number. A
numerical identifier (eg.. Employer
Identification Number (E1N)) for every
party on the list would be needed and
would have to be known to the inquiring
recipient or participant.
Comments are invited on what means
of access is regarded as minimally
acceptable and what would be
considered as most desirable.
loseph R. Wnjbt ]r_
Deputy Director.
DRAFT
EXECUTIVE OFFICE OF THE
PRESIDENT
Office of Management and Budget
MEMORANDUM TO THE HEADS OF
EXECUTIVE DEPARTMENTS AND
AGENCIES
Subject: Govemraentwide
Nonprocurement Debarment and
Suspension System
On February 18.1988. the President
signed Executive Order 12549. The
Order directs Federal executive branch
departments and agencies to participate
in a system for nonprocurement
debarment and suspension under which
an agency's debarment or suspension of
a nonprocurement program participant
will have governmentwide effect
Pursuant to Section 6 of the Order, the
attached OMB guidelines prescribe the
scope, governmentwide criteria,
minimum due process procedures, and
other guidance for this system. The
guidelines are prepared in regulation
format to facilitate their use in preparing
agency regulations.
Section 3 of the Order directs agencies
to issue regulations to implement the
system. Proposed agency regulations.
which are to be consistent with these
guidelines, should be submitted to OMB
for review no later than four months
from the date of this memorandum in
accordance with Section 3 of the Order
Please submnit a copy after Federal
Register publication to [lead agency.
Attention: ].
Further information regarding
implementation of the Order may be
obtained from the Grants Management
staff. F--.aJicia! Management Division, at
395-3050.
DcpL-tv Director.
»
Attachment.
PART —GUIDELINES FOR
GOVEflNUENTWIDE
NONPROCUREUENT OEBARUENT
AND SUSPENSION
Subpart*
S«
.100 Purpose.
.105 Authority.
.110 Scopa.
.115 Policy. »
120 Definitions.
Subpwt B—effect of Action
.200 Debarment or iuip«niion
91
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Federal Register / Vol. 51. N'o. 35 / Friday. February 21. 1986 / N
6375
_ .2tW Vilunury exclusion.
_ 210 Ir.e!ig:ble pcncri.
_ .215 Exception promioa
_ .220 Coniinyalion of current awara«.
_ .225 Failure to adhere to restriction!.
Subptrt C— 0*towm«m
_ 300 General. ^
_ 305 CUiun for debarment.
_ 310 Procedures.
_ .315 EJTtct of prcpo«d debarmem.
_ 320 Voluntary exdysion.
_ .325 Period of determent
_ .330 Scope of debarmenL
Subpwt 0— SucpcntJon
_ .400 Central.
_ .40$ C«u««i for lutpenston.
_ .410 Procedures.
_ _ 415 Period of suspension.
_ *20 Scope of suspension.
Authority: _ .
Subpart A — General
}
.100
(a) These guidelines implement
Section 6 of Executive Order 12549 by.
(1) Prescribing the oonprocurement
program and activities that are covered
by the Order:
(2) Prescribing the govettunentwidt
catena gad govenunentwide minimum
due process procedures that Federal
agencies shall use in implementing the
Order;
(3) Providing for the listing of
debarred and impended participant*.
participants who voluntarily exclude
themaelvei from participation in
assistance transactions, and
participants declared ineligible (see the
definition of "ineligible" in | _ .120);
(4) Selling forth the consequence! of
the actions under paragraph (a)(3J of
this section:
(S) Offering such other guidance as
necessary for the effective
implementation and administration of
the Order.
(b) Although these guideline* cover
the listing of ineligible participant* and
(he effect of such listing, they do not
prescribe policies and procedures
governing declarations of ineligibility.
(c) The procedures set forth in
i i _ .310 and _ .410 are the
minimum due process) procedure* which
agencies must follow. However.
agencies are free to supplement them in
any way not inconsistent with those
sections,
} _ IDC Authority.
(a) These guidelines are issued
pursuant to Executive Order 1ZS4B of
February 18, 1966.
| .110
(a) These guidelines apply to
executive branch domestic assistance
transactions described below.
(Ij Covered wjr-,act:ons. Coiered
transactions (w.-.etr.ar by a Federal
agency, recip.un;. subreopient, or
irt'.ermediaryl include, except ai ncted
m paragraph fd](3J of this section:
grants, cooperative agreement!.
scholarships, fellowships, contracts of
assistance, loans, lean guarantees.
subsidies, insurance, payments for
specified use, and donation agreements; .
subawards, subcontracts and
transactions at any tier that are charged
as direct costs, regardless of type
(including subtler awards under award*
which are statutory entitlement or
mandatory awards): and specially
covered activities identified in
paragraph (a)(2) of thia section.
(2) Specially covered activities. In
addition to those transaction* identified
in paragraph (a)(l) of thi* section.
participants in the loan, loan guarantee.
and insurance programs of the
Departments of Agriculture and Housing
and Urban Development and of the
Veterans Administration, and in the
interstate land sales and manufactured
housing programs of the Department of
Housing and Urban Development, and
those in business relationships with
such participant* to the extent of their
connection with such programs, are also
subject to the provision* of these
guideline*, whether or not their
participation involves the actual receipt
of Federal funds.
(3) Exceptions. Statutory entitlement
or mandatory award* (but not subtler
award* thereunder which are not
themselves mandatory), benefits to an
individual as a personal entitlement
without regard to the individual's
present responsibility (but benefits
received in an individual's brumes*
capacity are not excepted), incidental
benefit* derived from ordinary
governmental operation*, and other
transaction* where the application of
Executive Order 12S49 and the**
guideline* would be prohibited by law
are not covered.
(b) Relationship to Federal
acquisition activities. Executive Order
12548 and these guideline* do not apply
to direct Federal acquisition activities.
Debarment and suspension of Federal
contractor* and subcontractors am
covered by the Federal Acquisition
Regulation (FAR), « CFK Subpart 0,4.
However, agenaet are eoemmged to
integrate their administration of tbeae
complementary debsunent and
suspension programs.
{ .ill Postey.
(a) In order to protect the public
interest it is the policy of the Fed end
Government to conduct business only
with responsible person*. Debarment
and juspcnsion are discretionary
actions ihat taken in accordance *i'.h
Executive Order 12549 and these
guideline*, are appropriate means to
effectuate this policy.
(b) Debarment and suspension are
senous action* which shall be used only
in the public interest and for the Federal
Government's protection and not for
purposes of punishment. Agencies may
impose debarment or suspension for the
causes and in accordance with the
procedures set forth in these guidelines.
f .120 DtftBfflensv
Adequate evidence. Information
sufficient to support the reasonable
belief that a particular act or omission
ha* occurred
Affiliate. Person* are affiliate* of one
another if, directly or indirectly, one
own*, control*, or can control another or
they are under common ownership or
control of a third person.
Agency. Any executive department.
military department or defence agency.
or other agency of the executive branch.
excluding the independent regulatory
agenciet.
Autsionc* transaction*. Tbas*
covered executive branch domestic
assistance transaction* denoted by
I .!10(aJW and («)(2).
Consobdattd LJJL A list compiled,
maintained and distributed by [lead
agency) containing the name* and other
information about participant* who
have been debarred, suspended, or
voluntarily excluded under Executive
Order 12549 and these guideline*, and
those who have been determined to be
ineligible.
Control, The power to exercise.
directly or indirectly, • controlling
influence over the management policies.
or activities ot *, person, whether
through the ownership of voting
Kcono.es, through one or more
intermediary persons, or otherwise. For
purpose* of action* under the*«
guideline*. * person who own* or has
the power to vote toon than 25 percent
of the outstanding voting tecuntie* of
another person, or more than 25 percent
of total equity if the other person has no
voting secnritici. is presumed to control.
Such presumption may be rebutted by
evidence.
Conviction. A judgment of conviction
of a criminal offense by tuny court of
cou^toU ^^wdiction. whether entered
upon • verdict or • plea, including * plea
of nolo contender*.
DebaratenL An action taken by •
debarring official in accordance with
agency regulation* implementing
Executive Order 12549 to exclude a
person from participating in •MiaUnc*
C '92
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6376
Federal Register / Voi 51. No. 35 / Friday. February 21. 1966 /' Nolices
tr.i.-v.-tc.'.ions. A person so excluded is
debarred."
DeLcmng official. An e^ency head or
* ties:gnee authorized by the agency
hcflj lo impose dcbarmeni.
Indictment. Indictment for a criminal
offer.se. An information or other filing
by competent authority charging a
criminal offense shall be given the same
effect as an indictment.
Ineligible. Excluded from
participation in Federal assistance
transactions, programs or agreements
pursuant to statutory. Executive order.
ur regulatory authority other than
Executive Order 12549 and its agency
implementing and supplementing
regulations: for example, excluded
pursuant lo the Davis-Bacon Act and its
related statutes and implementing
regulations, the equal employment
opportunity acts and Executive orders.
or the environmental protection acts and
Executive orders.
Legal proceedings. Any criminal
proceeding or any civil judicial
proceeding to which the Federal
Government or a State or local
government or quasi-governmental
"authority is a party. The term includes
appeals from such proceedings.
Sonprocurement. Refers lo activities
of the Federal Government other than
direct procurement of goods and
services for the use of the Federal
Government, including assistance
transactions.
\olice. A written communication
served in person or sent by certified
mail, return receipt requested, or its
equivalent, to the last known address of
a party, its identified counsel, its" agent
for service of process, or any partner.
officer, director, owner, or joint
ven".ir°r Nnhcf. if ^deliverable, shall
be considered to have been received by
the addressee five days after being
properly sent to the last address known
by the agency.
Participant. Any person who submits
proposals for. receives an award or
subaward or performs service* in
connection with, or reasonably may be
expected to be awarded or to perform
services in connection with, a Federal
assistance transaction-This term also
includes any person who conducts
business with a Federal agency a» an
agent or representative of another
participant.
Person. Any individual corporation.
partnership, association, unit of
government or legal entity however
organized, including any subsidiary of
any of the foregoing.
Preponderance of the evidence. Proof
by information that, compared with that
opposing it leads to the conclusion that
the fad dt is.v.ie is more probably tnje
than no1
Proposal. A solicited or unsolicited
bid. application, request, invitation to
consider or similar communication by or
on behalf of a person seeking a benefit
under an assistance transaction.
whether directly or indirectly.
Respondent. A person against whom a
dtbarmerU or suspension action has
been initiated.
Subsidiary: Any corporation.
partnership, association or legal entity
however organized, owned or controlled
by another person.
Suspending official. An agency head
or a designer hulhorued by the agency
head lo impose suspension.
Suspension. An action taken by a
suspending official in accordance with
agency regulations implementing
Executive Order 12549 to immediately
exclude a person from participating in
assistance transactions for a temporary
period, pending completion of an
investigation and such legal or
debarment proceedingj as may ensure
A person so excluded it "suspended."
Voluntary exclusion. A status of
nonparticipation or limited participation
in assistance transaction* assumed by a
person pursuant to the terms of a
settlement.
Subpart B—Ctfect of Action
5 JOO Miarment or suspension.
(a) Except to the extent prohibited by
law. a person's debarment shall be
effective throughout the executive
branch of the Federal Government.
Except a* provided in I 215.
persons who an debarred or suspended
under these provisions are excluded
from participation in all asustanca
transactions of all agencies for the
period of their debarment or suspension.
Accordingly, agencies and participants
shall not make awards to or agree to
participation by such debarred or
suspended persons during such period.
(b) In addition, individuals who are
debarred or suspended are excluded
from participation in or under any
assistance transaction in any of the
following capacities: as an owner or
partner holding a controlling Interest
director, or officer of the participating
person; as a principal investigator.
project director, or other position
involved in management of the
assistance transaction: In any other
position to the extent that the incumbent
is responsible for the administration of
Federal funds; or in any other position
charged as a direct cost under an
assistance transaction.
3 .20$ Voluntary delusion.
Participants who accept voluntary
exclusions under 5 320 are
excluded in accordance with the terms
of their settlements: their listing.
pursuant to Subpart E. is for
informational purposes. Awarding
agencies and participants must contact
the original action agency to ascertain
the extent of the exclusion.
5 .210 IrwtfglMe pwsons.
Persons who are ineligible are
excluded in accordance with the
applicable statutory. Executive order, or
regulatory authority. :-•*
} .215 Eiospttoo provision.
In uiusual circumstances, an agency
may grant an exception permitting a
debarred, suspended, or excluded
person to participate in a particular
transaction upon a written
determination by the agency head or
authorized designee stating the
compelling reason(s) for doing so.
} .220 ' Continuation o< current award*.
(a) Notwithstanding the debarment.
suspension, voluntary exclusion or
ineligible status of any person, agencies
and participants may continue
agreements in existence at the time the
person was debarred, suspended.
declared ineligible or voluntarily
excluded A decision as to the type of
termination action, if any. to be taken
should be made only after thorough
review to ensure the propriety of the
proposed action.
(b) Agencies and participants shall
not renew or extend the duration of
current agreements with any person
who is debarred, suspended, declared
ineligible or under • voluntary
exclusion, except as provided in
i as.
} .223 FsMure to MfMrv to
Doing business with a debarred.
suspended or otherwise excluded
person, in connection with an assistance
transaction, where it Is known or
reasonably should have been known
that the person is debarred, suspended
or otherwise excluded from
participation in such transaction, except
in accordance with these guidelines.
may result In disallowance of costs.
annulment or termination of award.
Issuance of a stop work order.
debarmenl or suspension, or other
remedies as appropriate.
**j i_>
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Federal Reyntnr / Vol. 51. No. 35 / Friday. February 21. 1986 /' Notices
6377
Subpart C—Oe
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6378
Federal Register / Vol. 51. No. 35 / Friday. February 21. 1986 / Notices
;C; Sidling (he period
;r,:luding effective dates; and
[D| Advising lhat ihe debarmem is
effective for assistance transactions
throughout the executive branch of the
Federal Government unless an agency
head or a designee authorized by an
agency head makes the determination
referred to in 5 215.
|u) If the debarring official decides not
to impose debarment. the respondent
shall he given prompt notice of that
decision. A decision not to impose
(Voarrnent shall be without prejudice to
a subsequent imposition of debarment
by any other agency.
§ _ .Hi Elft«t ot proposed deBarrMfrt.
Upon issuance of a notice of proposed
debarment and until the final debarment
decision is rendered, the debarring
agency shall not make any new
assistance awards to the respondent.
That agency may waive this exclusion
pending a debarment decision upon a
written determination by the debarring
official identifying the reasons for dou.g
so. In the absence of such a waiver, the
provisions of J .215 allowing
exception] for particular transactions
may be applied.
§ .320 VohBitsry •xdumxi.
A participant and an agency may
enter into a settlement providing fowhe
exclusion of the participant Such.
exclusion shall be entered on the
Consolidated List (see Subpan E).
§ .32$ POflod of dsttanmnt
(a] Debarment shall be for a period
commensurate with the seriousness of
the cause(s). Generally, a debarment
should not exceed three years. If a
suspension precedes a •Icbannccl the
suspension pe.-iou may UL- ccnsidi:ed ir
determining the debarment penod.
Where circumstances warrant, a longer
term of debarment may be imposed, up
to an indefinite period.
(b) The debarring official may extend
an existing debarment for an additional
penod. if that official determines that an
extension is necessary to protect the
public interest However, a debarment
may not be extended solely on the basis
of the facts and circumstaocea upon
which the initial debarment action was
based. If debarment for an additional
period.is determined to.be necessary.
the procedures of J .310 shall be
followed to exlend the debarment
(c) The debarring official may reduce
the period or scope of debarment upon
the respondent's request supported by
documentation, for reasons such at:
(1) Newly discovered material
evidence:
(2| Reversal of the conviction or
judgment upon which the debarment
was based:
(3) Bona fide change in ownership or
management:
(4) Elimination of other causes for
which the debarment was imposed: or
(5) Other reasons the debarring
official deems appropriate.
} .330 Scop* of dsaariMiiL
(a) Scope in general.
(1| Debarment of a person or affiliate
under Executive Order 12549 constitutes
debarment of all iu subsidiaries,
divisions, and other organizational
elements unless the debarment decision
is limited by its terms to one or more
specifically identified individuals or
organizational elements or to specific
types of agreements.
(2) The debarment action may include
any other affiliate of the participant that
is—
(i) Specifically named and
(ii) Given nonce of the proposed
debarment and an opportunity to
respond (see { .310).
(b| Imputing conduct. For purposes of
determining the scope of debarment
conduct may be imputed as follows:
(1) Conduct imputed to participant.
The fraudulent criminal or other
seriously improper conduct of any
officer, director, shareholder, partner.
employee, or other individual associated
with a participant may be imputed to the
participant when the conduct occurred
in connection with the individual's
performance of duties for or on behalf of
the participant, or with the participant's
knowledge, approval, or acquiescence.
The participant's acceptance of the
benefits derived from the conduct shall
be presumptive evidence of men
knowiedge. approval or acquiescene.
(2) Conduct imputed to indiriduals
associated with participant The
fraudulent criminal or other seriously
improper conduct of • participant may
be imputed to any officer, director.
shareholder, partner, employee, or other
individual associated with the
participant who participated in. knew of.
or had reason to know of the
participant's conduct
(3) Conduct of one participant
imputed to other participants in a joint
venture. The fraudulent criminal or
other seriously improper conduct of one
participant in a joint venture or similar
arrangement may be Imputed to other
participants if the conduct occurred for
or on behalf of the foint venture or
similar arrangement or with the
knowledge, approval or acquiescence of
these participants. Acceptance of the
benefits derived from the conduct shall
be presumptive evidence of such
knowledge, approval or acquiescence
Subpart 0—Suspension
} .400 GanaraL
(a) The suspending official may
suspend a participant for any of the
causes in | .405 using procedures
established in accordance with
{ .410.
(b) Suspension is a serious action to
be imposed on the basis of adequate
evidence of one or more of the causes
set out in 1 .405 when it has been
determined that immediate action is
necessary to protect the public interest.
} .405 C«UM tar siopsnston.
(a | Suspension may be imposed in
accordance with the provisions of
5 { . 400 and 410 upon adequate
evidence:
(1) To suspect the commission of an
offense listed in J . 305 (a); or
(2) That.a cause for debarment under
] .306 may exist.
(b) Indictment shall constitute
adequate evidence for purposes of
suspension actions.
(a) Investigation and referral.
Agencies' shall establish procedures for
'the prompt reporting,.investigation, and
referral to the suspending official of
matters appropriate for that official's
consideration.
(b) Decisionmaking process. Agencies
shall establish procedures governing the
suspension decisionmaking process that
are as informal as is practicable.
consistent with principles of
fundamental fairness. These procedures
shall at a minimum, provide the
following:
(1) Notice of suspension. When a
respondent is suspended, notice shall
immediately b» givea:
(i) That suspension has been impowd;
(ii) That the suspension is bssed on an
indictment conviction, or other
adequate evidence that the respondent
has committed Irregularities seriowiy
reflecting on Ifae pujpiiety of farther
Federal Government dealings with the
respondent
(iii) Describing any such irregularities
in terms sufficient to part the respondent
on notice withoot disclosing the Federal
Government's evidence
(iv) Of the cause(s) relied upon under
{ .405 for imposing suspension:
(v) Thai the suspension is for a
temporary period pending tbe
completion of an investigation and such
legal or debarment proceedings as may
' Q^
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Federal
/ Vol. 51. N'a 33 / Friday, February 21. 1986 / Notices
6379
(i ij Of die p-Gvisior.i af
1 .41(Hb°;iiMi>K3' agency's spuwfic
prueeduras governing suspension
decision dec!SiennuJ<.r.g; and
(viij Of 'h« effect uf the suspension,
(2) Subn'-vxion in opposition. Wilhin
30 days after receipt of ihe notice of
suspension, the respondent may submit.
in person, in writing, or through a
representative, information and
argumenl in opposition to the
suspension.
(1) AddJ(i,::itilproceedings as to
deputed n,o:t:r'al facts,
(i| If it :s found ihnt there exists a
genuine d:iie over fact* material to
the su.-pcrsi-yj. respondents) shall b«
• Horded sr> oppoi-'unity to appear with
couns-jl s-ilinu! documentary evidence.
presem witnesses, end confront any
person the agency presents, unless—
[A) The action in based on an
indictment, conviction or iiidgroent. ar
(B) A determination is marie, on the
basis af Der-rtmcint of Justice advce.
that the substantial interests of the
Federal Government in pending or
con'er.iplated legal proceedings basud
on the same facts as the suspension
would he prejudiced.
fii) A transcribed record of iny
dUditicndl proceedings shall be
prepared and made available at cost to
the respondent, unless the respondent
and the agency, by mutual agreement
waive the requirement for a transcript.
(4) Suspending official's decision. The
suspending official Day modify or
terminate the suspension (for example.
see { 325(c) for the reason* for
reducing the period or scope of
dtbarment) or may leave it in force
However, a decision to modify or
terminate the suspension shall be
without prejudice to the subsequent
ifnpo»<:ton of suspension by any other
agency or debarmem by any agency
The decision shall be rendered in
accordance with the following
provisions:
(i) No additional proceedings
necessary. In actions (A) based on an
indictment, conviction, or judgment. [B)
in which there it no genuine dispute
over material (acts, or (C) in which
additional proceedings to determine
disputed material facts have been
denied on the basis of Department of
Justice advice, the suspending official
shall make a decision on the basis of all
the information in the administrative
record, including any submission made
by the respondent The decision (hall be
made within 45 days alter receipt of any
information and argument submitted by
the respondent, unless the suspending
oiTiciHl extenJi this prnou fur gnoii
f.ause.
(iij Addi.unutprocancJm^s re*.ei*it~y.
|A) In actions in wrunh nddmona!
proceedings are necessary to determine
dispuied material fads, written findings
of fact &haii be prepaid. The
suspending official shall buse the
decision on '.he facts as found, together
with any information and argument
submitted by the respondent and any
other i 'formation in the administrative
record.
(B| The suspending official may refer
matters involving disputed material
facts to another official for findings of
feet. ThR suspending official ir.ay reject
any such findings, in whole or in part
only after specifically determining them
to be arbitrary and capricious or clearly
erroneous.
(C) The suspending official's decision
shall be made after the conclusion of the
proceedings with respect to disputed
facts.
(5) fJouce of suspending tffficial'i
decision. Prompt written notice of the
suspending official's decision shall be
sent to the respondent and any affiliates
involved.
§ .41$ P«rtod ot tusp*mion.
(a| Suspension shall be for a
temporary period pending the -
completion of investigation and any
ensuing legal or debarment proceedings,
unless terminated sooner by the
suspending official or as provided In
paragraph (bj of this section.
[b] If legal or debarment proceedings
are not initiated within 12 months after
the date of the suspension notice, the
suspension shall be terminated unless
an A«;;tajn Attorney Ounenl requests
its extension, in which case it may be
extended for an additional six months.
In DO event may • suspension extend
beyond 18 months, unless such
proceedings have been initialed within
thai period.
(c) The suspending official shall notify
the Department of [ustice of an
impending termination of t suspension.
at least 30 days before the 12-month
period expires, to give that Department
an opportunity to request in extension.
} .4» Scop*Oft
The scope of a suspension shall be the
tame as (lie scope of • debarment (tee
I .330). except that wt procedures
of i .410 shall b« used io imposing •
suspension.
Subp«t E— ComolMatwl U«t of
ONjirrvd, Suspended, Voluntarily
ExduoXd, and Inedible Participants
I __ .500 (U«f *g*nqr|meon*«itW*.
(
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40CFRPART33-
PROCUREMENT UNDER ASSISTANCE AGREEMENTS
37
-------
Monday
March 28, 1983
• 3
3. !l
Part II
Environmental
Protection Agency
Procurement Under Assistance
Agreements
98
-------
12922
Federal Register ,' Vol. 48. No BO / Monday, March 2V,. 19H3 / K-.iir« rind Peculations
ENVIRONMENTAL PROTECTION
40 CFR Part 33
IOA-FHL 2?10-3|
Procurement Under Assistance
Agreements
AGENCY: Environmental Protection
Agency.
ACTION: Final ruie.
SUMMARY: This docc.Tienl mn-i.es ihe
Environmental Pru'.ecliin Agency's Part
33. "Procurement L''irler Assi-iar.re
Agreements." a fi:,j! rule Part M
establishes the rules for all procurement
undertaken by recipients n( EPA
assistance agreements In accurdunce
with OM3 Circular A-102. .-Mtnchmenl
O. and O\f8 Circi'i.ir A-110.
Attachment C !his rule is destined 10
rely heavily on recipients' procurement
systems. Part 33 applies to nil Catalog of
Fed«"al Domestic Assistance f'-ocrums
in the Gfi.OCO series.
DATE: This rule is oifw.tivf (or
assistance agreements which EPA
aw«rrts on and after March 28. 1983.
FOR FURTHER INFORMATION CONTACT:
Richard A. Johnson. Grants
Administration Division [PM-216|.
Environmental Protection Agency.
Washington, D.C. 20460. (202) 382-J296/
SUBPUMENTARV INFORMATION: On
September Ifl, 1981. EPA published in
lh«- r-deral Register (46 FR 45963) a
Nottre of Availability which made a
draft if Bart 33 available for public
comment.
On M^rch 2, 1982. EPA published a
propo«c.d Part 33 in the Fe^»ral Register
(47 FR »960) and on May 12, 1982. EPA
published in the Federal Regipler (47 FR
20J74) an interim-final °9rt 33. The May
12, 1982. interim-final nil? becarre
effective only for EPA's construction
grants program.
On July 8, 1982. EPA reopened the
comment period on Section ^3.240
"Small, minority, women's and labor
surplus area businesses" (47 FH 29fiG8).
The comment period on this sectinn wss
extended 30 days because it
significantly changes EPA's existing
mirinrity business and women's
business policies.
We made numerous editorial changes
throughout the interim-final rule in order
to make this final rule easier to rear) and
understand.
Implementation
Because we published an interim-final
and finsl Pai 33 rule, we have added
thin section to explain when the intenm-
fiml is t>ffor.;ive and whpn ihe final rjle
is effective.
1. If EPA awarded a w.istcwater
IriMtme1-: construction grant under Tnfe
II of ilie Clpan Water Act before May 12,
1982. ti-n recipient has the following
options:
(a) The rrrinipnt may follow the
procurement requirements in effect
when FPA awarded its construction
grant, or
(b) The recipient may follow the
procurement requirements in !he May 12
interim-final ruie. prnvid»d the recipient
completed and submitted EPA Form
5700—»a to the award official before the
effective date "*" this final rule, or
|c) The recipient may follow the
procurement requirements in the final
rul».
2. If FPA awarded a construction
».
proposed P-irt 33 rule [47 FR a^RO) ai a
special condition in each cocoerative
agreement.
Sunerfund awards made after May 12.
W:. ir.clu-fed the interim-final Part 33
(47 F"K 20474) as a special condition in
each coooerafive aCTeement.
Superfund awards made after the
effective date of this final rule arc
subject to the final rule.
* If FPA awarded any other
assistance agreement (other than
construction crants and Superfund
;>wardr.| before t)ie effective date of this
rule, t^ie recipient has the fnllowing
options:
!a! Th» rTioient may follow the
procurement >-eamre'iient3 in effect
when EPA awarded lfc<; assistance
agreement, nr
lh) The recipient may follow the
procnr—lent requirements in the final
rule. T'.e r»rioient must complete the
acproprifl'ri r.;>rt of EPA Form 5700-^8
?nd s'l^Tsit the form to the award
official a« reauirrd :n 5 .*s.'.:•.).
EP \ Form 5700-->) "Prjr.u
System Cert:ficc!'on"
This form implements thp snif-
certification process. Subpart A
'Procurement System Evaluation"
explains how FPA and the recipient w.il
une ;he t'orm. For the rearier'*
conver.:erre. we have included a ropy
of the form after Append:.-. A.
Description of Mujor Is sues
Quality Assurance
On June 14. 1979. EPA established
quiiiity assurance requirements for a/I
EPA extramural proiects involving
environmental measurements. The
oh;ective of !he quality assurance (QA)
program is to ensure that all
environmentally related measurements
whir.h are required or funded by EPA
are scientifically valid, defensible, and
|.T.ed measurements. The reference to
rTA's QA procrani is being added to
5 .111 10:(0. clHi'ie 13, "Resoonsihility of
the Contractnr." paragraph (a), in order
to rr;ake cor.trqclors nware of the policy.
Th" QA req:nrements are specified in
guideline documents available from: Sid
V^rner. Er.vircnmentz! Protnrtion
Agency. Office ot Research and
Development (RD-eflO). 401 M Street.
S.W.. Washington. D.C. 20460, (202) 18?.-
S7S7.
Major Comments Received
We rpcei-'"d over 125 comments on "
'.he March 1, t982. proposed rule. The
preamble to the May 12, 19R2, interim-
final rule addres«t:d some of these
comments in dc'ail. Since EPA's position
on the ISSIIPI dijr.ussed in ihat preamble
is uncKanaed. we have not repealed :'
those discussions here. The following
discussion addresses the other areas ot
the regulation which recoived the
greatest number of comments:
5"cnon 33-005 Definitions.
We reserved the definitions of
minnrily business enterprise (MBE) and
women's business enterprise (WBE) in
the May 12. 1982. interim-final
rejzulal.on. Wp ar» adding those
definitions now.
We received several rnrnments on the
definition of MBE in the September 9.
1981. draft regulation whir.h was made
available to Ihe public for comment by
notice in Ihe FeHeral Register on
Sept'-Tiber 16.1«W! (** FR 45963). That...••,
definition i-sed tha S.-nslI Business .
Administraf'on's ;?D.A) definition of
rpinnnty gr'-up members, w^'rh
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Federal Rngislei
;r / Vol. 48, No. 60 / Monday, March 28. 1983 / Rules-and Regulations
12923
excluded persons from the Indian
subcontinent from the definition of
"Asian American." Because a number of
people from the Indian subcontinent
have participated in EPA's MBE
program for construction grants, we are
now revising the September 9, 1981,
definition to include businesses owned
and controlled by individuals from the
Indian subcontinent. We understand
that the SBA is now considering a
petition to include persons from the
Indian subcontinent in its definition of
"Asian Americans."
We also received comments on the
need for a definition of the terms
"Intergovernmental Agreement" and
"Supplies;" therefore, we added
definitions for these terms.
Section 33.110 Applicant and recipient
certification.
We received questions on the
regulatory authority retained by the EPA
award official when the recipient
certifies its procurement system. To
clarify the authority the award official
retains, we hove added paragraph (e) !o
§ 33.110 "Applicant and recipient
certification."
Section 33.211 Recipient reporting
requirements.
This is a new section which gives the
reporting requirements recipients must
follow even if the recipient.certifies its
procurement system. Paragraph (a)
through (d) of this section lists the
information the Department of Labor
(Dot) requires for each construction
subagreement award which exceeds or
is expected to exceed $10.000. The Dot
requires this information to implement
the Davis-Bacon Act, Copeland
Regulations, Work Hours and Safety
Standards Act, and the equal
employment opportunity requirements in
Executive Order 11246, Executive Order
11375 and DDL regulations in 41 CFR
Part 60. Paragraph (e) of this section
requires that recipients submit to the
award official a copy of the tabulation
of bids or offerers and the name of the
bidder or offerer for each subagreement
the recipient awards. EPA needs this
information to efficiently implement
EPA's debarment and suspension
regulation (40 CFR Part 32 "Debarment
and Suspension Under EPA Assistance
Programs").
Section 33.230 Competition.
We received several comments on the
requirements in § 33.230(c) for the use of
a prequalified list. We allow recipients
to use prequalified lists of persons, firms
or products because they play an
important part in many State and local
procurement systems. However.
because a prequalified list could unduly
restrict competition, we require that
recipients provide adequate public
notice that they are maintaining a
p.-eq^dlified list, that the recipient
update the list at least every six months
and that the recipient review and act on
each request for prequalification made
more than 30 days before the closing
date for receipt of proposals or bid
opening. We believe that these
requirements will allow potential
contractors sufficient access to the list
and will minimize the noncompelitive
nature of such lists.
We also received several comments
on the prohibition in § 33.230(b)(4)
against the use of local or in-State
bidders' or proposers' preference. We
included this prohibition because a
preference for local or in-Stale bidders
unduly restricts competition. If the local
or in-Slule bidder is more familiar with
the local conditions, or can more readily
mobilize its resources and can.
therefore, provide the work more
economically or efficiently, a preference
is not necessary because its bid or
proposal should reflect this familiarity
or mobility.
Section 33.240 Small, minority.
womrn s and labor surplus area
businesses.
We are continuing to review EPA's
minority and women's business
enterprise (MBE/WBE) provisions in
5 33.240. We reserved § 33.240(b) for any
jdditional MBE/W5E requirements
which the Agency moy impose.
On December 17, 1982, President
Reagan issued a Statement on Minority
Business Enterprise Development which
encouraeea Federal assistance agencies
to achieve reasonable minority business
participation in contracts under
assistance agreements. The President
no'.prf :hat minority business
procurement by recipients could dtr.ount
to S6 to S7 billion through FY 1985. The
President also indicated that an
Executive Order on Minority Business
Enterprise will be forthcoming, and that
Ihe Intaragency Council for Minority
Business Enterprise will establish
uniform guidelines to implement the
Order. EPA will then rev.ew and revise
if necessary, its MBE/WBE provisions in
§ 33 240 to assure lhat they are
consistent with the requirements of
Executive Order.
In this rule, § 33.240 contains only
those provisions allowed by Attachment
O. Paragraph 9. Therefore, the MflE
policy (43 FR Q0220, December 26, 1978)
and the WBE policy (45 FR 51490.
August 1.1980) are no longer manda lory
for recipients of construction grants who
are subject to the interim-final or final
Part 33 rule. However, any EPA
recipient may adopt !hcse policies, in
whole or in part, by including provisions
in their solicitations and subagreementa.
In any event, recipients and contractors
must comply with the affirmative step
requirements in § 33.2-40 and any other
requirements of the Stale or the
recipient. - ----- ', :
We also received a substantial
number of comments'on the absence of
percentage goals in § 33.240 for MBE
and WBE participation in EPA-funded
work. We no longer require recipients to
include goals in their specifications, nor
will the EPA regions set goals for MBE
or WBE participation. In the past, goals
served as a tool to determine whether
the affirmative steps required by OMB
Circular A-102. Attachment O were
adequately carried out by the assistance
recipient and its contractors. In keeping
with EPA's policy to transfer
procurement responsibilities to
recipients, the Agency believes thai
recipients and Slates should decide how
to implement the required affirmotive
steps. Therefore, recipients may use
their own goals. State goals, or other
standnrds.
Several cnmmenlers noted that the
regulation was not clenr on whether the
nlTimative stens must be undertaken for
puch'group of businesses — small.
minority-owned and women-owned.
Recipients must take the affirmative
steps in 5 33.240 for each group. For
example, solicitation of MBE'a alone
will not satisfy the requiremenU of
§ 3:1 210: the recipient must also attempt
to contract with small and women's
We also received several comments
;hal § 33.2-5fif.i;(R! differs from OMB
Circular A-102. Attachment O. section
9 j.(b). The commenters poinled rvit :hdt
Attachment O requiroM that the first tier
contractor take the affirmative steps (1)
through (.•)) only if the contractor pUns
to uward subagreements. Therefore, we
have revised § 33.240(a)(6) to make it
consistent with OMB Circular A-102.
Attar.hment O.
Several commenlers s'j^qested that
wr ndd a definition of "libor surplus
area " The Secretary of Labor is
responsible for defining labor surplus
area This definition is contained in 20
CFR Part 654. 'Special Responsibilities
of the Employment Service System."
With respect to EPA's construction
grants program, we received comments
concerning Ihe use of MBE/WBE's in
facilities planning and design work As a
result of the 1981 Amendments to the
Clean Water Act, EPA cannot direct!/
involve itself in the facilities planning
and design activities preceding the
ICO
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12924 Federal Register / V^l. 48. N". 60 / Monday. M;irch ."H. 1983 / Ruins and Regulations
award of a construction grant. However,
it is EPA's policy to encourage potential
grant recipients to adopt procurement
procedures that, at a minimum, include
'.he affirmative steps in 5 33 240 for all
activities of their construction program.
Section 33.255 Specifications.
One commenier asked if the
justification for Jii use of a restrictive
specification had In he included in the
specification itself. That is not (he case.
The justification for the use of a
restrictive specification must be
documented and included in the
recipient's files.
We also receive a recommendation
that we limit use of "brand name or
eonai" specifications to procurements
for the acquisition of equipment and
services, and prohibit the use of a brand
name or eaual specification for the
procurement of pipe and timilar
material*.
We believe it is inappropriate to
adopt this recommendation for two
reasons. First. neither Attachment O nor
the Clean Water Act. as amended.
provide for any restriction of this nature.
Second, there may he instances in the
procurement of materials when the
recipient's procuring official must resort
to use of a "brand name or equal"
specification.
,- Although we prefer the use of design
or performance based specifications, we
agree that use of a "brand name or
equal" specification is generally not
advisable in procurements for the
acquisition of materials. Instead, the
recipient should determine whether a
national or industry standard has been
develooed. If ^veloped. such a
standard may provide both the recipient
and prospective cor.tiactors a more
accurate description nf the matpr-.al to
be purchased than, wou'd a "Vand name
or equal" specification.
A "brand name or equal"
specification crn he used only when the
recipient determine! that it is
impracticnl or uneconomical for it to
makn i cl»ar and sccurate description of
its technical requirements in the
specifications.
Section 33.7.M Payments to consultants.
We received several comments that
this section does not make it clear that
consultants may receive compensation
in excess of the GS-18 rate, rut that the
Federal government will limit its
psrtjcipation in a cayment to a
consultant to the maximum dailv rate
for a CS-18. We have, therefore, revised
the wording this section to make this
clear.
We also revised nanigraoh [hi to .
clarify that the GS-18 rate limitation
does not apply tc firms.
Section 33.2H5 Subagreernents awnrdfd
by Q cnntrai::or.
We received questions shout the
applicability of Part 33 to iubssreements
awarded by a contractor. We rpv;sed
5 j3 295 to clarify and explain which
procurempnt requirements apply and
thai they appiy only to the tier
immediately below the contractor (i.e.
subajzreements awarded by the
contractor.) However, this section does
not apply t" * first tier subagreemenl
awnrded by the recipient to a supplier.
That is. the section does not apply to a
supplier s procurement of materials to
produce equipment, materials, and
catalog, off-the-shelf, or manufactured
items.
We also added three requirements we
inadvertently omitted from the propo«»d
and interim-final rules. These three
requirements existed in EPA's previous
procurement regulations, in 40 CFR
30..140-2 (a) through (d). and Ig] and are
proposed in 40 CFR 30..101(al 111 'lirough
(4i and (7)). the profit requirements in
§ 33.23'". and the specification
requirements in § J3.255.
Section 33.520 Negotiation and award
cf s:ihcgreemer,t.
We reworded paragraph (a] to clarify
•hat the recipient must state in the
Request For Proposal (RFP) that he can
make the award based on Initial offers
alone. If the recipient does not make
such f- statement in the RFP. the
recipjont roust conH"-' meaningful
negotiations with aii of the best
qualified offerers with accept.-.hle
proposals and permit revisions to obtain
best and final off<"^.
Srrrinn 33.525 Optional procedure for
n'jgot'dian and award cf
suhafrtcmenls for architectural and
eng-rieerin% servic"s.
Several comrnenters suggested that
WP revise this section to delete the wnrd
"ootional" in the title We incl-jdst! :he
word optional to make it clear ihnt the
procedures in this section ars not
mandatory. This is in keeping wi'.h OMB
Circular A-102. Attachment O.
paragraph ll.c.fS). which clearly stales
that these procedures are optional.
We also revised this section to
explain the optional procedure in more
detail.
Section 33.?15 Use cf :he sairu arch;'d the DoL
regulation and develop a clause which.
m-:' the requirement. However, since
sevpral of 'he Dol. regulations require
th* use of a standard clause and
because EPA has a form (EPA Form
S7r.n—l "Lahor Standards Provisions For
Federally Assisted Construction
Contracts") which contains the
appropriate DoL clauses and which has
besn acr'oved by DoL we added
5 3-: IOIP -^ahor standards provisions"
whir.r requir-s recipients to use EPA
forrr Z~~n-&. W« believe this will
reduce th» liurc.?-.. on residents and
helo inTi'nrit"i: l*"? DoL requirements.
101
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Federal Register / Vol. 48, No. 60 / Monday. March 28, 1983 / Rules-and Regulations 12925
Section 33.1030 Clause 3 Changes.
Comments we received during an EPA
internal review of this Part suggested
that we change this clause lo eliminate
the reference to oraj change orders :n
paragraph (al(2). The change was
suggested to improve the management of
change orders and to reduce program
costs. We agree that oral change orders
may lead to mismanagement and add to
program costs, and have, therefore.
changed this clause. The subject of
change order management was
addressed in EPA's Office of Inspector
General's September 21.1982. rcoort on
change orders "Report on Audit and
Administration of Change Orders Under
EPA's Construction Granl Program."
This rerort was undertaken as port of
the Presioent's Council on Integrity and
Efficiency's study on change orders
under contruction programs.
Section 331O3O douse 8 Pnce
Reduction fnr Defective Cost or Pricing
Data.
We received comments that
paragraph lfl(b) of 40 CFR Part 35,
Subpan E. Appendix C-l should be
added to the end of this clause in order
to allow a disagreement over a
reduction in price to fall under the
remedies clause of the subagreement.
We agree and have added a paragraph
(b) to this da use. :
Another commenter pointed out that
by raisim; the elective level of this
clause from SlfiO.OOO to S500.000. we
were excluding most of the
subagreements for services on Step 3
construction grant projects. We have.
therefore, changed the effective level of
this clause back to the $100.000 level.
Saclion 33.1O30 Clause 9 Audit.
Access to Records.
We added a new paragraph |fi and
revised paragraph (g) to clarify when the
right of access clause applies.
Meeting With Interest Groups
On May 6, 1982. at the request of the
Water and Wastewater Equipment
Manufacturers Association (WWEMA).
EPA held a public meeting to d><=cuss
several issues. Present at the meeting
were representatives fro:r. groups with
special interest in procurement under
EPA assistance agreements, including
ihe National Institute of Coverrjnontal
Purr hosing (N1GP), the Association of
General Cunt; actor:, I AGO), the
American Consulting Engineers Council
JACEC). and the American Public
'A'orks Association (APWA) A tape of
th.s moctine Ls on file with EPA's Docket
S»c'ion in Docket No r>-81-4 In
addition, the positions of the various
groups are contained in written
comments also in the Docket. The
sections discussed at this meeting were:
Section 33.255 Spec:f:cc':c.rs.
The issue was whether !o delete !l:e
requirement nf § 33 255 that if a "brand
name or equal" description is used. Ihe
salient characteristics of ;he named
brand must also be stated. The
requirement !o include Ihe ,-amed
brand'?; salient characteristics in Ihe
specification is a requirement in
Attactunent O to OMB Circular A-102.
and is specifically caKv-1 for in House of
Representatives Report No. 97-270. 97th
Congress. 1st Session. October 12, 1C182.
(page 12). which accompanied the bill
that became Public Law 97-117.
Therefore. EPA cannot change the
requirement to include the named
brand's salient characteristics.
Section 3.7.1015 Subagr"pment
provisions clause.
The issue was whether to mandate
progress payments for undelivered.
specifically manufactured items of
equipment having long production times.
One commenter beheve.d that requiring
recipients to raaie oroeress payments
for sur.h items would reduce equipment
cos'.s because manufacturers include in
their equipment price the interest nn
money they borrow to produce the
equipment. While progress payments
could reduce the cost of some
equipment. Treasury Circular 1073 does
not require progress payments;
therefore. EPA will not require them.
This does not preclude recipients from
making progress payments for sucn
items and we encourage those who find
it in 'heir interest to allow progress
payments.
Section 33.1030'oj Clause 4 Differing
Site Conditions.
The issue was whether EPA should
require a clause to cover situations
where the actual characteristics nf the
influent to a waslewater treatment
works differs significantly from those on
which the original design was based.
Participants in the meeting decided that
a joint VVWEMA/ACEC/AGC task
group would provide EPA a suggested
draft Jause covering this issue EPA
considered the 'ask group's sujgestion
and decided that although the clause
addresses an important issue, it is not
an appropriate procurement under
assistance a^reer ent requirement.
jfc::on 3.1.0'X, u) Definition af
architectural ::r engineering services
The issues were whether the
definition of "arc rjtectura! or
engineering (A/hi services" should
include mon'.iracturers and contraclors
and be revised to state that providers of
A/E services need not be license) by
the State. Ths definition :n 5 33 OO.Vb' ;s
b.-.scrl on the definition for A/E services
in the American Bar Association s
'\lodei Procurement Code for SO:? '.no
Local Governments" and section 2 of the
American Soc:ety of Civil Engineers'
Mznun! 4s. Because EPA's dcr.nition is
b.iacd on the ilcfinilicns in these wmely
accepted reference documents, we do
noi belirve the definition should be
r.hnnped.
Section 33 525 Optional procedure fur
negotiation and award of a
subagreement for architectural ami
engineering services.
The issue was whether to ulimin.iii-
'he words 'architectural and
engineering " This section implomivii.s
an option to Ihe compeliti\« inrgoiution
process under OMB Circular A-'.U.'
Attachment O. uhich expressly limited
Ihe nption to Ihe procurement of A/Y.
services. Therefore. EPA believM lh.il .1
i.hcin}>e to tins section is no! warr.-uiinl
Regulation Development Process
Under Executive Order 12291. F.PA
must judge whether a regulation is
"major" a.id. therefore, subject to the
regulatory impact analysis requirements
cf the Order or whether it may Follow
other development procediires. We
determined that this regulation is not
"major" because it will not have a
substantial impact on the economy
Consequently, the regulation is'nol
subject to the impact analysis
requirements of Executive Order 12J91
Information collection requirements
contained in § 33.110 have been
approved by the Office of Management
and Budget (OMU) under the provisions
of !he Paperwork Reduction Act ol 1030
(44 USC. 3501 pi seq.) and hive been
assigned OMB control number 2000-
0453
The information provisions in § 33.211
"P.ecipi'-at reporting requirements" and
the requirement in 5 33 420(f).
5 33 51U(l)] and 5 33 1016 to use EPA
Form .0720-4 have been approved by
OMB under ihe provisions of Ihe
Paperwork Reduction Act of 19HO |44
I' S C ''SOI el s°q ) and h^ve been
assigned OMI3 control numiier 2030-
.•.X?4.
This reg-jl-iion was submitted to
OMB for review as required by
Exec jlive Order 12291.
List of Subjects in 40 CFR Part 33
Advertising. Conflict of interest.
Environmental protection. Gram •
prog.'jrns—Environmental protection.
102
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12926 Fnderal Register / Vol. 48. No. 60 / Monday. March 28. 1983 / Rules and Regulations
Daipd: March 11. 1983.
Johc W. HeraandpT. |r_
Acting Admwifimtnr
Accordingly, Title 40 Chapter I is
amended by revising Pact 33 to read as
follows:
P*RT 33—PROCUREMENT UNDER
ASSISTANCE AGREEMENTS
31 Off! Applicability and scope of thii part.
33.005 Definitions.
Subpart A—Procurement System
EvaloaUor
33.105 Applicability and scope of this
subpart.
33.110 Applicant and recipient certification.
13.115 Procurement system review.
Subpart 9—Procurement Requirements
33.3)5 Applicability and scope of this
subpart.
33.210 Recipient responsibility.
3.1.211 Recipient reportlna requir»msnts.
33.220 Limitation on subagreement award.
33.222 Vlolauons.
33.230 Competition.
33.235 Profit.
33.240 Small, minority, women's, and labor
surplus area businesses.
33.243 Privity of subagreement.
33-250 Documentation.
33.255 Specifications.
33.200 Intergovernmental agreements.
33.285 Bonding and insurance.
33.270 Code of conduct.
33 275 Federal cost principles.
33280 Payment to consultants.
33.28S Prohibited types of jubagreements.
33.290 Coat and price considerations.
33.295 Subagreemenls awarded by a
contractor.
Small Purchases
33.305 Small purchase procurement
33.310 Small purchase procedures.
33.315 Requirements (or competition
Formal Advertising
33.405 Formal advertising procurement
method.
33 410 Public notice and solicitation of bids.
33.415 Time for preparing bids.
33.420 Adequate bidding documents.
33.425 Public opening of bids.
33.430 Award to lowest, responsive
responsible bidder.
Competitive Negotiation
33 505 Competitive negotiation procurement
method.
33.510 Public notic*.
33.515 Evaluation of proposals
33.520 Negotiation and award of
subagreement.
33.525 Optional selection procedure for
negotiation and award of subagreements
for architectural and engineering
services
Noocompetitive Negotiation
33005 None, ipetitwe negotiation
procuremt-.it irsinod.
Subpart C—Requirement* tor Reclolenta of
Asalatance Agr-wnants lor Conair ictlon of
Treatment Works
Sf.
33.7H5 Applicability und scope of this
subpart.
33 710 Buy A/nencan.
33.715 Use ol the same architect or engineer
during construction.
Subpart 0—Requlrementi for Institutions
of Higher Education and Other Nonprofit
Organization*
33.0TIS Applicability and scope of this
subpart.
33.310 Nonapplicab1 .jbagreemenl clauses.
33.315 Nonapplica . procurement
provisions.
33.820 Additional procurement
requirements.
Subpart E—Requirements for Reelolenta of
Remedial Action Cooperative Agreements
Under tru Comprener.alve Environmental
. Rpiponse, Compensation, and LJablllty Act
c, 1980
33 90S Applicability and scope of this
subpart
33 910 Preferencr for formal advertising.
13.915 Award official approval.
Subpart F—Subagreement Provisions
33.1005 Applicability and scope of this
subpart.
.13.1010 Requirements tor subagreement
clauses.
33 1015 Subagreement provisions clause.
331018 Labor standards provisions.
33.1019 Patents, data and copyrights clause.
33.1020 Violating facilities clause. -
33.1021 Fnergy efficiency clause.
33.1030 Model subsgreemenl clauses
Subpart G—Protests
33 1105 Applicability and scope of thii
subpart.
33 1110 Renpient protest procedures.
31.1115 Protr.st appeal.
33.1120 Limitations on protest appeals.
33.1125 Filing requirements
33.1130 Review of protest appeals.
33 1140 Deferral ol procurement acnon.
331145 Award official's rove1".
Appendix A—Procedural Requirements for
Recipients Who Do Not Certify Their
Procurement Systems, or for Recipients
Who Have Their Procurement
Certifications Revoked by EPA.
Authority: 7 U.S.C. 135 el seq.; 15 L'.S.C.
2901 ct seq : 33 U.S.C. 1251 et seq.; 42 U-S.C.
241. 24Jb. 243. 248. 300)-1. .1001-2. 30O]-3. 1357
et seq. 6901 el seq : and 42 U.S.C. 9A01 el seq
§ 33.001 Applicability and scope of this
Part.
(a) This part applies to all assistance
agreements awarded on or after the
effective dale of this part. For assistance
agreements awarded before the
effective date, this part will apply only
to those procurement actions initiated
by the recipient on or after the dale the
recipient complies with the self-
cer'.ification requirements ;n § 33110 of -
this part. .
(b) This part:
(1) Describes EPA's procurement
system evaluation process.
(2| Identifies the minimum
requirements for the procurement of
supplies, services, and construction
under EPA assistance agreements.
(3) Identifies an additional
specification requirement for
procurement under assistance
agreements fnr the construction of
treatment works awarded under 40 Cr'K
Part 35. Subparts E and I.
(4; Identifies the procurements
standards that institutions of higher
education and other nonprofit
organizations must follow.
(S) Identifies the provisions that
recipients of EPA assistance agreeme-ts
must include in their subagreeme'
(6) Describes the procedures ' .ai EPA
w.ll use to handle protest appeals
concerning the award of ? subaureemeni
by the recipient of an EPA assistance
agreement.
(c) This Part does not apply 10 work
beyond the scope of the protect for
which an assistance agreement is
awarded (i.e.. ineligible work).
(d) This part does not appl" to
expenses for services for which the
recipient will receive an allowance or a
potential recipient will receive an
advance of an allowance under 40 CFR
Part 35. Subpart I.
(e) This part supplements the
rensions unrler EPA Assistance
Programs."
(f) The following types of recipients
must romply with the specified subparts
in ll-.'S part:
(i I Recipients of assistance
<;£;reemen!s for the construction of
treatment works awarded under 40 CFR
Part 35. Subparts E and I. must follow
the requirements in Subparts A. B. C. F
and C.
(2) Recipients of remedial action
cooperative agreements under the
Comprehensive Environmental
Response. Compensation. Liability Act
ff 19RO (Superfund 42 U.S.C. 6901 et
seq.j must follow the reou'remer.ts jn
Snbparts A. B, E. F :>nd G.
(3) Slate and local government
recipients.for othT than construction
grants and CERCLA remedial action
cooperative agreements must follow the
requirements in Subparts A. B. F and G.
(4) Institutions of higher education.
hospitals, and other nonprofit
organizations must follow the
rrquirements in Puboarts A. B. D and G.
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Federal Register / Vol. 48. No. 60 / Monday, March 22. 1033 / Rules and Repu'-Mions 12927
(g) In the construction of treatment
works program under the Clean Water
Act (33 U.S C. 1251 el. seq.j. it is EPA's
policy to delegate determinations '.in
individual projects to Stale agcnc..j to
the maximum exicnt possible (see -»J
CFR Part 35. Subpart Fl. This Part uses
the term "award official." To the extend
that the award official for a treatment
works assistance agreement delegates
responsibility for detcTninir.R
compliance with the requirements of this
Port (except for $ 33.115 'Procurement
system review." §33.211 "Recipient
reporting requirements" and Support G
"Protests") to « Stole agency under a
delegation agreement (40 CFR 35.1130).
the term 'award official" rray be reac
"Stale agency."
fh) This Part applies lo a grant
awarded under 40 CFR Part 35 Subp.irt
E onlv if the recipient elects to follow
the requirements m this Part. If the
reripicnl of a Subpart E grant does not
elect to follow ihe requirements in this
Part, it is subject 'o the procurement
requirements in 40 CFR Subpart E.
§ 3T005 Definitions.
(a) Words and terms not defined
below shall have th» meaning given to
them in 40 CFR Pert 30 and 40 CFR Part
35.
(b) As used in this part.-the following
wcids and terms mean:
Architectural or enginer.rirg [A/F.)
services. Consultation, investigations;
reports, or services for design-type
projects within '.he scope of the practice
of architecture or professional
engineering as defined bv the laws of the
State or territory in which the recipient
is located
Construction. Erection, building,
alteral.on. renode'.T.s. improver ?:.!. or
extension of buildings, structures or
other property. Constriction also
includes remedial actions ir response to
a release, or a threat of a release, of a
hazardous substance into the
environment as determined by '.he .
Comprehensive F.r.vironmental
Response. Comre.-.sat-an. and Lsbili'y
Act M 1PBO.
Cor'.rncior Any party In whom a
recipient d-v?.rd« a rubuprcener.!.
Cos: aniiystf. The review and
evaluation ofrach element 'if
subagro3rr.er.: cc^bt to determine
reasonableness, al'incability and
allowab.lity.
Interg?verr.m?.~.tc!Agreement Any
written agreement >>elwoen units of
goverr.mer.t ur.der whjch one public
agency pe'forms rl-jties f-r or in concert
with ar.nther public Eeency using p.p.\
assists; .p This includes substa'e rrd
iite-nicr.cv asreemen'?.
Minority Business Enterprise. A
minority business enterprise is a
business which is: (1) Certified as
socially and economically
disHdvantagcd by the Small Business
Administration. (2) certified as a
minority ou.iir.ess enterprise by a Stale
or Federal agency, or (3) an independent
business concern which is at least 51
percent owned and controlled by
minority group membcr(s). A mmonly
group member is an individual who is a
c-.iti7.en of Ihe United States and one of
the following:
(il BU-.k A.nerican:
(ii) Hispanic American (with origins
from Puerto Riro M»\i::o. Cuba. South
or Central Amenr<\|:
(Hi) Native Amcr'oan (American
Indian. Erkimo. Aleut, njlive Hawaiian).
or
O'v) Asian-Pacific American (with
origins from |apan. China. Ihe
Philippines. Vietnam. Korea. S.irma.
Guam, ihe U.S. Trust Territories of the
Pacific. Northern Marianas. Laos.
Cambodia. Ti»wan or (he Indian
subcontinent).
Price analysis. T!--? process of
evaluating a prospec'ive price without
regard :n the contractor'? ""-narate cosl
elements and proposed profit Price
ar.alys" determines '.he reasonableness
cf the propose.', s-bagreonenl pnrn
based on adequate pr;re competition.
previous exc-pricnce v»ith si-nilar wcrk.
estahlisher. r-.|i,ilc" or mark-?' price, law.
or regulation.
Prof't. The net proceeds obtained by
deducting all allowable costs (direct and
indirect] from th° price. (Because this
definition of pronl is based en
applicable Federal cost prnciples. i'
may vary from many "iimi definition of
profit, and may r.orresD(.T.d to thoce
firms' definition uf "fee."!
C'fri'ices A contrac'"r s '.ab"r. :irne. ,-r
efforts which do nn" involve the delivery
of a specific end :'P-I. other than
docurrenls. le g.. reroris. dn=icn
drawini;. soecificatior.s). This lnir~, does
nr.t include emp'.cyrnen'. agrpT:2r.ls or
collective h-.rjair..r.;i apret'md ano!hpr
pjr;y (other than arothfr pu'jlx ascr.ry)
and any lower tier .-jcreer.rr.: tVr
services. .cuf>p'.:r?- »r cor.st.-jclior:
reresscry to corr pleie the project.
SubdRrfcfrr.Hr.ts i:".!ude contracts ard
S'jbcortr'cJj If ' crcc.-.c! and
professional s<>r.'i.-ps. Bf-err.Knts wilh
consnMarts. snd purchabe crders.
S^p.'.'e; Ail property. inr.".:^ing
equipmer.t. materials, printing,
insurance;, ?n-j Iras^' O'THL: prnprri.
buf excluding land or a permanent
interest in land.
Women's Business Enterprise. A
women's business enterprise is a
business whirh is certified as such by a
Stale or Federal agency, or which meets
the following definition: A women's
business enterprise is 8n independent
business concern which is at least 51
percent owned by q woman or women
who also control and operate il.
De'°rmination of whether » business is
at least 51 perrsnt owned by a woman
or women shall be made without regard
to community property laws For
example, an otherwise qualified WHF,
which is 51 percent nv/nrd by a married
woman in a community property state
will rot be disqualified because her
husband has a ."0 percent interest in hor
share. Simi'arly. a business which is 51
pn'cen; nwned by a mamed m~n nnd Ifl
por-.nnt owned Nv an unmamet.' wnm.in
will not become « nnalified WEE by
vii tue of his wife's W percent interest in
his share of '.tip. business.
Subpart *—Procurement System
Eva'uation
§ 33 tOS Apollcablllry anrt scop« of this
suopart.
lal This subpart applies In nil •
recipients of LPA assist.mr,e
azreements.
|b) Fur Drocuremei::b involving EPA
funds, recipients shall use their own
procurement nohciea und procedures if
those policies and prorrJurcs reflect
applicable Keripral. S;nie. ,md loc.nl laws
and regulations, anri ->-.:..-.!s in th's piiri !si-» 5 33.001).
'.'.)' *. •'' >r\ .jlii3' Tg Us ;•'••• urunior!
f\-sti'-1. ih" appiic-ini or pvjipi-jnt wi'l
c:jn:;;lr.'.e the "P:o''n.r^nier.' System
Cer!::,cation" :£?/» form 57LX)-4fcj T'ne
'.'ZC!:'.-"'. or r^i.i^it v w.il either curiify
'hat:
il) Its «;^tcm w.ll meet \rc intent of
all the req_.. c.ner.is in this part before
any procuro.T.e.it action wrh EPA
avsis'sp.ce is cnri1-: taken, or
("V !'.s cu-'rert ^y = !e-n does not meet
the i '.'.r-nt or :!•:? '^quirer-ents of this
pfrt end. t:iprpl-jr». the applicant w'l,
foliow the requir-jments of <""• CFR Part
?" <;r.-i all^v.- r.P\ pre ward nviuw nf
r Tp"sc.H ptcc'jremer:' .'-tuins that wii!
104
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12928 Federal Registnr / Vol. 48. Nr 60 / Mondjy, March 28. 1983 / Rules and Regulations
use EPA funds. The additional
requirements for EPA review and
approval are contained in Appendix A
to ;his part.
(c] The applicant must submit the
s:gned certification form wilh (he
assistance application to (he award
UlTlClrtl.
(d] The certification will be valid for
two years or for the length of tne project
period specified in the assistance
agreement, whichever is greater, unless
the recipient substantially revises its
procurement system or the award
official determines that the recipient is
not following the intent of the
requirements in this part (see •
§ 33.115(b)). If the recipient substantially
revises its procurement system, the
recipient must re-evnluate its system
ar.d submit a revised EPA Form 5700-W.
(s) Even when a recipient certifies its
procurement system, the EPA award
official retains the authority stated in:
(1) Section 33.210(h) "Recipient's
procurement responsibilities." which
requires the recipient to receive the
award official's prior written approval if
the recipient wants to use uo innovative
procurement method.
(2) Section 33.211 "Recipient reporting
requirements." which requires the
award offir.ial to notify ti.e Department
of Labor of certain construction
subafrreement awards, and obtain all
bid or offer tabulations.
(3) Section 33.505(d) "Noncompelitivp
negotiation." to authorize a
noncompatitive award.
(*) Section 33.fl20(b) "AdciitionaJ
procurement requirements." which
requires the award official's prior
approval for a sole source awsrd over
S10.000 by an institute of higher
education or other nonprofit
organization.
(S) Section 33.915 "Award official
approval." which requires the award
official-to approve the recipient's use cf
a procurement method other than formal
advertising for a Superfund remedial
action award, and
(6) Subpart G "Protests."
5 33.115 Procurement system review.
(a) EPA will not substitute its
judgment for that of the recipient '.U-.'.PSS
.the matter is primarily a Federal
concern.
(b) Even if a recipient has a certified
procurement system. EPA reserves the
riaht to review a lecipier.t's procurement
rystrm or procurement action ur.cer an
assistance agreement:
(1] To determine if the recipient ;s
following th procurement requirtmtn's
in this part; or
[2^ Wh^n there is sufficier1 ."»risi;n to
believe lhat the recipient'-! system may
be unacceptable based on:
(i) Information concerning the review
or certification cf the recipient's
prcri-remtnt system or actions by other
Fede'bi agencies or Congress:
(iij Information from the recipient's
cognizant audit agency:
liiil Information from Stale agencies
and organizations independent of the
recipient's procurement activity.
(ivj Recipient responses to the
procurement system certification form:
(v) Previous EPA experience with the
recipient, or
(vi) information from contractors or
prospective contractors.
(c) If the j-.vord official determines
that the recipient is not following the
procurement requirements it certified it
would fallow, the- award official shall
revoke t.le recipient's certification and:
(1) Require that the recipient follow
the procurement requirements in this
part, including Appendix A. for future
procurement actions and. if appropriate.
12! Apjuy the sanctions in -JO CFR Part
30.
(d) The recipient may recertify :ts
procurement system if it ;hows the
award official that it has corrected -.he
procuremtnt deficiencies noted by the;
award official, and the award official
accepts the recertifjcauon.
Subpart B—Procurement
Requirements
5 33.205 App4lcabUlty ana scope of mis
aubpart.
This subpart contains:
(a) The recipient's and EVA s
responsibilities, and
(b) The minimum procurement
standard? for each recipient's
procurement system.
§ 33.210 Recipient responsibility.
[a) The recipient is responsible for the
settlement and satisfactory completion
in accordance with sound business
judgment and good administrative
pract:ce nf all contractual and
adminntraiive issues arising out of
•^agreements entered into under the
assistance- agreement. This inckries
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Federal Register / Vol. 48, No. 60 / Monday. March 28. 1983 / Rules and Regu
12929
(2) Resources to meet the completion
schedule contained in the subagreement;
(3) A satisfactory performance record
for completion of subagreeTients;
(4) Accounting and auditing
procedures adequate to control property.
funds and assets, as required in this Part
and 40 CFR Part 3ft and
(5) Demonstrated compliance or
willingness to comply with the civil
rights, equal employment opportunity,
labor law and other statutory
requirements under 40 CFR Part 30.
(b) The recipient shall not make
awards to contractors who have been
suspended, debarred, or voluntarily
excluded under 40 CFR Part 32 nor shall
it permit any portion of the work
required by the siibagreement to be
performed at any facility listed on the
EPA List of Violating Facilities (see 40
CFR Part IS).
5 3X225 Violation*.
The recipient shall refer violations of
law to the local. State or Federal
authority with jurisdiction over the
matter (see i 30.610).
5 33.230 Competition.
(a) The recipient shall conduct all
procurement transactions in a manner
that provides maximum open and free .
competition.
(b) Procurement practices shall not
unduly restrict or eliminate competition.
Examples of practices considered to be
unduly restrictive include:
(1) Non^omnetitive precticRS between
firms:
(2) Organizational conflicts of interest
(3) Unnecessary experience and
bonding requirements:
(4) State or local laws,*ordinances.
regulations or procedures which give
local or in-State bidders or proposers
preference over other bidden or
proposers in evaluating bids or
proposals: or
(5) Placing unreasonable requirements
on firms in order for them to qualify to
do business.
(c) The recipient may use a
prequalification list(s) of persons, firms
or products if it
(1) Updates its prequalified list(s) at
least every six months;
(2j Reviews and acts on each request
for prequalification made more than 30
days before the closing date for receipt
of proposals or bid opening; and
(3) Gives adequate public notice of its
prequalification procedure in
accordance with the public notice
procedures in § 33.410 or 5 33.510.
(d) A recipient may not use a
prequalified list(s) of persons or firms if
the procedure unnecessarily restricts
competition. However, this restriction
does not apply to J 33.525 "Optional
selection procedure for negotiation and
award of subagreements for
architectural and engineering services."
$33.235 Profit
(a) Recipients must assure that only
fair and reasonable profits are paid to
contractors awarded subagreements
under EPA assistance agreements.
(b) The recipient shall negotiate profit
as a separate element of price for each
subagreement in which there is no price
competition, or where price is based on
cost analysis.
(c) Where the recipient receives two
or more bids, profit included in a
formally advertised, competitively bid.
fixed price subagreement shall be
considered seasonable.
(d) Off-the-shelf or catalog supplies
are exempt from this section.
5 33-240 Small, minority, women's, and
labor aurolua area bualnesaes.
(a) It is EPA policy to award a fair
share of subagreementa to small.
minority, and women's businesses. The
recipient must take affirmative steps to
assure that small, minority, and
women's businesses are used when
possible as sources of supplies,
construction and services. Affirmative
steps shall include the following:
(1) Including quab'fied small, minority,
and women's businesses on solicitation
lists;
(2) Assuring that small, minority, and
women's businesses are solicited
whenever they are potential sources;
(31 Dividing total requirements, when
economically feasible, into small tasks
or quantities to permit maximum
participation of small, minority, and
women's businesses;
(4) Establishing delivery schedules,
where the requirements of the work
permit, which will encourage
participation by small, minority, and
women's businesses;
(5) Using the services and assistance
of the Small Business Administration
and the Office of Minority Business
Enterprise of the U.S. Department of
Commerce, as appropriate; and
(6) If the contractor awards
subagreements. requiring the contractor
to take the affirmative steps in
paragraphs (a)(l) through (a)(5) of this
section.
(b) [Reserved].
(c] EPA encourages recipients to
procure supplies and services from labor
surplus area firms.
§ 33.245 Privity of subagreement
Neither EPA nor the United States
shall be a party to any subagreement
nor to any solicitation or request for
prooosals.
} 33.250 Documentation.
(a) Procurement records and files for
procurements in excess of SI0.000 shall
include the following:
(1) Basin for contractor selection:
(2) Written justification for selection
of the procurement method;
(3) Written justification for use of any
specification which does not provide for
maximum free and open competition:
(4) Written justification for the type of
subagreement;
(5) Basis for award cost or price,
including a copy of the cost or price
analysis made in accordance with
§ 33.290 and documentation of
negotiations; and
(6) Written justification for rejecting
bids.
(b) Recipients must state the reasons
for rejecting any or all bids and the
justification for procurements on a
noncompctitively negotiated basis and
make them available for public
inspection.
§33.255 Specifications.
(a) Recipients must incorporate in
their specifications a clear and accurate
description of the technical
requirements for the material, product or
service to be procured. Such description
shall not. in competitive procurements,
contain features which unduly restrict
competition, unless the features are
necessary to test or demonstrnte a
specific thing or to provide for necessary
interchangenbiKty of parts and
equipment or to promote innovative
technologies. The description shall
include a statement of the qualitative
nature of the material, product or
service to be procured and. when
necessary, shall set forth those minimum
essential characteristics and standards
to which it must conform if it is to
satisfy its intended use.
- (b) The recipient shall avoid the use of
detailed product specifications if at all
possible.
(c) When in the judgment of the
recipient it is impractical or
uneconomical to make a clear and
accurate description of the technical
requirements, recipients may use a
"brand name or equal" description as a
means to define the performance or
other salieni requirement o'«
procurement. The recipient need not
establish the existence of any source
other than the named brand. Recipients
must clearly stale in the specification
the salient requirements of the named
brand which must be met by offerers.
(An additional specification requirement
for recipients of assistance for the
construction of treatment works under
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Federal RngUter / Vol. 46. No. 60 / Monday. March 28. 1963 / R'jlcs and Regulations
40 CFR Part 35. Subparts E and I is
contained In } 33.710.)
} 3X260 Intergovernmental agreements.
(a) To foster greater economy and
efficiency, EPA encourages recipient! to
enter into State and local
intergovernmental agreements for
common procurement or use of goods
and services.
(b) Although intergovermental
agreements are not subject to the
requirement* in this part, all
procurements under intergovernmental
agreements are subject to tha
requirements in this part except for
procurements that are:
(1) Incidental to the purpose of the
assistance agreement, and
(2) Made through a central public
procurement unit.
Bonding and Insurance.
(a) These requirements apply only to
recipients and contractors with
subagreements for construction.
(1) For construction subagreements of
SlOO.OOO or less, the recipient shall
follow its own requirements relating to
bid guarantees, performance bonds and
payment bonds.
(2) For those subagreeraents more
than $100,000. the award official may
accept tha recipient's bonding policy
and requirements provided the award
official makes a determination that the
Federal Government's interest Is
adequately protected. If tha award
official does not moke that
determination, the minimum bonding
requirements for subagreements more
than Sioaooo are:
(i) A "bid guarantee" from each
bidder equivalent to five percent of the
bid price. The "bid guarantee" shall
consist of a Rim commitment such as a
bid bond, certified check or other
negotiable instrument accompanying a
bid as assurance that the bidder will.
upon acceptance of the bid. execute
such contractual documents as the EPA
recipient may require within the time
specified.
(11) A "performance bond" for 100
percent of the subagreement price. A
"performance bond" is one that the
contractor executes in connection with a
subagreement to secure fulfillment of all
its obligations under such subagreement.
(ill) A "payment bond" for 100 percent
of the subagreement price. A "payment
bond" Is one that tha contractor
executes In connection with a
subagreement to assure payment as
required by law, to all persons supplying
labor and material in the execution of
the work pro' ded for in the
subngreemem.
(3) Where bonds are required in the
situations described above, bidders and
contractors .shall obtain them from
companies holding certificates of
authority as acceptable sureties (31 CKR
Part 223).
(b) Recipients and contractors must
follow the flood hazard area
requirements of the Flood Disaster
Protection Act of 1973 contained in 40
CFR Part 30.
} 3X770 Code of conduct
(a) Recipients shall maintain a written
code or standards of conduct which
shall govern the performance of its
officers, employees, or agents engaged
in the award and administration of
subagreements supported by EPA funds.
No employee, officer or agent of the
recipient shall participate in tha
selection, award or administration of a
subagreement supported by EPA funds if
a conflict of interest, real or apparent.
would be involved.
(b) Such a conflict would ariM when;
(1) Any employee, officer or agent of
the recipient, any member of their
immediate families, or their partners
have a financial or other interest in the
firm selected for award, or
(2) An organization which may
receive or has been awarded a
subagreement employs, or is about to
employ, any person under paragraph
(b)(l) of this section.
(c) The recipient's officers, employees
or agents shall neither solidt nor accept
gratuities, favors or anything of
monetary value from contractors.
potential contractors or other parties to
subagreements.
(d) Recipients may set minimum rules
where the financial interest is not
substantial or the gift is an unsolicited
item of nominal intrinsic value.
(e) To the extent permitted by State or
local law or regulations, the recipient's
code of conduct shall provide for
penalties, sanctions or other disciplinary
actions for violations of the code by the
recipient's officers, employees or agents
or by contractors or their agents.
} 33J7S Federal coet principle*.
The following cost principles apply to
assistance agreements and
subagreements:
(a) State and local governments must
comply with OMB Circular A-87 to
determine allowable coats.
(b) Educational institutions must
comply with ONfB Circular A-21 to
determine allowable costs and with
OMB Circular A-88 for indirect cost
rates.
(c) Nonprofit institutions must comply
with OMB Circular A-122 to determine
allowable costs.
(d) All other recipients, contractors
and subcontractors must comply with
the cost principles contained in the
Federal Procurement Regulations (41
CFR 1-15J and. If appropriate. 1-15.4) to
determine allowable costs.
? 31.780 Payment to eoneuttanta.
(a) For all EPA assistance agreements.
EPA will limit its participation in the
salary rate (excluding overhead) paid to
individual consultants retained by
recipients or by a recipient's contractors
or subcontractor* to the maximum daily
rate for a GS-18. (Recipients may.
however, pay contractors and
subcontractors more than this amount.)
This limitation applies to consultation
services of designated individuals with
specialized skiib who are paid at a daily
or hourly rate. This rate <*-JK» nOi include
transportation and subsistence costs for
travel performed: recipients will pay
theee in accordance with their normal
travel reimbiirwovnt practices.
(b) Subagreeoents with firms for
services which are awarded using the
procurement requirements in this part
are not affected by this limitation.
ProhJbfted type* ol
oubagreementsv
The cost-plus-percentage-of-cost [e.g..
a multiplier which includes profit) and
the percentage-of-construction-cost
types of subagreements shall not be
used.
93X290 Cost and price conalderattona.
(a) The recipient shall conduct a cost
analysis of all negotiated change orders
and all negotiated subagreements
estimates to exceed $10.000.
(b) The recipient shall conduct a price
analysis of all formally advertised
procurements estimated to exceed
JlO.OOO if there are fewer than three
bidders.
(c) For negotiated procurement.
contractors and subcontractors shall
submit cost or pricing data in support of
their proposals to the recipient.
}33.29S Subaoseementa awarded by a
contractor.
A contractor must comply with the
following provisions In its award of
subagreements. (This section does not
apply ;o a supplier's procurement uf
materials to produce equipment.
materials and catalog, off-the-shelf, or
manufactured items.)
(a) 40 CFR Part 32 (Debarment and
Suspension Under EPA Assistance
Programs):
(b) The limitations on subagreement - r
award in \ 33.220 (a)(l) through (a)(S);
(c) The profit requirements in 5 33.235:
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Federal Register / Vo!. AS. No. GO / Mondav. March 23. 1963 / Ruins jnd Re°ulalions 12931
(d) The requirements for small.
minority, women's and labor surplus
jrea businesses in § 33.2-lU:
(e) The specification requirements of
§ 33.235:
(f) The requirements of Subput t C jf
'.his Part, if appropriate:
(g) The Fcjeral cost principles in
5 33.275;
(h) The prohibited types of
subagreemer.ts in § 33.285;
(i) The cost and price considerations
in § 33.290. and
()) The applicable subagreement
provisions in Subpart F of ihls part.
Small Pur
5 33 410 fublic notice and solicitation cf
bids.
bids
Th
§ 33.305 SmaR purchase procurement.
If Ihe aggregate amount involved in
any one procurement transaction Joes
not exceed SlO.COO. including estimated
handling and freight charges, overhead
and protit. the recipient may use smail
purchase procedures.
§ 33.310 SmaH purchase procedures.
Small purchase procedures are
relatively eimple procurement methods
that are sound and appropnale for a
procurement of services, supplies or
other property costing in the aggregate
not more than $10.000.
§33.3 IS Requirements (or competition.
(a) Recipients shall not divide .1
procurement into imaller parts lo avoid
the dollar limitation for competitive
procurement.
(bl Recipients shall obtain price or
rate quotation1) from an adequate
number of qualified sources.
Fnrraal Advertising
§ 33.405 Formal advertising procurement
method.
(a) The requirements in $ § 33.405
through 33.430 apply to all formally
advertised subagreements in excess of
$10.000. Forma! advertising means the
public solicitation of sealed bids and the
award of a subaereenetil u.ised on a
fixed price (lump sum. unit price, or a
combination of the two) lo Ihe lowest.
responsive, responsible bidder
(b) Formal advertising requires at a
minimum:
(1) A complete, adequate and r»n|istic
specificaticr. nr purchase description of
what is required;
(2) Two or more responsible bidders
which are willing and able to compete
effectively for the recipient's business;
(3) A procurement that lends iis<;lf to
the award of a fixed-price
subatfreement; aid
(4) That Ihe selection of the successful
bidder be made principally on the basis
of price.
:ng
The recipient ,;h.ill Rive adequate
ublic notice oi thu solicitation, mvit:
bids and slating when and how !he
hitijK'g documents may be obtained
examined.
3 i 33 4 IS rime (or preparing b/ds.
The recipient must allow adequate
ti:::c between the date the public notice
is f-Tst published and Ihe date by whirh
bids rnujt lie submitted.
'i 33.420 Adequate bidding documents.
Recipient's bidding documents shall
include:
(al A complete statement uf work lo
be ;.-irf'>rrned including, where
<:jprr,priate. design drawings and
specifications and the required
performance schedule;
Co) The lercis nnd conditions of the
subagrerment to be awarded, including
payment, delivery schedules, point of
delivery and acceptance criteria;
[c; A clear explanation of the
r-?cipi"Vs method of bid(.ing and the
method of evaluating bid prir.es. and its
lusis dnd method for awarding the
fii) Any o!!'?r responsibility
reuiiirementH or evaluation cntcria
which Ihe recipient will use in
i:\a!^3ting bidders;
(c| The prevailing wn^e
determination, made under the Davis-
Qjii'.cn Act. if applicable; ;ind
(1 The deadline and place to submit
bids *nd a ccyy of § 33.205. Snbparts F
jnd C an^. :( r-ppropruite EPA Form
S/?.r>-t "L^hur Standard rtovisions for
Fedcr.:ily A-isnted Contracts."
§ 37.4.?5 ^Mh'ie ooenlog ol bids.
The recipient shall publicly open bids
at the p!;:ce. date and time announced in
the bidding documents.
j 33.430 Award to the lowest, responsive,
responsible bidder.
(a) The recipient shall > vuluHe .ill
bids in accordance with the methods
and criteria in trie bidding do-'umcnts.
ibl TKe recipient shall award a fixed-
price subagreement to the lowest.
respT.sive, responsible bidder. Where
spec.:' ••'! in ihe biridir^ documents.
recipients shall ccnsu-lf-r fac'.ors such as
discounts, transportation costs unu life
cycle costs to aetenB:ne Ihe low bid.
Payr.ier.is discounts m-ty be usnd to
determine the low bid only "'hen prior
experience of 'he recipient indicates
that it generally accepts such discounts.
(c) The recipient may reiect all bids
only when it has sound, documented
b^sinrSs reasons which are in the best
interest of lh° program .'or which EPA
jss^tancc is aw.irded (see j J3 250
"Docurr.entahon").
Competitive Nesofiation
', 33.50S Competitive negotiation
procurement method.
(a) The requirements in § § 33.505
through 33 5?5 -ipply to all competitively
negotiated suba°reementb in excess of
sio.noo.
(b) Recipients may use competitive
negotiation only if conditions are not
appropriate for the use of Ihe formal
advertising method of procurement (see
$ 33.405).
§33.510 Public notice.
|a) The rer.ipient must give adequate
public notice for competitively
ncaciiHtrd procurements.
(b) The notice of a request for
proposals must state how lo obtain
H.isor.nled documents, including n copy
of I 33.C95. Subpirts F and G. the basis
for T;baereem»nl award, and. if
appropriate. EPA Form 5720-4 "Labor
Standard Provisions for Federally
Assisted Contracts."
(c) Requests for oroposals must be
written, contain enough information to
enable a prospective cfferor to prepare a
proposal, contain all evaluation critena
and tr.p relative ixocrtance attached to
Crtch. ,\nd clearly state the deadline and
place In nuhmil proposals.
§33515 Evaluation of oroposals
(a) Recipients must uniformly and
oh|er.tive!y evaluate ail proposals
submitted in response n ihe request 'or
prnpossis.
(bl Recipients must base their
'!s,.i!i
-.l.ites that award may be b.iseci un
iiii'ial offers alone. Ihe recipient mus'
ronriuct mi-anin^ful negotiations with
the best qualified offerors wilh
.icccptable proposals w.thin the
competitive range, and permit rev.aions
'o cbtain Host n"..' -"insi offers. The host
qualified offerors must have equal
opportunities lo negotiate or revise their
proposals. During negotiations, the
recipient must not disclose the indentny
of competing offerors or any information
fruni competing proposals.
(b) The recipient must award the
s'-ibapreement to the responsible offeror
.vhose proposal is determined in wn!:ng
>o be the most advantageous to the
recipem. taking into consideration crice
108
Reproduced from
best available copy.
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12932 Federal Register / Vol. 48. No. 60 / Monday. March 28. 1963 / Rules and Regulations
and other evaluation criteria set forth in
the request for proposal.
(c) The recipient must promptly notify
unsuccessful offerers that their
proposals were rejected.
(d) The recipient must document its
procurement file to indicate how
proposal* were evaluated, what factori
were used to determine the best
qualified offerers within the competitive
range, and what factors were used to
determine the subagreement award.
} 3X525 Optional selection procedure tor
negotiation and sward of subegreementa
for architectural and engineering service*.
(a) The recipient may evaluate and
select an architect or engineer using the
procedures in this section in place of the
procedures In 9 33.520, "Negotiation and
award of subagreements."
(b) The recipient may use either a
prequalified list developed in
accordance with 9 33.230fc) or
responses to requests for statement of
qualification* to determine the most
technically qualified architects or
engineers.
(c) After selecting and ranking the
most qualified architects or engineers,
the recipient will request technical
proposals from those architects or
engineers and inform them of the
evaluation criteria the recipient will use
to rank the proposals.
(d) The recipient shall then select and
determine. In writing, the best technical
proposal
(e) After selecting the best proposal.
the recipient shall attempt to negotiate
fair and reasonable compensation with
that offerer.
(f) If the recipient and the offerer of
the best proposal cannot agree on the
amount of compensation, the recipient
shall formally terminate negotiations
with that offerer. The recipient shall
then negotiate with the offerer with the
next best proposal This process will
continue until the recipient reaches
agreement on compensation with an
offerer with an acceptable proposal
Once the recipient terminates
negotiations with an offerer, the
recipient cannot go back and renegotiate
with that offerer.
Noncompetitive Negotiation
} 3X605 MoncompetMve negotiation
• procurement method.
Recipients may use noncompetitive
negotiation to award a subagreement if
the other three procurement methods are
inappropriate because:
(a) The item is available only from a
single source;
(b) A public exigency or emergency
exists and the urgency'for the
requirement will not permit a delay
incident to competitive procurement;
(c) After solicitation from a number of
sources, competition is inadequate: or
(d) The EPA award official authorizes
noncompetitive negotiation, subject to
the limitation in 9 33.715(a)(2).
Subpart C—Requirements lor
Recipient*, of Assistance Agreement*)
for trie Construction of Treatment
Work*
} 30.705 AppUcabUtty and scope of this
•ubpert
Recipients of assistance agreements
awarded under 40 CFR Part 35. Subparts
E and I must comply with the'following
requirements.
} 33.710 Buy American.
Section 215 of the Cleau Water Act
requires that contractors give preference
for the use of domestic material in the
construction of EPA funded treatment
works.
(a) Contractors must use domestic
construction material in preference to
nondomestic material if it is priced no
more than 8 percent higher than the bid
or offered price of the nondomestic
material including all costs of delivery
to the construction site and any
applicable duty, whether or not
assessed. The recipient will normally v
base the computations on prices and
costs in effect on the date of opening of
bids or proposals.
(b) The award official may waive the
Buy American provision based upon
factors he considers relevant, including:.
(1) Such use is not in the public
in'eresc
(2) The cost is unreasonable;
(3) The Agency's available resources
are not sufficient to implement the
provision, subject to the Deputy
Administrator's concurrence;
(4) The articles, materials or supplies
of the class or kind to be used or the
articles, materials or supplies from
which they are manufactured are not
mined, produced or manufactured in the
United States in sufficient and
reasonably available commercial
quantities or satisfactory quality for the
particular project or
(5) Application of this provision is
contrary to multilateral government
procurement agreements, subject to the
Deputy Administrator's concurrence.
(c) All bidding documents,
subagreemenU. and. if appropriate.
requests for proposals must contain the
"Buy American" provision in 9 33.1030.
§33.715 Use of ttie same architect or
engineer during construction.
(aj If the recipient is satisified with
the Qualifications and performance of
the architect or engineer who provided
any or all of the facilities planning or
design services for the project and
wishes to retain that firm or individual
during construction of the project, it may
do so without further public notice and
evalution of qualifications, provided:
(1) The recipient received a facilities
planning [Step 1) or design grant (Step
2), and selected the architect or engineer
in accordance with EPA's procurement
regulations in effect when EPA awarded
the grant; or
(2) The award official approves
noncompetitive procurement under
9 33.605(d) for reasons' other than simply
using the same individual or firm that
provided facilities planning or design
services for the project; or
(3) The recipient attests that;
(i) The initial request for proposals
dearly stated the possibility that the
firm or individual selected could be
awarded a subagreement for services
during construction: and
(ii) The firm or individual was
selected for facilities planning or design
services in accordance with procedures
in:
(A) Section 33.230 "Competition."and
(B) Section 33.250(a)(l). (a)(2) & (a)(3).
and (b) "Documentation." and one of the
following:
(C) Section 331305 through 33.315
"Small Purchases." or
(D) Section 33.405 through 33.430
"Formal Advertising;"or
(E) Section 33.505 through 33.525
"Competitive Negotiation."
(iii) No employee, officer or agent of
the recipient, any member of their
immediate families, or their partners
have financial or other interest in the
firm selected for award: and
(iv) None of the recipient's officers,
employees or agents solicited or
accepted gratuities, favors or anything
of monetary value from contractors or
other parties to subagreementa.
(b) However, if the recipient uses the
procedures in paragraph (a) to retain an
architect or engineer, any Step 3
subagreements between the architect or
engineer and the recipient must meet all
of the other procurement provisions in
this part.
Subpart 0—Requirements for
Institutions of Higher Education and
Other Nonprofit Organizations
§ 3X805 AppllcabUtty and scope of this
subpart
Recipients who are subject to the
provisions of OMB Circular A-110,
"Grants and Agreements with
Institutions of Higher Education.
Hospitals, and Other Nonprofit
109
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Federal Rr^ister / Vol. -1". No. 150 / Monday, March ?B. 108.3 / Rule's ,md Regulations 12933
Organizations" are not subject to all uf
'.he requirements in this part.
§33.810 Nonappllcable subaqreemem
clauses.
The following clauses in Subpart F .jf
this part do not apply to institutions of
higher education and other nonprofit
organizations:
(a) Energy efficiency (5 3X107.4):
(h) Changes (§ 33 1030.3);
(c| Differing site conditions
(§ 3.1.1030.4); and
(d) Price reduction for defective cust
or pricing data (§ 33.1030.8).
§33.815 Nonappllcable procurement
provisions.
The fallowing procurement provisions
do not apply to institutions of higher
education and other nonprofit
organizations:
(a) Stibparts C and E;
(b) Sections 33.405 ihrouch 33.430
"Formal advertising;"
(c) Sections 33.505 through 13.525
"Competitive negotiation."
fd) Section 33.605 "Ncncompetitive
negotiation" (see § 33.820(bl):
(c) The requirement in § 33.270(a)
"Code of conduct" to have a written
code of conduct;
(fl The provisions of | 3.1.240 "Small.
minority, women's, and labor turplus
nrea businesses" which:
(1) Encourage the award of a fair
share of contracts to women's and labor
surplus area businesses:
(2) Require the specific affirmative
action steps in § 33.24O(a)(l) through
(a)(6); however, nonprofit organizations
are required to make positive efforts to
use small businesses and minority
owned businesses as scvrces of supplies
nnd services:
(g) Stbpart G "Protests."
§ 33.820 Additional procurement
requirements.
(a) Recipients must exclude
cont-actors that develop or draft
specifications, requirements, statements
of work, invitation for bids, or requests
for proposals from competing foi awards
resulting from the prior effort.
(b) For all proposed sole source
subagreements and where only one bid
or proposal is received, th» rer.ioient
must request the award official's prior
approval to award the subagreement if
ihc aggregate expenditure is expected to
exceed SlO.OOO.
Subnarl E—Spqulrements Tor
Recipients of Remedial Action
Cooperative Agreements Under the
Comprehensive Environment?!
Response, Compensation, an-1 Liability
Act of 1980
c 3J.90S Applicability and scope o) this
"jhpart.
!a) The requirements in § § 33.910
thromju J3.91 j Hpply only to remedial
ar.nnns w!i;ch EPA fund? ns part of a
cooperative agicemcnt un.iiur the
Com pro. icr.sive Environmental
Response. Compensation, and Lialnhlv
An of 1380 i^uperfund).
ibj Studies, inve'tigati'ins. or
i:iig:n«erip.jj activiti""! which precede a
remedial action activity are not subject
lo the requirements :n 55 32.fl10 thro'J»,h
J.'i.niS. but are subiect to the
rpi|'jirenien<''. in Subparts A. B. F and C
of this part.
5.13.910 Preference lor formal
advertising.
if a recipient wants to use mcr.! jjiovisions.
5 33.1016 Labor Mandards prov'slons.
Rt'i..i:ii>n!s sh.ill I'Klude a copy of F.J'A
Ko-ni 5/::n—t "I.nbnr Stanriiirds
Provisions for Federally Assi.'-tori
Constrvr'.icn Contracts" in enf.ri
'.i.;-..r:ri<"nirnt for cnnslructicm |,is
•'.rlirei! ''V ihc Secrnljr/ of Labor). Tf1
form ronlrtina the Davis-Unr.un Act
ri'Tjiiementi (-10 US C. 2;-tij—"76.1-7):
the Copnldiid Rpculalions (29 Ct~R P.ir!
1): thf! r.mlriic: Work hJnu.-s and T...!>••,
St;ir.di.rd Orrler 11246. as nT.niuJcd
5 33.1019 P •*~rts d^ta ano copyrights
clause.
n.\.-.rpt (or ronstnirtion j^rant
iiibiiiiri'L'mcnls. flll 'ubacreemenis sh.ul
include notir.n nf F.PA rcrjuiromonts an.'~!'nts Sa.ill r.nmply with
in<.iulalory standar-ls anj policies on
energy ufi'icicncy contained in the
Slaln's cnerqv conservation plan issued
:n ccrnpl;apce wiih the E.^rgy Foli>->
and Conserviition Act (Pub. L. 94-.163)
§ 33.1030 Model subagreement clauses
Rer.:pionts "^.ust includs, when
apTirnpriate. (lie following clauses or
their equ.valer.t 1:1 each subagreement.
Recipients r:>.iy substitute othpr terms
for "recipient and" "contractor" in the::
•no
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12934 Federal Register / Vol. 48, No. 60 / Monday, March 28. 1983 / Rules and Regulations
1. Supervision
The recipient and the contractor agree lhat
this and other appropriate clauses in 40 CFR
33.1030 apply to thai work eligible for tPA
assistance to be performed under this
subagreement and that these clause
supersede any conflicting provisions of this
subagreement.
Z. Privity of Subagroemem
This subaRreemenl is expected to be
funded in part with funds iiom the U.S.
Environmental Protection Agency. Neither
the United States nor any of its departments.
agencies or employees is. or will be. a party
to this subagreement or any lower tier
subagreement. This subagreement is subject
to regulations contained in 40 CFR Part 33 in
effect on the date of the assistance award for
this project.
3. Chan?**
lal The following clause applies only to
subagreemenu for construction. (1} The
recipient may at any time, without notice lo
any jureiy. by written order designated or
indicated lo be a change order, make any
change in the work within the general scope
of the subagreement. including but not limited
to changes:
(I) In the specifications (including drawuigs
and designsj;
(ii) In 'he lime, method or manner of
performance of the work:
(iii) In ihe recipient-furnished facilities.
equipment, matenals. services or site, or
(iv) Directing acceleration in the
performance of the work. .
(2) A change order shall also be any other
written order (including direction, instruction,
interpretation or determination! from the
recipient which causes any change, provided
the contractor give* the recipient written
notice stating the date, circumstances and
source of the order and that the contractor
regards the order as • change order.
(3) Except »i provided in this cliuse. no
order, statement or conduct of the recipient
shall be treated ai a change under 'his clause
or entitle the contractor to an equitable
adjustment
(4) It anv change under this clause causes
an increase or decease in the contractor's
cost or the time required to perform any part
of the work under this contract, whether or
not changed by any order, the recipient shall
make an equitable adiuilmer.t and modify the
subagreerrent in writing Except for claims
based on defective specifications. no claim
fnr any change under paragraph (a)(2l above
shall he allowed for any costs incurred more
than 20 days before the contractor gives
written notice as required in paragraph !a|(2).
In the case of defective specifications for
which ttie recipient is responsible, the
equitable adjustment shall include any
increased cost the contractor reasonably
incurred in attempting lo comply with tnose
defective specifications.
(5| If the contractor intends to assert a
claim for an equitable adjustment under this
clause, he must, within 30 days after receipt
of a written change order under paragraph (a|
(11 or Ihe furnishing of a written noliLC under
paragraph (a) (21. submit a written sl.ilemenl
to the recipient setting forth Ihe general
nature and monetary exlent of such claim.
The recipient may extend Ihe 30-day period.
The conlractcr may include the statement of
claim in trie notice under paragraph (2) uf this
change clause.
(81 No claim by the contractor for an
equitable aa>ustmenl shall be allowed if
made after final payment under Ihis
siibdgreemem.
ib/ The following clause applies only to
suhaxr'fments for services. (1) The recipient
may at any lime, by written order mike
changes within the general scope of this
subagreement in the service* or work to be
performed. If such changes cause an increase
or decrease in the contractor's cost or time
required lo perform any «ervices under Ihis
subagreement. whether or not changed by
any order, the recipient shall make an
equitable adjustment and modify this
subiRre**ment m writing. The contractor must
assert any r.Uim fur ddiust.iienl under this
Ll.iuse in wrilmg within 30 days from the dale
it receives the recipient's notification of
change, unless th«? recipient grants Htlilitiun,'!
lime before Ihe date of final paymenl
(2) No services for which the contractor
will charge an additional condensation shall
b« hirrushed withnut the written
auihon/Btion of the recioienl.
Id Thf 'oilown° clause applies only lo
subngteements for supplies. (1) The recipient
may -it any time, by written order and
without notice to the sureties, change ihe
general scope of this subagreement in any
one or more of the following:
(i) Drawings, designs or spncificaiion*
where the supplies is be fumisrei are
specifically manufactured tor th" recipient:
[ii) Method of shipment or packing: and
(iii) Place of delivery
(2) If nry change causes an increase or
decrease in Ihe cost or the time required lo
perform any part of the work under this
subagreemenl. whether or not changed by
any such order, the recipient shall make an
equitable adjustment in the subagreement
agreement price or delivery ."chedu!?. nr both.
and modify the subaareement in writing. The
contr«ctor muat assert any claim for
adjustment under this clause within 30 days
from the date the contractor receives the
recipient'.' notilication of change. If the
recipient decides lhal Ihe facts justify such
action, the recipient may receive and act
upon any such claim asserted at any time
before final payment under this
subagreement. Where the cost of properly
made obsolete or excess as a result of a
crar.ge is included in Ihe contractor's claim
for adjustment, the recipient has the right lo
presc.-ihe the manner of disposition of such
property Ncthing In this clause shall excuse
Ihe contractor from proceeding with the
sub-ngretment as changed.
4. Differing Site Conditions
Tf:e following clause applies only to
construction suoagreements. [a\ The
contractor shall promptly and before such
conditions JTP disturbed, notify the recipient
in \vr:!.r.sj of.
(1| Subsurface »r Ijtent physical cr.ni.ii:nns
jl ;hc site 'i.ffmng materially from :hose
indir.Vfj :n 'h s rjhaqreemcnt. or
Ui Unknown physical conditions jl ihe
silc. of an unusum nature, differing materially
from thuse ordinarily pncountereu. and
Seniraily recognized as inhering in work of
thp character nic\.Jod for in th.s
si'l-acTP-ment.
(hi The rptifent shall -i-orr.ptiy invrsugale
the <.r>ml:iioi<; If it finds Lhat conditions
materially differ and will causf an increase
or decrease in. the contractor a cost ur the
time requiree to perform any ?ec in paragraph (,i).
Id) No claim ov 'he contractor for an
equitable adjustment shall be ai'.cwprt if
asserted after final paymrni under this
subacreemenl.
S. Suspension of Work
7V;e following clause applies only :o
construction suhcgrvements. (a) The recipiem
may order the contractor in writing to
suspend, delay nr interrupt all or any part ."f
the wnrK for such period of time as the
recipient may determine to be appropriate for
the convenience ol the recipient.
(b) If Ihe performance of all or any pnn of
the work is susper '"d Delayed or
interrupted for an unr*>H3onablp renod of
time bv an ait of the rec-.oixr-t in
••"•.rninis:-.vi.->n of this fihaar»err.ent.(or by
ih» -;cic"ppi s f.-il'jre to ac: -vithm Ihe f.me
sprofied in ihis subac'eement (or if no time
is specified, within a reasoname time), .ne
reci?">ni snail mike an a-1;ustment for any
increase in the cost nl performance jf :h:s
subagreemenl (excluding profit) necessarily
caused by such unreasor.anle suspension.
delay or interruption and modify the cr.nr.ict
writing. However, no adjustment shall be
made tinder this clause for any suspension.
dels;/ or 'nterruption !o the exlcnl (1| that
performance would have been so suspended.
delayed or interrupted by any other c^'i^p
including the fault or negligence of the
contractor, or {2} for which an eouilaDle
adjustment is provided for or excluded under
any other provision of :his subosreerrent
[cl No riaim under 'his clause shuil he
a>iowed fl) for ar.ycosts incurred more than
CO Jays before :he contractor notified the
recipient in wn:ing of the act. or failure to
act. involved (this requ'rement dnes not apply
to a claim resulting from a suspension order).
ar.d (2| unless Ihe amount claimed is asserled
in writing as noon a* practicable after the
termination of such suspension, delay or
interruption, but not later than the date of
final paymenl under the suhacreement.
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Federal Register / Vol. 4fl. No. 60 / Monday/March 28. 1983 / Rules and Regui.r.ions 12935
8. Tomuutioa
(a) This subasree;nent may be terminated
in whole or in part in writing by either pnrty
in the event of substantial failure by -Jo other
party to fulfill it? obligations under ;his
xubagreement through no fnult of the
terminating party, provided thai no
termination may be effected unless th» :''her
party is given (1| not less than ten (10)
calendar days' written nniice (delivered hv
certified mail, return receipt requested) of
intent to terminate, and (2) «n opportunity for
consultation with the terminating party prior
to termination.
(b) This suhaprecment may be tprminated
in whole or in part in writir-c hy the recipient
for its convnience. provided Ihot the
contractor is given (1) not lt«s than ten (10)
cale.-rlir days written notice (delivered by
certified mail, return receipt requested) of
intent tq.lerrrura'.e. and (2) an opportuniry for
cor.sidletion with the terminating party pnor
to termination.
[c] L' termination for default is effected by
the recipient an equitable adjustment in the
pnce provided for in Ihis suhagreemenl shall
be made, but (1) no amount shall be allowed
for anticipated profit on unperformed
services or other work, and (2) any payment
due to the contractor a: the time of
termination may be adjusted to cover any
additional costs to the recipient because of
the contractor's default If termination for
default is effected by the contractor, or if
temination for convenience ia effectod by the
recipient the eoiutable adjustment shall
include a reasonable profit for services or
other work performed. The equitable
adjustment for any termination shall provide
for payment to tSe contactor for services
rendered and expenses incurred prior to the
termination. ID addition to termination
settlement costs reasonably incurred by the
contractor relating to commitments which
had become firm prior to the termination.
(d) Upon receipt of a termination action
under paragraphs (a) or (b) tbr.ve. the
contractor shall (1) promptly discontinue all
affected work (unless the notice direct*
otherwise), and (2) deliver or otherwise make
available to the recipient fill data, drawings.
specifications, reports, estimztes. summaries
and such other information srd materials as
may have been accumulated by the
contractor in performing this tubagreement,
whether completed or In process.
(e) Upon termination under paragraphs (a)
or (b) above, the recipient may take over the
work and may award another party a
subagreement tn complete the work under
this subagreemer.t.
(f) If. after termination for failure of the
contractor to fulfill contractual obligations, it
is determined that 'he contractor had net
failed to fulfill contractual obligations, the
termination shall be dee-ned !o have been fur
the convenience of the recruit. In >uc!i
event. ad)ustment of the subajrreempnt price
shall be made as provided in paragraph (c) of
this clause
7. Remedies
Unless otherwise provided in this
subagreemenl. all claims, counter-claims,
disputes and other matten in question
between the recipient and the contractor
arsicig out of. or rvlatir.), !u. this
suh»gr=:ei7 znt or the brenr.h of it will be
decided by arbitration if the parties mutually
agree, or in a court of competent ju-sdiction
wiihin the State in which the recipient is
located.
a. Price Reduction for Defective Cos! or
Pricing Data
,'Vo(A — The fallowing-clause npp.'ics to I!)
my subagrrement negotiated between rhe
recipient and its contractor in e\cpss of
SlOO.OOO: (21 negotiated suboyreetrent
amendments or change or Jen in excess of
StOO.OOO affecting the prii.e of formally
t!(.'-sertissd. competitively awarded, fixed
price subayreement. or (j) any lower tier
s-juoarrer.ent or purchase ordp' in excess nf
HOCrcO under a subo°rfemenl other than a
forrrctly advertised, competitively awarded.
fixed price suhcgreemenL This c/ause does
not apply to subsgreementt awarded on the
basis of effective price competition./
|a) The contractor and subcontractor.
* her? appropriate, assure that the cost and
pricing data submitted fcr evaluation w:ih
respect ii> negotiation nf pnces for ncgoualed
subagreements. lower tier subcgreeraents and
change orders is nosed nn current, accurate
and cociniete data supported by their books
and records. If the recipient or EPA
determines that any price (Including prufit)
nego'ia'ed in ccnnecrion with inn
subagreement. lower tier sLb«gre«menl or
amendment thereunder '^as increased by any
sigifir.anl sums because the data provided
' wns incomplete, inaccurate or not current at
the time of submission, then such price or
cost or profit shall be reouced accordingly
and the recipient shall mccufy ihe
subagieement in writing to reflect such
action.
fb) Failure to agree on e reduction shall be
subject to the remedies clause of this
subagrecmenl.
i.Vo.'e.—Since the subagrfemcnt is sublet
to reduction under Lhis clause by reason of
defective cost or pricing du;o submitted in
connection WIL'I hwertiersubcgrcemenU,
the contractor may wish to include a douse
in eijch tnwer tier subagreement requiring the
lower tier subcontractor to appropriately
irderr.nify the contractor, ft is also expected
that any lower tier subcontractor subject to
such indemnification will gererally require
substantially similar indemnification far
defective cost or pricing data submitted by
lower tier contractors.i
9. Audit; Access to Records
(a) The ccntractor shall maintain books.
records, documen's and oiher evidence
directly pertinent lo performance on EPA
funded work under this subagreement in
arccrtisnce wi.h generally accepted
accounting pnr.ci|.'.i.« and pr^ct.c.es
consist*xl> applied, jnd 40 CfS Part 30 in
effect on the d.if.? of execution of this
SMbogr-wment. Tne contractor shall also
rr.amic-n ll.e financial in!ormatinn and data
used in ;he preparation or support of the cost
submission required under 43 CFR 33.290 for
any negotiated jubagreemtr.: or chnige order
ar.d a copy of the; ccst su.Tjn-iry submitted to
'.he recip.er.t. The United Stales
Environmental Protection Agency, the
Complrnti*r General of the United States, (he
United Stat»s Department of Labor. Ihe
recipient, and (the State) or any of their
authorized representatives shall have SCCPSS
to al! such books, records, docur .its enH
other evidence for the p"rpose ol inspection.
auHit anr^ Copying dunng normal business
hours. The conuactor will provide proper
facilities Tar such access and inspection.
[b) I! this is a formally advertised,"
competitively awarded, fined pnce
subagreement. the contractor agrees lo make
paragraphs (a) through !s] of this clause
applicable to all r.egotnied change orders
and subagrecrr.enl amendments affecting the
subagreemenl pnce. In the case nf all other
types of Dnme subagreements. the contractor
"igroes to mar"! paragraphs (a) through (g)
applicable to all autiagreemerts he awards in
excess of £10000. at any tier, and to make
paragraphs (a) through is) of this clause
applicable to all change orders directly
related lo project performance.
(r.) Audits conducted under this provision
shall be in arcordi'.nce with generally
accepted auditing standards and with
established procedures and guidelines of the
reviewing or audit agencyhesl.
(dj The contractor agrees to disclose all
infurmacor. and reports resulting from access
lo records mvJer paragraphs (a).and (*-) of
this clo'^je to any of the agencies referred to
in puragriph (H)
(e) Records under paragraphs (a) and (b)
above shall be mamismed by the contractor
during performance on EPA assisted work
tinder this subagrpement and for the time
periods specified in 40 CPP '•••« .10. In
o'lrt'tinii. l^.-isc rpcords whu.n relate to any
controversy ar.sinjj under an EPA assistance
agreement, litigation, the settlement of claims
.ir.str.s) out °' 9ucn perfonnance or to costs or
ilmns to which an audit exception haj been
taken dhall be maintained by the contractor
for th» lime penods specified in 40 CFR Part
50.
(f) Access lo records IB not limited to the
required retention periods. The authorized
representatives designated in paragraph (a)
of this claute shall have access lo records at
any reasonable time for as long as the
records are maintained.
(g) This right of access clause applies to
financial records pertaining lo all
subagreements (except formally advertised.
competitively awarded, fixed price
subagreements) end all subagreement change
orders regardless of the type of
subagreement. and all subaureement
amendments regardless of the lype of
subagreement. In addition this nghl of access
applies to ail records perta JUTJJ '.o all
sjbagrccments. subagreemenl change orders
and subayeemcnt amtr.^ments:
!l) To trie extent the re-.orda pertain
d.iectly to subagreemenl performance;
'2) If there is any indication that fraud.
gross abuse or corrupt practices may be
involved; or
(3) If the subayreement is terminated for
default or for convenience.
TO. Covenant Against Cont'Jignnl Tern
The contractor assures that no person or
selling agency has been employed or retained
112
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12936
Federal Register / Vol. 48. No. 60 / Monday. March 28. 1983 / Rules and Regulations
to solicit or lecure this subagreement upon an
agreement or understanding for a
commission, percentage, brokerage or
contingent fee excepting bona Ode employees
or bona fide established commercial or
selling agencies maintained by the contractor
For the purpose of securuui business. For
breach or violation of this Assurance, the
recipient shall have the nght In annul (has
agreement without liability or. at its
discretion, to deduct from the contract price
or consideration, or otherwise recover the full
amount of such commission, percentage.
brokerage or contingent fee.
II. C;rlfuitio
(a] I/ the recipient finds after a notice and
hearing that the contractor or any of the
contractor Vajenti or representatives offered
or gave gratuities (in the form of
entertainment gifts or otherwise) to any
official employee or agent of the recipient.
the State or EPA in an attempt to secure a
subagreement or favorable treatment in
awarding, amending or mailing any
determinations related to the performance of
this subagreement, lh« recipient may, by
written notice to the contractor, terminate
this subagreement. The recipient may n'so
pursue other rights and remedies that the law
or '.his subagreemenl provides. However, the
existence of the facts on which the recipient
base.' such findings shall be in issue and ma>
be reviewed in proceedings under the
Remedies clause of this subagreement.
|b) Ir. the event this subagreement is
terminated as provided in paragraph (a), the
rericlient may pursue the same remedies
acauist the contractor as it could pursue in
the event of a breach of the subagreement by
the contractor. »nd as a penalty, in addition
to any other damage* 'o which it may ba
entitled by law. he entitled to exemplary
d&inqei m an *r-mA's approval of
drawings, designs, specifications, reports and
incidental work or materials furnished
hereunder shall not in any way relieve the
contractor of responsibility for the technical
adequacy of his work. Neither the owner i
nor EPA's review, approval, acceptance or
payment for any o' 'he services' shall be
construed as a waiver of any nghls under thu
agreement or of any causa for action ansina
out of the performance of thii subagreemenl
(«) The contractor shall be. and shnl!
remain, liable in accordance with applicable
law for all damagei to the owner or EPA
caused by th* contractor's negligent
performance of any of the services furnished
under this subagreement. except for errors.
omissions or other deficiencies to the extent
attributable to the owner, owner-furnished
data .ir any third parry. The contractor shall
net be responsible for any time delays in the
project caused by circumstances beyond the
contractor i control.
(5) The contractor s obligations unrler this
clause are in addition to the contractor s
other exoress or iraolied assurances under
this subcgreement nr State law and in no way
diTiinish any olhrr n"hts that the owner may
have against the contractor for faulty
materials, equipment nr work. .
i'iy TVie follnwing clause an"/ies only to
subafreeme :r.; f?r consir»rt:un. (1] The
contractor agrees to perform all work under
tru» lubagreeraent in accordance with this
agreement's designs, drawings and
~
[J Hie contractor guarantees for a period
of at least one (1) year from the date of
subslan'ial completion of the work that the
completed work is free from «li defects due to
faulty materials, equipment or workmanship
and that he shall promptly make whatever
ai'./jsunents or corrections which may be
nec"!>sary to cure any defects, including
repairs of any damage to other parts of :he
system resulting from such defects. The
owner shall promptly give notice to the
cnntroctor of observed defects In the event
that the contractor fails to majie adjustments.
repairs, corrections or other work made
necessary by such defects, the owner may do
so and charge the contractor the cost
incurred. The performance bond shall remain
in Ml force and effect through Ihe guarantee
period.
(3) The contractor's obligations under this
clause are in addition to the contractor's
other express or implied assurances under
this subagrecrnent or State law and in no way
diminish anv other rights that the owner may
hnve apa:nst Ihe contractor for faulty
materials, esuipmcr! or wnrk.
14. Final Ppymepl
Upon satisfactory completion, of 'he work
performed ur^^~ ^his subagrptnif?nt. as a
condition before final payment under this
subagreement or as a termination settlement
under this subagreemenl the contractor shall
execute and deliver to the owner a release of
all claims against the owner arising under, or
by virtue of. this subagreemenL except claims
which are specifically exempted by the
contractor to be set forth therein. Unless
otherwise provided in this subagreemenL by
State law or otherwise expressly agreed to by
the parties In this subagreexent. final
payment under this subagreement or
settlement upon termination of this
subagreement shall not constitute a waiver of
the owner s claims against the contractor or
his sureties under this subagreement or
applicable performance and payment bonds.
Subpart G—Protests
} 33.1105 Applicability and scop« ol this
•ufcpart.
This subpart sets forth EPA's
administrative process for the rapid
resolution of protest appeals filed with
the award official.
3 33.1110 Recipient protest procedures.
(a| Recipient* must establish their
own procedures for prompt
consideration of initial protests
concerning their solicitations or contract
awards. A "protest" is « wnlten
complaint concerning the recipient's
solicitatiotf or award of a subagreement.
ft must be filed with the recipient by a
party with a direct financial interest
adverr.My affected by a recipient's
procurement action (see § 33.1130
"Review of protest appeal").
(b) The recipient should review each
protest received to determine whether it
is appropriate to defer Ihe protested
procurement action.
(c) If the recipient does not defer Ihe
procurement action, it assumes the risk
that the award official may disallow the
cost of the protested procurement action
if the protest appeal is upheld.
§33.1115 Protest appeal
(a| A party with a financial mterpst
which is adversely affected by the
recipient's decision on the initial protest
may file a "protest appeal" with the
award official.
(b) A "protest appeal" is a written
complaint filed with the award official
regarding the recipient's determination
of a protest.
§ 33.1120 Limitations on protest appeals.
(a) The award official shall not accept
a protest appeal until the protester has
exhausted all administrative remedies nt
the recipient level.
(b) A protest appeal is limited to Ihe
following:
fl) Issues arising under the
procurement provisions of this Part, or
113
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Federal Register / Vol. 43. No. RO / Monday. March 28. 1963 / Rules and Reg-
ions
12937
[2) Alleged violations of State or local
law or ordinances where the award
official determines that there is an
overriding Federal requirement.
(c) A recipient of a lower tier
subagreement (subcontract) may only
file a protest appeal for issues which
relate to the award of a subagreement
by a contractor (see 5 33.295
"Subagreements awarded by a
contra ctor").
}U112& FBny rvqutrwiwnta.
(a) Protest appeals must be filed with
the Assistant General Counsel for
Grants for. Headquarten'-awarded
assistance: agreements acd with th*
Office of Regional Counael for regionally
awarded assistance agreements.
(b) A protest appeal must
(1) Be-written:
(2) Include a copy of the recipient's
determination of the protest
(3) State the basis for the appeal: and
(4) Request a determination under thia
subpart.
(c) Upon filing a protest appeal with
the Regional Counsel or Assistant
General Counsel for Grants, as
appropriate, the parry filing the protest
appeal must concurrently transmit a
copy of all protest documents and any
attachments to all other parties, wilh. a
direct financial interest which may be
adversely affected by the determination
of the protest appeal.
(d) The award official will only
consider written protest appeals
received by the appropriate Counsel's
office within seven ralan^ay days after
the adversely affected party receives the
recipient's determination, of protest
However, the adversely affected party
can meet the seven-day notice
requirement by telegraphing the Counsel
within the seven-calendar-day period of
its intent to file a protest appeal.
provided the adversely affected party
submits a complete protest appeal
within seven calendar days of the date it
sends the telegram. If the seventh day
falls on a Saturday. Sunday or holiday,
the-next working day shall be the last
day to submit a protest appeal
(e) Any parry which submits a
document to the award official during
the course of a protest appeal must
simultaneously furnish all other affected
parties with a copy of the document
933.1130 R«v*«w of protest appni.
(a) If the recipient does not receive the
initial protest before bid opening or the
dosing date for receipt of proposals. Uie
award official may dismiss as untimely
any protest appeal based upon alleged
improprieties in the solicitation which
were clearly apparent before bid
opening or before the deadline for
receipt of initial proposals. In negotiated
procurements, protests of alleged
improprieties which were incorporated
in a new solicitation must have been
received by the recipient by the closing
date for receipt of proposals for the new
solicitation.
(b) In cases not involving
improprieties in the solicitation, the
award official may dismiss as untimely
a protest appeal if the adversely
affected parry did not file the initial
protest with the recipient within seven
calendar days of the date the basis for
the protest was known or should have
been known, whichever is earlier.
33X1140 Deferral of pracurpfTMnt •cfloa.
When the award official receives a
protest appeal and the recipient has not
deferred the procurement action under
5 33.lI10(b). the award official must
promptly request that the recipient defer
the protested procurement action until
the award offlaal notifies the recipient
of the formal or informal resolution of
the appeal The request shall be limited
to tne award of the subagreement or
subitem which is the basis of the protest
appeal
§33.1145 Award offleiaf* r«vl«w.
(a) The award official may establiab
rules of procedures or deadlines for the
submission of materials or the
arrangement of protest appeal
conferences.
(b) The award official may summarily
dismiss, an appeal without proceedings
under this subpart if:
(1) The protest appeal is not
re-viewable, see J 33.1130. or addresses
Issues other than those allowed under
I 33.1120fb);
(21 The protester substantially fails to
comply with the procedural
requirements of this subpart or
(3) The protester does not agree to the
recipient's request fora reasonable
extension of the bid and bond period.
(c) The award official may summarily
deny a protest appeal without
proceedings under 'Jus subpart if. after
considering the facta in a light most
favorable to the protester, the award
official believes that the protest lacks-
merit
(d) The award official will give both
the recipient and the protester, as well
as any other party with a financial
interest which may be adversely
affected by the determination of protest
an opportunity to present arguments in
support of their views in writing or at a
conference.
(e) After the announced date for
receipt of written arguments, '^e r»cord
iihnll.be clciod.
(f) The award official shall review ^ e
record considered by the recipient and
any-other documents or arguments
presented by the parties to determine
whether the recipient has complied with
the procurement requirements of this
part and hag a rational basis for its
determination of protest.
(g) Tne award official's determination
shall constitute Snal EPA action from
which there shall be no further
administrative appeal. So party may
appeal an award official's determination
of appeal to the EPA Board of
Assistance Appeals.
[h] Nothins in this subpart preclude::
the award official from reviewing the -
recipient's procurement action, (See
5 33.115.)
(i) Noncompliance with the award
official's determinaaon of protest shall
be cause for an action against the
recipient under 40 CFR Part 30 or 32.
0) If an appeal involves legal issues
not explicitly addressed by this part, the
award official shall resolve tha issue by
referring to other protest detenmnanc '
tndec this section and decisions of the
Comptroller General of the United
States or of the Federal courts
addressing Federal requirements
comparable to procurement
requirements of this parr.
Appendix A.—Procedural R«quiraiiMnt> toe
Rwapunts Who Do Not Certify Their
Procurement System*, or for Recipient* Who
Have Their Procurement Ceraflcaaon*
Revoked By EPA
(a I The following procedural requirements
apply to recipient* who:
(1) Do Dot certify to EPA that their
procurement system meet* me minimum
procurement requirement* in this port, or
(I] Have their procurement cemficaboa
revoked by the award official, as slated in
) 33-llS(b).
(b) Those recipients mu*( comply with ie
requirement* in this part plus ihe I'oUowxng
procedural requirements. These procedural
requirements supplement the requirements in
the lection* a ted
C) To comply with1? 33.2SO.
"Documentation." Lhe recipient must rabmit
to ihe award offiaaJ the record* required by
Ifai* section,
(I) To comply with } 33.290. "Cost and
price conjiderabona." the recipient's
contractor* and subcontractors must submit
their cost or price data on EPA Form 5700-41.
"Cost or Price Summary Format for
Subagreemenu Under U.S. EPA Grants." or
in another format which provides mformanon
similar to that required by EPA Form 5700—11.
(3) To comply with 5 33M15. "Time for
preparing bid*." the recipient must allow at
least 30 days between the dale when it 5t«(
publishes the public nonce and the date by
which bids must be submitted.
(4) To comply with } 33M15. "Public notice
•>.n
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12938 Federal Register / Vol. 43. No. 60 / Monday. March 28. 1983 / RuJes and Regulations
nowvpapen. or publications of general
circulation over a reasonable are* for ji lean
30 days before bid opening.
(51 To comply with 5 33.510. "Adequate
public notice.' the recipient must pubbsh the
notice in professional journal*, newspapers.
or publications of general orculacon over a
reasonable area for at leatt 30 day* before
th« deadline for receipt of propoaaii. The
recipient may use pojud pufiuc aoocea or
wntien aoaficaaon directed to interested
pecaooa. Gnnj or pro/eiaional organizanoni.
(TK Oouo^nM nud t-a-m «.-o •<&<
SIUJMO COM a no in »
11
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40 CFR PART 35 -
FINANCIAL ASSISTANCE FOR CONTINUING ENVIRONMENTAL
PROGRAMS
-------
Tuesday
October 12, 1982
Part IV
Environmental
Protection Agency
State and Local Assistance
117
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44946 FeJeral Register / Vol. 47. No. 197 / Tuesday, October 12, 1982 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 35
(OA-FRL 2205-4)
State and Local Assistance
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: EPA has nine programs
providing financial assistance to Slate
and local agencies for continuing
environmental programs. Each program
has had separate administrative
requirements. This rule establishes
uniform administrative requirements.
and procedures for all nine programs.
The rule also contains the assistance
provisions uniquely applicable to each
program.
DATE: This rule is effective on October
12,1982 except for $ 35.140. which
contains information collection
requirements which must be approved
by OMB before they are effective. A
notice of that approval will be published
in the Federal Register. Applicants may
elect to comply with the provisions of
5 35.140 now, or they may comply with
the application provisions contained in
the old 55 35.526. 35.527. 35.528. 35.611.
35.626. 35.670. 35.718. 35.722. 35.755.
35.775. 35.778. 35.1010. 35.1030(a) and
35.1513.
ADDRESS: Comments received on the
proposed regulation may be inspected at
the Central Docket Section, West Tower
Lobby. Gallery Room L 401 M Street.
SW.. Washington. D.C.. between 8:15
a.m. and 4:00 p.m., Monday through
Friday.
FOR FURTHER INFORMATION CONTACT
Cynthia Puskar. Grants Administration
Division (PM-216), Environmental
Protection Agency, Washington. D.C.
20460, (202) 382-5295.
SUPPLEMENTARY INFORMATION: This
regulation. 40 CFR Part 35. Subpart A—
Financial Assistance for Continuing
Environmental Programs, amends the
financial assistance requirements now
contained in 40 CFR Part 35. Subparts B,
F, and C. It eliminates unnecessary
requirements and develops consistency
for as many of the remaining
requirements as possible. Subpart A
establishes administrative requirements
and procedures for financial assistance
awarded by EPA to State, interstate,
and local agencies for continuing
environmental programs. The financial
assistance programs for which EPA
anticipates funding in FY 1983 and the
substantive program regulations
associated with them are identified
below. To understand the substantive
and administrative requirements
governing a particular program, both
Subpart A and the appropriate
programmatic regulation should be read
together.
• Air pollution control (section 105 of
the Clean Air Act; Catalog of Federal
Domestic Assistance (CFDA) No.
66.001): 40 CFR Parts 50-52. 58, 60-62,
and 81.
• Water pollution control (section 108
of the Clean Water Act: CFDA No.
66.419): 40 CFR Part 35, Subpart G.
• State administration (section ZOSlg)
of the Clean Water Act: CFDA No.
66.438); 40 CFR Part 35. Subparts F and I.
• Water quality management
planning (section 205(j) of the Clean
Water Act); 40 CFR Part 35, Subparl G.
• Public water system supervision
(section 1443(a) of the Safe Drinking
Water Act: CFDA No. 68.432); 40 CFR
Parts 141-143.
• Underground water source
protection (section 1443(b) of the Safe
Drinking Water Act: CFDA No. 66.433);
40 CFR Parts 122-124 and 146.
• Hazardous waste management
(section 3011 of the Solid Waste
Disposal Act. as amended: CFDA No.
66.451); 40 CFR Parts 122. Subparts A
and B; 123. Subparts A, B. and F; 124,
Subparts A and B: and 260-266.
• Pesticide enforcement (section
23(a)(lj of the Federal Insecticide.
Fungicide, and Rodenticide Act: CFDA
No. 66.700): 40 CFR Parts 162, 165-167,
169-170, and 172-173 and 19 CFR Part
12.
• Pesticide applicator certification
and training (section 23(a)(2) of the
Federal Insecticide. Fungicide, and
Rodenticide Act); 40 CFR Parts 162 and
170-171.
Subpart A amends the financiaJ
assistance requirements now contained
in 40 CFR Part 35. Subparts B, P, and G.
EPA is also in the process of amending
the programmatic requirements
contained in Subparts F and G. EPA
recently proposed the Construction
Grants Program Delegation to States
Regulation as Part 35. Subpart J. and is
about to propose a Water Quality
Planning and Management Regulation as
Part 130. The following table shows the
relationship between Subparts B, F. and
G (as they appear in the current Code of
Federal Regulations] and Subpart A and
associated program regulations under
development. The "new" column
indicates the section of 40 CFR Part 35
or other parts of 40 CFR lo which EPA is
moving or plans to move existing
requirements. This table is for
informational purposes only.
ow
MCtnn
06001
36002
OtdtrtH
Purpoee at regulation
AppfccabJity and scope _.-.
NOT
35001.
JS 001
Subpa/1 8—Program Grants
35400
35403
35404
39409
35410
35.419
194:0
JS42S
Purpose .._ -
Authonty
Annual gudance
Cntena lor •valuation ,
Evamaoon of agency per-
tormanc*
FVujnoai status report
Payment
Fadaral and grama* pro-
gram Support.
39.100
Autnonty
35 175
39.141
39.150
Part 30
IS Ul. Pan X
Pat 30
A* PrArtion Control Program
39501
15509
35 SOT
395 10
39515
39520
J9S2S
35527
35526
39 529
39930
36535
15538
fXImlone
Allocation at funda
Faoaral aaaatanca _..
Grant attlment and. amount ...
Control program afryfrhry
Cntana 'or award —
Agency program preparaaon...
35109.
39115; 35120;
35.155
35 135: 35205.
39115: 35 141:
36140.
35205: 35.210;
39.215
39209: 35 210:
15215.
35125: 39 130
Uaior program elements and , 35 125. 35 130.
Output*. ,'
Agency program momosion J 35 140
Program approval
G/anl oonotjoni ..
Aaa^nrrvjnt of personnel
Agency evatoauon and ra-
POrta,
3910
35210
Dale led.
35 ISO.
Sttwrvrson P'og/a/
39600
35600
19605
.35607
.35911
35813
39020
39623
JS8J4
35626
36 979
19 630
Scope and purpose ... -..
Deftnrtona - -
35100.
35109
Oetermnauon of auoonerm .. : 35 11S. 35 IJO:
Rale of Federal assistance
Appbcaoon lor grants.
Lmtauon on grant award ...
AjowaCHe coau
35155
354O5
35.130: 35 140
35410
Pan X
Budget penod .' 39 US
Reducbon 01 grant amount
Slate program plan
Program hmrtaBons
Ass^nment of personnel
15.150
35.130: 35.140;
35 141; 35.143.
35 ISO
Deleted.
(Meted
9Ut« Underground Water Sovc* Prorectioo Program Grants
35650
36653
39655
35654
35 657
35659
35660
3(661
35662
3»«4
15668
05670
3967$
19.660
Scope and purpose
Oerirxttana
Detemwiation of allotments
Delermnabon Of raalkx-
menu.
Bale of federal assistance . .
EhgOMy lor gram ewanl
UmruBon on grant award
A-99 QeennghouM r«*aw ..
AllowaIKe oosta — ..
Sut)gel panod .._
Reduction of gram amount
Annual State program gram
plan.
Alignment cf personnel
Program evaluation and n>.
port*.
35 100.
35 105
35115
35154
35455
Deleted.
35460
Pert X
Part 30
35 135
35 ISO
35130: 39 .149.
35 I4I;35 143
Deleted
35150
9or*d «nd Hazardous waj:e Management Progtasn
G/anu
35700
35701
35702
35.704
19708
35706
96.716
35712
15.714
19716
39.718
35.770
Purpose
Oefirtuona - _
Summary of program
EnoOlity tor •urvlng
35100.
35105.
35 MO
35 141
Allotments _ 35 115
Regonal iltowancvs 35 120
Grant amount -.._
Reduction of grant amount
Federal snare
Buogoi penod
Stala program development.
Iravorvement of agencies
35 141 35
15 155
35150
35505.
35 135
35.130: 35
Deleted.
143:
140
IIS
-------
Federal Register / Vol. 47, No. 197 / TLesday. October 12. 1982 / Rules and Regulations 44947
CM
lac oon
3577?
35 724
35728
35728
CM MM
Program otewei'U
Oaannghouse n*fl#»
Puoec pe/ncceaon
at
' "-'• New
35130
PartX
Pan 25.
IS 141
35734
35738
35.738
35740
3574J
33744
grant*
Aural eommvnibes e534»>
anc*.
Special communrMa
Lmuoons on award
Adnarenca to Budget no-
Program evaluation and re-
porting.
Deleted
Deleted
Deleted.
Part 30
Part 30
15150
*aa»a>«.« lor Peitooe Enlaceiiieni and Apptcalo
CanAnoon Progreme.
15750 : Scope and (
15751 I
3S7SJ Eligttlny
35753
35755
35758
15781
13784
35767
Apprcaeon mormuxi
Appecaoen evuuaBon
ABulmefiu and liiuitjutton of
....; 33 100
35.104
3S 540-. 35 BOO
Pan 30
35140
35.141
35120
Aopacator
Amount and i«a»»'injii
B«t» o< f
13761 Enforcement fund) 35113
05783 Aopfc^lor cerrfcanon furxn 15.115.
39141: 35 143.
31135.
35 535: 35 603
13769 Reductnn o) amount ( 15 ISO
35 771 I Budget oenod j 15.135.
35775 ; Program pian ., 35.130
3S.ne ! Program aiementa.. 35.130
15 787 ! Program evaluaaon I 35 ISO
15.788 Rapprwig J 15.150.
SuDpan F—Slate Kaniuamrjui Assistance Granta
IS 1000 j PurpcM and scopa.
35 10051 Po«Y
35 10101 Aeptcieon lor gnnt
- 3S.lOiS| ftgowy (or funong
35 ids Umnaoont on awvd
35 1070) Grant amount ana awaro...
35 10JSI Prjymam
35 1030' Dmgauon agrcwnvni
. 35 1033 PUOK eanjooioon
15 10351 Aonmrca to Budget no-
I rrvjln
IS 1040; Program evaluation and re-
I noting.
IS 104V Reoucrton ol granl amount
15-050 Onpuiet
35 100; 35 300-.
353000
35 3005
; 35.140-. Pan X
35300
35305: 35310:
352020
35 115
I Part 30.
. 35 1JO-. 15310-.
353010.
353015.
3S3020
35 3035. Pan 25
Pan 30
35 ISO 353025
; 35 iso
i. 35 3030. Part 30
Suboart G—S/ants for water Quality Planning. Management
and imptementaton
OS 'SOOI PurpOM and ICOOt
35 1501 I ApDhcaolity
15 '502 ' Oef.-vtnns
OS 1503 Program summary—
IS I SOS Water qu»i»y ooaH
35 IS071 PUMC DartKoanon
35 1S09: Conunung planrtrtg process .
3515ii' Assessments and Stale
strategy
35 1513. WOM worn program .
15 1515 Stale'EPA Agreemen
35 1517] Cnnflct reunion
35 1519; Selection ol » 208 agenoev
3SiS2llwater quairry management
I pianmng,
3S IS231 Conifcabon o> wOU rMm ...
05 U2SI Renewing after approval
33 I527| Eveluatnn of pertormence ...
3S 15291 Cnange m agency designa-
| Oon.
33 iSOl Intergovernmental coorone-
ton.
" '5331 impiameniauon
| 35 '00
.! OS '00
.! 35 105. P»n 130
.] 35130. P»rt 'X
I Pan 130
.! Pan 25
Pan tx
i Pan IX
! 35 13O. 35 135.
35 141. 35 143
35 150
Deleted
OeKted
Pan 130
Pan 130
Part IX
Pan IX
Pin 130
Pan 130
Pan IX
Pan IX
CM
tenon
OS 1535
CM 00. ' ' • 1 New
Aaotmenn and reanolments..
35 1S37; Grant hrrtuuons and adrrwv
35 IS40
ratraoorv
manure aoenoet
OS IS42I Terrnnaoon 01 reuoTjog
15 ISiO
water ouakTy tundarm
OS US. 05.155.
35 130. 35105:
OS I40-. 3S 141
35 145. 35 ISO.
OS 155. 15240.
OS 255. 35760.
Pin 30
Deteleo
Detoted
Pin 131
Response to Comments
During the public comment period on
the proposed rule, which was published
in the Federal Register (46 FR 25912) on
June 15.1982. we received sixteen letters
and five telephone calls. Several of the
letters totally supported the proposed
rule. The other commenters supported
the rule In general but recommended
changes to particular sections. We made
changes to the regulation in response to
the comments we received. No major
changes were required. We address all
the changes suggested by commenters in
the following section on changes to the
previous regulations.
Description of Changes
EPA developed this regulation in
conjunction with associated program
regulations to clarify and standardize
the procedures for awarding and
managing financial assistance to
continuing State and local
environmental programs. The regulation
establishes uniform, simplified
requirements and procedures for nine
assistance programs. It also identifies
requirements unique to ea.ch program.
In the process-of developing one
regulation for all nine programs. EPA
made several changes which will make
it easier for States and local
governments to do business with the
Agency EPA has attempted to make this
regulation clear and concise, so that
applicants will be able to understand
and use it easily. The regulation is also
designed to be flexible, so that the
Regional Administrator and the
applicant will be able to develop
processes more appropriate to their
needs. Finally, the regulation reduces
the.paperwork required of applicants.
The specific changes are described
below.
Continuing Environmental Programs
The regulation makes clear in § 35.100
that the financial ojSista.i^c ov.0.Jad
under the regulation supports
environmental programs which are
"continuing." that is. which will not be
completed during a project period which
is definable. Such programs can receive
continuation awards under an
application process which is less
rigorous than the process for new ...
awards. Most importantly, as explained
in 5 35.141. a recipient of a continuation
award may be reimbursed for allowable
costs incurred between the beginning of
the budget period and the date of awurd.
if those costs are covered by the
approved application. Continuing
programs may also receive Federal
Funding under a continuing budget
resolution enacted by Congress.
Definitions
The regulation contains in 5 35.105
definitions of various terms relating to
financial assistance. Several of the
definitions are new, while others are
taken from the existing regulations.
Since not all of the existing regulations
use the same terms in the same ways.
the reader should become familiar with
the new definitions to avoid
misinterpretation.
One commenter suggested that we
define "budget period" and "continuing
program" and revise the definition for
"continuation award" accordingly. Part
35 supplements the general assistance
requirements in Part 30. Since Part 30 -
defines all the generally applicable
financial assistance terms, including
"budget period." we do not believe it is
necessary to repeat those definitions in
this regulation. We agree that the.other,
changes are appropriate and revised
§ 35.105 accordingly.
Another commenter suggested that we
should revise the definition for
"recurrent expenditures" to exclude
certain equipment purchases. We agree
and revised 5 35.105 accordingly.
Summary of Annual Process
The regulation contains in § 35 110 a
brief summary of the financial
assistance process.
One commenter requested
clarification of the summary of the
annual process in 5 35.110(a). He
questioned'how planning targets are
derived and whether EPA will provide
planning targets and program guidance
for all programs, including State
administration and water quality
management planning. EPA will provide
planning targets and program guidance
for all programs. We revised § 35.110(,i)
and § 35.120 to clarify the process and
our intent.
The same commenter suggested that
§ 35.110(b) should be revised to allow
the Regional Administrator to approve
the work program as soon as possible
rather than waiting for funds to become
available. We agree, and we revised
§ 35.110 accordingly.
-------
44948 Federal Register / Vol. 47, No. 197 / Tuesday. October 12. 1982 / Rules and Regulations
Allotments and Reserves
The regulation lists in } 35.115 all the
factors which the various statutes and
regulations require EPA to consider in
allotting funds among the States.
Congress determines the construction
grant allotment, from which the Slate
proposes reserves for State
administration and water quality
management planning. For the other
programs, the regulation will form the
basis for determining Slate allotments.
Section 35.115 does not change EPA's
allotment process. As under existing
regulations. EPA regional and
Headquarters staff, in consultation with
Slate, interstate, and local agencies and
affected constituent groups, consider the
relevant factors, determine appropriate
sources of data and relative weights of
the factors, and formulate an allotment
for each program In each State. Except
in the hazardous waste management
program, the regulation does not create
any changes in the actual allotment
distribution (the percentage of each
program's budget request or
appropriation allotted to each Stale). For
hazardous waste management, the
regulation no longer contains a
requirement for a minimum allotment to
each State of one-half of one percent of
the sums available. EPA has eliminated
that provision because it is not required
'by the Solid Waste Disposal Act. as
amended. "•.<-
Several commenlers were concerned
about the allotment criteria in 5 35.115.
particularly those for the hazardous
waste management program. They were
concerned thai the allotment language
was very general and that differing
interpretations from year to year could
disrupt the continuity of program
planning.
We agree that "roller coaster" funding
is undesirable, especially for newer
programs like hazardous waste
management, and we do not want to
create the potential for sucb erratic
funding/However, the formulas in the
previous regulation did not guarantee
constant State funding levels or program
continuity, even assuming stable
appropriation levels. For hazardous
waste management for example, the
previous regulation allocated funds in
part on the relative share of the volume
of hazardous wastes generated and
number of hazardous waste generators
in each State. Those statistics on
hazardous wastes change from year to
year. Such variations could alter relative
State shares of available funding.
We are afraid that rigid formulas,
subject to such variations, might lead !o
undesirable funding shifts because the
statistics the Agency would be
committed to using might not continue to
provide an appropriate distribution.
Therefore, we removed the rigid
formulas for the previous regulation to
give us the flexibility both to put the
money where the problems are and to
protect program continuity.
While we replaced the rigid formulas
with statutory criteria, we have not
actually changed the formulas. The
existing formulas are based on the
statutory criteria. EPA regional and
Headquarters staff will continue to
consult with State agencies and affected
professional organizations, such as the
Association of State and Territorial
Solid Waste Management Officials.
before revising the existing formulas.
Two commenters did not support our
eliminating the minimum allotment of
one-half of one percent of the sums
available for hazardous waste
management. They were concerned that
without it they would not receive
enough money to manage an effective
program. We feel, however, that EPA
allotment procedures are sufficient to
allow us to distribute these funds to
meet the needs of all States and that
minimum allotment requirements
restrict our ability to target funds.
Another comrnenter questioned EPA's
interpretation of Clean Water Act
language relative to 205(J) reserves. He
did not think the Act required a - ••••'••
minimum reserve. EPA disagrees. Based
upon the statutory language and
legislative history, we feel Congress
required the Administrator to reserve a
minimum of $100.000 from each State's
construction grant allotment for water
quality management planning activities.
However, because $100,000 is such a
large percent of the allotments to Guam.
the Virgin Islands. American Samoa, the
Trust Territory of the Pacific, and the
Northern Mariana Islands, the minimum
is waived for those areas.
Planning Targets
After State allotments are determined,
the second step in making funding
decisions is the development of a
planning target for each applicant to use
in preparing a work program. The
regulation reiterates in 5 35 105 the
explanation from the previous
regulations that "an allotment is not an
entitlement" and explains in 5 35.120
that an applicant's planning target is
also based on the Regional
Administrator's evaluation of each
applicant's ability to use allotted funds
effectively. Of course, no Regional
Administrator will disrupt any -
continuing environmental program by •-
arbitrarily issuing planning targets
which are significantly less than the
allotments.
Program Guidance
The regulation contains in } 35.125 a
discussion of program guidance which -
was previously contained in each of the
separate grant regulations. The previous.
regulations indicated that guidance
would be published "in February" or "as
soon aa practicable after the President ••*
submits his budget to Congress." This
regulation does not specify the timing '
for guidance, because the Agency is still
developing a revised guidance process.
EPA is still committed to providing
guidance in time for applicants to use in
structuring work programs covering
agreed upon budget periods. The
Agency is currently evaluating the
process and'timing for producing and
disseminating operating guidance for
use by applicants.
We requested comments on the timing
of guidance to help us in our evaluation.
We received only two comments on this
issue. One pointed out the importance of
timeliness and the other recommended
that the applicant be allowed to base its:
application on the most recent guidance
it had received prior to the beginning of
its budget period. Both commenlers
pointed out that timeliness is
particularly important since the
regulation allows applicants to use a
budget period other than the Federal • ...
fiscal year. We agree and are
recommending that national program
managers commit to timely guidance.
EPA's Office of Water has already
announced its intention to provide
guidance on national priorities.
performance areas, and resource
assumptions each February as part of •
the Office of Water Operating Guidance
and Accountability System.
One commenter was concerned that
the regulation placed total emphasis oo
EPA priorities and judgments and
eliminated the State's ability to select
from among the national objectives and
priorities. He suggested that provision
should be made for consultation
between the Regional Administrator and
the applicant to discuss Headquarters
guidance before regional guidance is
provided to the applicant. The
opportunity to exchange views
informally is available during the
development of planning targets and
work programs. If the State desires a
more formal process, such an
opportunity is provided during the
development of State/EPA Agreements
(SEAs).
Work Program Development _,
The regulation defines "work
program" in § 35.105 as "the document
which identifies how and when the
120
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Federal Register / Vol. 47, No. 197 / Tuesday. October 12. 1982 / Rules and Regulations 44949
applicant will use program funds to
produce specific outputs." The
requirements for an acceptable work
program are contained in §35.130. which
also indicates that the work program is
part of a complete assistance
application.
Although the requirement for a work
program is essentially unchanged from
the previous regulations, this regulation »
includes three revisions which simplify
the paperwork required of applicants
and allow each applicant to submit the
work program developed for its own use
to meet EPA's application requirements.
First, the regulation eliminates the
requirement from the previous
regulations that the work program be
developed in a specified format. Instead,
EPA will include in annual guidance the
program elements which the Agency
uses to manage its programs and to
justify its budget to OMB and Congress.
An applicant is not required to present
its work program in a specified format
but will be allowed to use its own
format, if the Regional Administrator
agrees that it contains the information
EPA needs.
Second, the regulation simplifies the
narrative justification section previously
required in Part IV of the assistance
application. An applicant is required to
submit only its proposed work program,
a statement certifying its consistency
with EPA-approved documents such as
State strategies, and an evaluation of
progress under its_current work program
to meet the requirements of Part [V. Any
. other specific information previously
required as part of the application may
be negotiated as output commitments
under the assistance agreement.
Third, the regulation clearly limits the
definition of "maintenance of effort" to
the applicant's expenditures in an
approved program, such as activities
•funded under section 105 of the Clean
'Air Act. This allows the applicant to
•ubmit its entire work program in a
particular medium without fear of being
.held to a more broadly defined
maintenance of effort requirement. For
example, an agency may submit its
entire air pollution control work
program, and in future years EPA will
require the agency to maintain only the
level of expenditure associated with its
approved section 105 air program. Under
the previous regulations, the agency was
required to maintain a level of
expenditure associated with its entire
*fr program. This change does not allow
'Pplicants to recompute existing
Maintenance of effort levels but, rather,
"nuts what will be considered to
Increase that level in future years.
We received several comments in
•upport of { 35.130. We also received
comments from one comrnenter who had
three concerns.
First he felt that the requirement to
"specify the work years and the amount
and source of funding allocated to each
program element" was "contrary to the
proported intent of this revision." Our
stated intent was "to eliminate
unnecessary requirements and to
develop consistency for as many of the
remaining requirements as possible."
While we tried to reduce the
requirements of the previous regulations
to statutory nunimums. we retained
requirements that are needed for sound
program management This is one of
those requirements. EPA uses this
information to evaluate the application
and the reasonableness of proposed
costs. It also uses it. as explained in the
preamble, to justify its budget to OMB
and Congress. We expect the applicant/
recipient to provide us its best estimate
of these amounts in its application and
progress reports. We revised § 35.130 to
clarify our intent. It should also be noted
that EPA does not intend for the
recipient to set up an accounting system
to track funds by program element.
Second, the cocunenter did not feel
that we should be concerned with the
eligibility and appropriateness of
planned expenditures in reviewing a
work program. He suggested that we
should leave those concerns to financial
audits. We respectfully disagree with
this approach and do not. therefore, feel
that any changes are necessary. We feel
that it is better to provide applicants/
recipients with direction during
development of the work program and
before expenditures are made, rather
than to wait to evaluate their program
through audits. The latter approach
might require-EPA to recover funds
spent by recipients on activities they
believed, erroneously, to be eligible for
funding. We think the recipient should
be provided the opportunity to adjust its
program along the way to minimize
potential losses.
Finally, the comrnenter asked for
clarification of the requirement for a
205(g) work program to "include any
outputs required under an authorization
of delegation agreement." This language
is intended to reemphasize the
requirement in 5 35.140 that the work
program be consistent with the
delegation agreement.
Budget Period
The regulation in 535.135 allows the
applicant to consult with the Regional
Administrator to establish the budget
period for the assistance award, instead
of requiring the applicant to use the
Federal fiscal year. The budget period in
the time period specified in the
assistance agreement during which EPA
authorizes the recipient to expend.
obligate, or commit funds to complete
the outputs. Based on the comments
EPA received on earlier drafts of this
regulation, the Agency anticipates that
many States will want to convert the
budget periods for the assistance they
receive to their own fiscal year, which
for 48 States and Territories is July 1
through June 30.
To make the transition from the
Federal to the recipient's fiscal year, the
Regional Administrator could award
financial assistance for a work program
starting October 1 and ending the day
before the beginning of the recipient's
fiscal year. The Regional Administrator
would then reserve the balance of a
recipient's planning target for future
award to the recipient. For subsequent
awards, the recipient would develop a
work program based on its own fiscal
year. The Regional Administrator would
make a partial award from the balance
of the previous year's planning target.
Once Congress appropriates funds for
the next Federal fiscal year, the
Regional Administrator would.increase
the award as necessary to complete the
approved work program. The Regional
Administrator would again reserve the
balance of the recipient's planning target
for future award to the recipient.
-We received several comments in
support of the flexibility provided in this
section. Two commenters noted.
however, that the proposed language
suggested that the budget period was
the prerogative of the Regional
Administrator. They recommended that
the applicant be allowed to choose a
budget period subject to the approval of
the Regional Administrator. We agree
and revised §35.135 accordingly.
The Application Process
The regulation substitutes one uniform
application process and set of
requirements for the separate, differing
processes and requirements of the
previous regulations. This regulation
includes three revisions which simplify
the paperwork required of applicants.
First the regulation eliminates the
requirement for a preliminary
application and allows each applicant
and Regional Administrator to develop
their own process for reaching
agreement on a work program and
assistance application. Some applicants
will probably continue to submit formal
preapplicalions. while others may prefer
face-to-face staff level negotiations
early in the process. In either case, the
applicant is responsible for early
resolution of all issues which could risk
121
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44950 Federal Register / Vol. 47, No. 197 / Tuesday, October 12. 1982 / Rules and Regulations
delaying approval of the assistance
application and award of assistance.
Second, the regulation reflects the
Agency's newly adopted Slate/EPA
Agreement (SEA) policy by removing
the requirement that a State sign an SEA
before receiving EPA financial
assistance. However. EPA continues to
believe that the SEA is a valuable tool
to improve agency relationships with
States and use resources more
efficiently. From now on. the Regional
Administrators will be responsible for
assuring that all Slates have an
opportunity to participate in the SEA
process. Any State which wishes to
maintain the process may do so.
Third, the regulation eliminates the
requirement for an applicant to
document that the proposed work
program is consistent with all applicable
EPA-approved State strategies, program
plans, and delegation or authorization
agreements. Instead, applicants will
only have to list such documents and
certify that the proposed work program
is consistent with them. As part of the
application review process, the Regional
Administrator may require additional
explanation or clarification on the
consistency of these documents.
We received several comments on this
section and made a number of changes.
One change was structural. For clanly.
we separated the proposed § 35.140,
"Application for assistance." into two
sections. 3 35.140. "Application for
assistance." and § 35.141. "EPA action,
on application." Other, more substantive
changes are discussed below.
During internal Agency review,
several commenters were concerned
that we had eliminated the Regional
Administrator's authority to award an
amount less than that requested. We
had intended for the proposed
5 3S.140(b) to provide him that authority.
To clarify Agency policy, we added a
new section. § 35.143. "Grant amount."
the section makes clearer that the
Regional Administrator still has the
authority to reduce the proposed amount
of funding if the proposed output
commitment is not consistent with the
level of funding requested or with
national priorities. This provision makes
Agency guidance establishing program
priorities binding on grant recipients.
Another EPA commenter was
concerned that 60 days was not enough
time for regional review and negotiation
of a work program. He suggested that
the application be required 90 days
before the beginning of the budget
period. We disagree. We feel that face-
to-face negotiations, discussions, or
submittals before formal application
should provide the applicant and the
region the opportunity to resolve most
differences before the submittal of the
application. 60 days should be plenty of
time to review the application once it is
submitted.
Another commenter had several
concerns. First, he thought it was
inappropriate to require the applicant to
submit a discussion of his performance
to date as part of an application. He felt
that the evaluation of past performance
is adequately covered in 5 35.150. We do
not disagree. However. OMB Circular
A-102 requires submittal of such
information with the grant application.
To make it easier for applicants to nil
this requirement, they may submit their
most recent progress report where one
exists.
He also was concerned that the 60-
day time frame for application submittal
would be difficult to implement because
it would require the A-95 review
process to begin the end of June. It is not
clear to us how this is a problem since
the previous regulation required
submittal 90-days prior to the budget
period. That meant the A-95 review
process had to begin by the end of May.
The change gives the applicant an
additional 30 days to file for A-95
review. Any problem which might exist.
however, should be solved by the
revised intergovernmental review
process being developed in response to
Executive Order 12372. That Order
instructed the Director of OMB to
revoke Circular A-95 and Federal
agencies to issue, by April 1983, new
requirements which rely on the States'
processes to review Federal assistance
applications,
The same commenter also suggested
that the Regional Administrator should
be required to complete his review
within 60 days. We agree and revised
the proposed § 35.140(b) accordingly.
This section appears in the final rule as
§ 35.141.
Finally, he questioned the benefit of
allowing an applicant to certify that its
work program is consistent with various
documents if the Regional Administrator
could require clarification. We think this
section significantly reduces the
application burden of the previous
regulation, even considering the chance
the Regional Administrator may need !o
request clarification. We expect such
requests will be the exception rather
than the rule. We feel it is important.
however, to reserve that right for the
Regional Administrator in case
questions develop during the application
review process.
Another commenter was concerned
that 5 35.140 commits applicants to
outputs without consideration that
funding in the amount of the "planning
target" may not become available. If the
Congressional appropriation is
insufficient to provide applicants their
planning target. EPA will negotiate
revisions to work programs to reflect
any reductions. The applicant is not
committed to the outputs in the work
program until he signs and accepts the
award. Similarly. EPA approval of the
work program is not a commitment of
grant funds.
A final commenter was concerned
because we eliminated references to
Clean Air Act Slate Implementation
Plans (SIPs). He wanted to make sure
that financial assistance would be
provided for SIP-related activities. We
agree that SIPs are the driving force
behind air pollution control programs
and that SIP-related activities are
eligible for funding. We revised the
proposed § 35.140(b)(l) to indicate that
outputs are approvable if they "are
consistent with EPA guidance or
otherwise demonstrated to be necessary
and appropriate." This section appears
in the final rule as 5 35.141(a).
Consolidated Assistance
The regulation indicates in J 35.145
that any applicant eligible to receive
and administer funds from more than
one assistance program may submit an
application for consolidated assistance.
An applicant for consolidated
assistance prepares a single budget and
work program covering all assistance
programs included in the application.
Although the recipient of consolidated
assistance must meet all the statutory
requirements governing the use of funds
in each assistance program, EPA
believes that the consolidated process
can save applicants considerable time
and money. Consolidation was also
allowed under previous regulations. Any
applicant interested in consolidated
assistance may obtain additional
information from the Regional
Administrator.
A logical example of the program
benefits of consolidation is found in the
water quality management (WQM)
program. The Clean Water Act provides
funding for WQM activities in sections
106, 205(g), and 205(j). By consolidating
these work programs and assistance
applications in the manner suggested by
this regulation. Stales will be able to
coordinate available Federal funding to
accomplish their WQM priorities
efficiently. A State which wants to
address the water quality problems of a
priority water body by using 106 funds
for monitoring. 205(j) funds for
determining total maximum daily loads.
and 205(g) funds for permitting may use
a consolidated assistance application
and related work program to assure tha'
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the activities being proposed in the
priority water body are completely
coordinated.
One commenler suggested that we
remove (he last two sentences in
§ 35.145 to encourage grant
consolidation. We agree that such a
change would make consolidated giants
more attractive. However, under
existing statutory authorities, grant
funds musl be awarded and tracked by
separate program appropriation. Also.
the individual EPA programs need the
program element information to manage
the separate programs and to justify the
budget for each to OMB and Congress.
We cannot, therefore, remove these
requirements.
Another commenter. however, noted
that Insular Areas interested in
consolidating financial assistance under
Title V of Public Law 5 95-134 may be
exempted from various requirements of
this subpart. We agree and revised
i 35.145.
Management and Evaluation
The regulation retains in simplified
Form the management responsibilities
contained in the previous regulations.
As before, each recipient roust expend
resources according to the approved
application, which may be amended at
any time by mutual agreement of the
recipient and the Regional
Administrator. The Regional
Administrator will develop, in -.
consultation with the applicant, a
process for evaluating the recipient's
performance. The Regional
Administrator will limit evaluation to
that which is necessary for effective
management, with the intervals for
evaluation included in the assistance
agreement. The evaluation process must
be consistent with existing program-
specific agreements (e.g.. a construction
grant delegation agreement). As in
previous regulations, the Regional
Administrator may terminate or annul
any financial assistance if the recipient's
Performance under the approved work
program is not satisfactory and the
situation cannot be resolved through
negotiation.
One commenter noted that 5 35.140(a|
"required" the applicant to submit as
Part of an application "a plan for
assessing and reporting periodically the
accomplishment of status of outputs."
He suggested that this was an
unnecessary burden to the recipient.
"nee nothing required the Regional
Administrator to follow that plan. He
suggested that 5 35.150 be revised to
allow the Regional Administrator to
Develop, in consultation with the
aPplicant. a process for evaluating its
performance/We agree and revised both
sections accordingly.
flea/location
Section 35.155 of this regulation
simplifies and clarifies EPA's policy on
use of program funds which have not
been awarded by EPA. Funds reserved
under section 205(g) of the Clean Water
Act which have not been awarded will
be returned to the Stale's construction
grant allotment to support eligible
construction activities, while funds
reserved under 205(j) which have not
been awarded became subject to
resllotment to other States under
5 35.2010 of this subchapter. These funds
are not available for reallocation under
§ 35.155. For the other environmental
programs. EPA will consider
reallocating any funds not awarded to
applicants to achieve the objectives for
which Congress appropriated them.
Funds remaining in a State's allotment
afler an initial assistance award and
commitment to that State for that year
remain in the region for award during
the year. The Regional Administrator
may use such funds to make
supplementary awards to that State for
that program or. subject to any
limitations contained in appropriations
acts, to support a Federal program
required by law in that State in the
absence of an acceptable State program.
The Regional Administrator may also
use such funds to supplement awards
for that program to other eligible
applicants within the region. At the end
of the year, funds not awarded by the
Regional Administrator will be
reallocated by the Administrator to
accomplish the objectives of that
program.
Funds remaining in a Slate's allotment
because there is no assistance award to
that State in that year may be used in
two ways. First, subject to any
limitations contained in appropriations
acts, the Regional Administrator may
use such funds to support a Federal
program required by law in that Slate in
the absence of an acceptable State
program. Otherwise, the Administrator
will reallocate any available program
funds to accomplish the objectives of
that program.
Two commenters did not understand
what we meant by "unused" funds. We
revised § 35.155 to clarify that we meant
funds which have not been awarded by
EPA..
Several commenters supported most
of the reallocation procedures, but a few
questioned the inconsistencies in the
procedures For 205(g) and 205(j)
reserves. They.thoughl 205(j) reserves
should return to the State in the same
manner that 205(g) reserves do. The
Clean Water Act specifically provides
for the 205(g) reserves to return to the
Slate. It does not provide similar
procedures for 205(j) reserves.
It should be understood, however, that
States which reserve more than the
S100.000 minimum for 205(j) may request
the Regional Administrator to reduce the
reserve to the minimum at any time
before those funds become subject to
reallotment. Funds so released return to
the Stale's allotment For construction
grants. However, any funds remaining in
the reserve after their statutory period oF
availability to the Stale will be
reallotted to other States as construction
grant funds. As indicated in § 35.155.
details of these administrative
procedures are contained in'§ 35.2010 of
this subpart and should be referred to
for further clarification.
One commenter noted that the
regulation did not deal with funds which
recipients are unable lo obligate before
the close of the previous year's budget
period. He suggested that we expand the
regulation to provide the Regional
Administrator the authority to reallocate
such funds. Once EPA awards Funds to
an agency. EPA cannot reallocate them
unless we terminate the award. The
Regional Administrator may. however.
use the unexpended balance from the
previous budget period to offset part of
the costs for the current budget period.
That process would make funds
available from the Stale's allotment for
that year for reallocation as described in
5 35.155(a). No changes to the regulation
are required. •
Three commenlers disagreed with the
provision of 5 35.155(b)(l) which allows
the Regional Administrator to use
financial assistance funds to support a
Federal program required by law in a
State in the absence of an acceptable
Slate program. Two of these
commenters felt the provision was
contrary to Congressional intent. They
fell that appropriations for financial
assistance programs were to support
Slate programs and not Federal
programs in the States. They:felt il was
EPA's responsibility to determine what
programs the Agency would have to
operate and to request sufficient funds
in its own budget. EPA believes that
appropriations for some of the financial
assistance programs are intended to
implement specific required programs
diiJ that, where the State cannot
implement acceptable programs. EPA
may use the funds to implement Federal
programs required ir. the absence of
Stale programs. EPA has no way of
knowing what programs it is going to
have to operate at the time it develops
its budget request. We. therefore, must
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44952 Federal Register / Vol. 47. No. 197 / Tuesday. October 12. 1982 / Rules and Regulations
rely on the appropriations for the
financial assistance programs to support
Federal programs in the State.
Another commenler wanted (o know
whether a Regional Administrator could
use a State's allotment to pay the
salaries and expenses of EPA employees
to support a Federal program in the
Slate where one is required. Section
35.155(b](l) indicates that the Regional
Administrator may use a Stale's
allotment "subject to any limitations
contained in appropriations acts." The
current appropriation* acts do not allow
EPA to use Slate allotments to pay EPA
salaries and expenses. EPA may.
however, use a State's allotment to
contract for work to support a Federal
program where one is required. We feel
that the language in § 35.155(b)(l) is
appropriate since those limitations may
change with annual appropriations.
Program Sections
These sections contain the assistance
provisions uniquely applicable to each
program.
One commenter was concerned that
Subpart A of Part 35 was redundant
with sections of Part 30 and the
authorizing statutes. He recommended
thai we eliminate the redundant
sections. We did not include many of
the redundant sections in earlier drafts
and we received numerous comments-
suggesting that we include them.,
Commenters on Ihe earlier drafts
preferred having all the requirements in
one place. After considering all Ihe
comments we have received throughout
the regulatory development process, we
decided not to eliminate these sections.
Another commenter was concerned
that we did not expressly refer to Indian
tribes as eligible applicants for all of the
covered financial assistance programs.
While the Agency recognizes the special
status of Indian tribes, the language of
this regulation follows the language of
the various authorizing statutes for the
identification of eligible applicants. The
statutes generally specify State and
local governments and do not separately
cite tribal governments as eligible
applicants. Tribal governments are.
however, eligible under these statutes to
the extent they can be legally construed
to fall within Ihe definition of Slate or
local government. The commenter
suggested that Indian tribes should be
treated as States for the purpose of
receiving financial assistance. EPA has
a task group proposing Agency policy on
this and other issues. If it is decided that
Indian tribes should be considered
Slates and eligible for funding, nothing
in this regulation would alter or limit
that eligibility. We. therefore, do not
believe that any changes to this
regulation are necessary.
Air Pollution Control (Section 105)
During internal Agency review, one
commenter correctly noted that we had
failed to include the provision of the
Clean Air Act which limits the Regional
Administrator's authority to provide
maximum Federal shares. We revised
§ 35.205 to make it clear that the
Regional Administrator may only
provide three-fourths of the approved
costs of planning, developing.
establishing, or improving an air
pollution control program or three-fifths
of the approved costs of maintaining
that program to State, interstate, or
Intel-municipal agencies which have
substantial responsibility for carrying
out an applicable implementation plan.
Another commenter felt that, in order
to benefit from the new definition for
maintenance of effort in 3 35.210. an air
pollution control agency should be
allowed to redefine its maintenance of
effort level. The regulation does not
allow applicants to recompute existing
maintenance of effort levels. However.
we feel that an agency will still be able
to benefit from the new definition. Our
new definition allows an agency to limit
what will be considered to increase its
maintenance of effort level in future
years. It allows an agency to submit its
entire air pollution control work
'program and (based on its planning
target, its previous year's maintenance
of effort level, and program guidance)
select those activities in its total
program which will constitute its 105,
program for the year. The next year, the
agency must expend an amount of non-
Federal funds for its 105 program at
least equal to such expenditures during
the preceding year. The agency may
increase its expenditures for air
pollution control activities outside its
approved 105 program, but EPA will not
require it to maintain such increases.
The same commenter felt that the
Regional Administrator should not be
required to hold a public hearing to
determine that a reduction in an
agency's maintenance of effort level is
due to a non-selective reduction. Section
35.210 is a statutory requirement. It does
not. however, require the Regional
Administrator to hold a hearing. It only
requires him to provide notice and
opportunity for such a hearing. When a
request for a hearing is received, the
Regional Administrator is expected to
hold a hearing.
One commenter supported the
limitation in § 35.215 implementing the
statutory requirement that the Regional
Administrator "consult with"
appropriate officials, but he wanted us
to strengthen that statutory language to
require the "concurrence of" such
officials. He thought that such a
requirement would insure statewide
coordination of air quality programs. We
feel that the intergovernmental review
process being developed under
Executive Order 12372 to replace the old
A-95 review process and the
consultation required by this regulation
are sufficient to ir.sdre sidiewide
coordination. We respectfully decline to
exceed the statutory requirements to
regulate the application process
unnecessarily.
Water Pollution Control (Section 106)
One commenter suggested that we
include in \ 35.255 for the water
pollution control program an exception
to Ihe maintenance of effort requirement
similar to that in 3 35.305 for the State
administration program. The Clean
Water Act does not preclude us from
making an exception to the maintenance
of effort/requirement for the Slate
administration program, since the
requirement is an implementation of
legislative history rather than statutory
language. However. Section 106 of the
Act specifically requires an agency to
maintain its 1971 level of expenditures
to be eligible for a grant. No exceptions
are provided. We. therefore, cannot
revise the regulation to include such a
provisJon.
Another commenter suggested thai we
delete the words "permitting" and
"planning" from § 35.310(c) in order to
require the coordination of construction
grant management activities with all the
other activities. We included § 35.310(cj
to assure the coordination of water
quality management and planning
activities eligible for assistance from
more than one program. We want to
avoid duplication of effort. Construction
grant management activities are
generally supported entirely under
section 205(g] of the Clean Water Act.
While we agree that coordination of
these activities is advisable, we do not
think such activities will duplicate water
quality management and planning
activities. We did not make the
suggested change.
State Administration (Section 205(g))
One commenter supported the
flexibility provided in § 35.300 to use
205(g) funds for other than construction
grant management activities, but he
wanted to be reassured that EPA would
take a reasonable posture and work
with the Stales to protect the resources
needed to manage the construction grant
program. Section 35.310 requires the
Regional Administrator to award 205(g)
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funds for management of a substantial
portion of the construction grant
program before awarding 205(g) funds
for permit and planning activities. II also
limits the maximum amount of funds
that can be provided for permit and
planning activities to the funds
remaining in the Stale reserve after the
Regional Administrators allows for
funding the management needs of the
construction grant program under full
delegation. These restrictions reinforce
the fact that management of the
construction grant program is EPA's first
priority for use of 20S(g) funds.
Water Quality Management Planning
(Section 205(j))
One commenter was concerned that
205(|) funds could not be used to support
technical and planning efforts
associated with classification of streams
and standards setting. It should be noted
that the list of activities for which 205(j)
funds may be used were taken from the
Clean Water Act and. as indicated in
§ 35.350. the list is not all inclusive.
Section 205(j) funda may be used for the
activities the commenter.identified.
One commenter supported J 35.055 as
appropriate in authorizing States to
carry out water quality management
planning activities in conjunction with
local regional, and interstate agencies.
Four commenters requested
clarification of the phrases "shall
develop jointly" and "give funding
priority to" in relationship to the award
of 205Q') funds. In accordance with the
policy of Congress (as contained in
section 101(b) of the Clean Water Act),
EPA recognizes that the States have
primary responsibility for reducing and
eliminating water pollution. EPA.
therefore, interprets section 205(j)(3) of
the Clean Water Act to mean that the
State will develop the 205(j) work
program. The State must, at a minimum.
afford existing local, areawide. and
interstate planning agencies within the
State the opportunity to meet and
discuss the substance of the State's
proposed 205(j) work program. Where.
based on past water quality
management program history, such
planning agencies have been effective.
(he State should consider them as the
logical agencies to continue to conduct
water quality management planning
activities.
One commenter was concerned that
the language in § 3S.3S5(a) put the
^ejjiunal Administrator in a position to
define Slate policy. That was not our
intention. We have revised 5 35.3S5(a) to
reflect the language in the Clean Water
Act. EPA will defer to the State's
judgment on how best to comply with
this requirement unless the State clearly
violates the statutory intent. We do not
think it is necessary to revise the
regulation to further define the statutory .
language.
Three commenlers requested
clarification on the annual reports
required in § 35.3S5(b). Section 30S(b) of
the Clean Water Act requires a biennial
report on "the nature, extent, and causes
of water quality problems in various
areas of the State." Section 20S(j) of the
recent amendments to the Clean Water
Act requires an annual report in order to
receive 205(j) funds. EPA is in the
process of developing water quality
management regulations replacing the
programmatic requirements of the
existing 40 CFR Part 35. Subpart G, and
incorporating requirements of the recent
amendments to the Clean Water Act. In
developing that rule, EPA has
considered the reporting requirements of
the two sections. In order to minimize
the States' reporting burden. EPA will
propose that: (1) In the even years, when
the 305(b) report is due. it will serve as
the annual report for the purposes of
205[j); and (2) in the odd years, the Stale
may either certify that its 305(b) report
is up to date or provide an update. The
public will have an opportunity to
comment on that requirement when the
water quality management regulation is
proposed in the Federal Register.
Section 35.355 appears in the final rule
as 5 35.360.
Underground Water Source Protection
(Section 1443(b))
During internal Agency review,
several commenters suggested that we
should postpone implementation of the
limitation in § 35.460 which prohibits the
Regional Administrator from awarding
underground water source protection
funds to Slates which have not assumed
primary enforcement responsibility
(primacy). Section 1443(b) of the Safe
Drinking Water Act prohibits EPA from
funding non-primacy States two years
after EPA promulgates program
regulations. Based on the effective date
of the original program regulations, that
date was |uly 24,1982. However, as the
result of litigation. EPA had to revise
those regulations substantially.
Therefore, the commenters felt that the
effective date for the limitation should
be postponed. We have determined that
the regulatory revisions could delay
State program submissions by as much
as fourteen months. We have, therefore,
changed the effective dale for the
limitation to September 30,1983 to allow
non-primacy States time to
accommodate the changes. Since this
change affects applicant eligibility for
FY 1983 funding, we will issue
supplementary program guidance
implementing this change.
Hazardous Waste Management (Section
3011)
One commenter suggested eliminating
the requirement in § 35.510 that the
applicant must be the lead agency
designated in the hazardous waste
authorization agreement, where one
exists. Due to the multimedia nature of
the hazardous waste management
program, in many States several
different agencies are responsible for
the administration and enforcement of
the program. EPA believes, therefore.
that this requirement is necessary in
order to coordinate the responsibilities
and work programs of the various
agencies and to eliminate the potential
for duplication of effort. We have not
made any changes to the regulation. It
should be noted, however, that where a
State agency believes that its
responsibilities are so clearly defined as
to eliminate the potential for duplication
of other State agency efforts, it may
apply for deviation from this
requirement in accordance with the
procedures in 40 CFR Part 30.
Pesticide Applicator Certification and
Training (Section 23(a)(2))
One commenter suggested that we
should increase the maximum Federal
share for the pesticide applicator
certification and training program lo 85
percent. Section 23 of the Federal
Insecticide. Fungicide, and Rodenticide
Act authorizes for annual appropriation
enough funds to equal 50 percent of the
anticipated costs of this program. We
interpret that section to limit Federal
participation in each recipient's program
to 50 percent. We do not have the
authority to waive this statutory limit.
Regulation Development
One commenler suggested that we
should extend the comment period. He
thought each State should be provided
time to develop a consensus position.
He did not see the need for immediate
adoption of the regulation. We did not
feel that it was necessary to extend the
comment period. We provided State and
affected professional organizations
opportunity to comment on earlier drafts
of this regulation. We reviewed and
considered all of the comments we
received, even those which came in after
the close of the comment period, and
adopted appropriate suggestions.
Because this regulation implements
statutory and OMB requirements in a
less burdensome manner than the old
regulations, we were interested in
finalizing it as soon as possible. Many.
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44954 Federal Register / Vol. 47. No. 197 / Tuesday. October 12. 1982 / Rules'and Regulations
applicants called to encourage us to
finalize the regulation so it would be
effective for financial assistance
awarded after September 30.1982.
Therefore, we did not extend the
comment period.
Under Executive Order 12291, EPA is
required to judge whether a regulation is
"major" and. therefore, subject to the
regulatory impact analysis requirements
of the Order. We have determined that
this regulation is not "major" as it will
not have a substantial impacl on the
Nation's economy or large numbers of
individuals or businesses. There will b«
no major increase in costs or prices for
consumers, individuals, industries, or
Federal. Slate, or local governments.
The rule was submitted to the Office of
Management and Budget for review as
required by Executive Order 12291.
Under the Paperwork Reduction Act
of I960. 44 U.S.C. 3501 et seq.. the
information provisions under 8 35.140 in
this rule will be submitted for approval
to the Office of Management and Budget
(OMB). They are not effective ualil OMB
approves them. A notice of that
approval will be published in the
Federal Register.
List of Subjects in 40 CFR Part 35
Air pollution control. Grant
programs—environmental protection.
Indians. Pesticides and pests. Reporting
and recordkeeping requirements. Waste
treatment and disposal. Water pollution
control.
Dated; October 1.1982.
Anne M. Gonuch.
Administrator.
For the reasons set forth in the
preamble. EPA is amending 40 CFR Part
35 as set forth below.
1. Part 35 is amended by removing
§ 35.002: all of Subpart B: §§ 35.1000.
35.1010. 35.1015. 35.1016. 35.1020. 35.1025.
35.1033. 35.1035. 35.1040. 35.1045. and
35.1050 of Subpart F: and §9 35.1501.
35.1513. 35.1515. 35.1517. 35.1535. 35.1537.
35.1540. and 35.1542 of Subpart G.
2. Part 35 is amended by revising
} 35.001 and by adding Subpart A lo
read as follows:
PART 35—STATE AND LOCAL
ASSISTANCE
S«c.
35.001 Applicability.
Subpart A—Financial Assistance for
Continuing Environmental Program*
35.100 Purpose.
35.105 Definitions.
35.110 Summary of annual process.
35115 State allotments and rntrvei.
35.120 Planning targets.
35.125 Program guidanct
35.130 Woi-k program.
Sec.
35.135 Budget period.
35.140 Application for aulilance.
35.141 EPA action on application.
35.143 Assistance amount.
35.145 Consolidated assistance.
35.150 Evaluation of recipient performance.
35.155 Reallocalion.
Air Pollution Control (Section 105)
35.200 Purpose.
35.205 Maximum Federal share.
32.210 Maintenance of effort.
35.215 ' Limitations.
Water Pollution Control (Section 106)
35.250 Purpoie.
32.255 Maintenance of effort
35.280 Limitation*.
35.300 Purpose.
35.305 Maintenance of effort.
35.310 Limitations.
Water Quality Management Planning
(Section 205(j))
35-350 Purpose.
35.355 Maximum Federal share.
3SJ60 Limitations.
Public Water System Supervision (Section
35.400 Purpose.
35.405 Maximum Federal share.
35.410 Limitations.
Underground Water Source Protection
(Section 1443(b))
35.450 Purpose.
35 455 Maximum Federal sfcare.
35.460 Limitations.
Haiardoui Waste Management (Section 3011)
3S.50O Purpose.
35.505 Maximum Federal share.
35.510 Limitations.
Pesticide Enforcement (Section 23(a)(I|)
15.550 Purpose.
35.555 Maximum Federal share.
Pe«dcide Applicator Certification and
Training (Section Z3(a)(Z»
35.600 Purpose.
35 60S Maximum Federal share.
5 35.001 AppncabJnty.
This part codifies policies and
procedures for financial assistance
awarded by the Environmental
Protection Agency to State, interstate.
and local agencies for pollution
abatement and control programs. These
provisions supplement the EPA general
assistance regulations in 40 CFR Part 30.
Subpart A—Financial Assistance for
Continuing Environmental Programs
Authority: Sees. 10S ind 301(a) of the Clean
Air Act. as amended (42 U-S.C. 7405 and
7601 (a)), sees. 108. 205(£). 205urpo««.
This subpart establishes in 5 35.100
through 5 35.199 uniform administrative
requirements and procedures for
financial assistance to State, interstate.
and local agencies for continuing
environmental programs. Sections 35.200
through 35.899 establish the assistance
requirements unique to each program
and cross reference regulations
containing substantive program
requirements. •
} 35.105 Definition*.
"Allotment. " An araourU representing
a State's share of funds requested in the
President's budget or appropriated by
Congress for an environmental program.
as EPA determines after considering any
factors'!Lndicated by this regulation. The
allotment is not an entitlement but
rather Lhe objective basis for
determining the range for a State's
planning target.
"Continuation award." Any
assistance award after the first award to
a State, interstate, or local agency for a
continuing environmental program.
"Continuing environmental
programs. "Those pollution control
programs which will not be completed
within a definable lime period.
"Output." An activity or product
which the applicant agrees'to complete
during the budget period.
"Planning target. "The amount of
Federal financial assistance which the
Regional Administrator suggests that an
applicant consider in developing its
application and work program.
"Program element."One of the major
groupings of outputs of a continuing
environmental program (e.g.,
administration., en/orcemejit.
monitoring).
"Reserve." A. portion of the State's
construction grant allotment which the
State proposes to set aside to use for
construction or permit program
management or water quality
management planning activities.
"Recurrent expenditures." Those
expenses associated with the activities
of a continuing environmental program.
All expenditures, except those for
equipment purchases with a unit
acquisition cost of S5.000 or more, are
considered recurrent unless justified by
the applicant as unique and approved as
such by the Regional Administrator in
the assistance award.
126
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Federal Register / Vol. 47. No. 197 / Tuesday, October 12. 19B2 / Rules and Regulations 44955
"Work program. "The document
which identifies how and when the
applicant will use program funds to
produce specific outputs.
5 35.110 Summary of annual process.
(a) EPA considers various factors to
allot among the States the funds
requested in the President's budget for
each financial assistance program.
except for those related to construction
grants, for which Congress determines
the allotments. From its construction
grant allotment, the State proposes
reserves for State administration and
water quality management planning.
The Regional Administrator issues a
planning target for each program to each
applicant based on the reserves and
allotments.
fb) Using the planning target and
guidance provided by EPA. each
applicant completes a standard EPA
application including a proposed work
program for each environmental
program for which it expects to receive
EPA funding. Alternatively, an applicant
prepares a consolidated work program
to support several individual
applications or a single consolidated
application. After the applicant submits
its application, the Regional
Administrator reviews it and, if it meets
applicable requirements, approves (he
application and agrees to make an
award when funds are available. The
Regional Administrator awards
assistance from funds appropriated by
Congress for that purpose.
(c) The recipient conducts its
activities according to the approved
application and assistance award. The
Regional Administrator evaluates
recipient performance to assure
compliance with all conditions of the
assistance award.
(d) Except for funds reserved under
sections 205(g) and 205(j) of the Clean
Water Act, the Administrator or
Regional Administrator may use funds
not awarded or committed to an
applicant to supplement awards to other
applicants for that program or to support
• Federal program required in the
absence of an acceptable Stale program.
835.115 State allotments and reserves.
Allotments and reserves provide an
objective basis for establishing planning
targets and funding levels for work
programs. Congress determines the
construction grant allotment, from which
the State proposes reserves for Slate
administration and water quality
management planning. EPA determines
toe allotments for the other financial
assistance programs based on the
Resident's budget request to Congress.
The factors and limitations considered
for each program are as follows:
(a) Air pollution control allotment
(Clean Air Act. section 105): population.
the extent of actual or potential air
pollution problems, and the financial
need of each agency to be funded with
the Slate's allotment. However, no State
will be allotted less than one-half of one
percent or more than ten percent of the
total.
(b) Water pollution control allotment
(Clean Water Act, section 106): the
extent of the State's water pollution
problem.
(c) State administration reserve
(Clean Water Act. section 205(g)): up to
four percent of the State's authorized
construction grant allotment as
determined by Congress or $400.000.
whichever is greater.
(d) Water quality management
planning reserve (Clean Water Act,
section 205(j)): not less than $100.000 nor
more than one percent of the State's
construction grant allotment as
determined by Congress. However, for
Guam, the Virgin Islands, American
Samoa, the Trust Territory of the Pacific
Islands, and the Northern Mariana
Islands, a reasonable amount shall be
reserved for this purpose.
(e) Public water system supervision
allotment (Safe Drinking Water Act,
section 1443(a)): the State's population.
geographic area, numbers of community
and noncommunity water systems, and
other relevant factors. However, no
State except American Samoa. Guam.
the Northern Mariana Islands, or the
Virgin Islands may be allotted less than
one percent of the total.
(H Underground water source
protection allotment (Safe Drinking
Water Act. section 1443(b)): the State's
population, geographic area, extent of
underground injection practices, and
other relevant factors.
(g) Hazardous waste management
allotment (Solid Waste Disposal Act. as
amended, section 3011): the extent to
which hazardous waste is generated,
transported, treated, stored, and
disposed of in the State and the extent
of exposure of human beings and the
environment to such waste.
(h) Pesticide enforcement allotment
(Federal Insecticide. Fungicide, and
Rodenticide Act, section 23): the State's
population, the numbers of pesticide-
producing establishments and certified
private and commercial applicators, and
the number of farms and their acreage.
(i) Pesticide applicator certification
and training allotment [Federal
Insecticide. Fungicide, and Rodenticide
Act. section 23): the number of farms
and numbers of private and commercial
applicators requiring certification or
recertification.
§35.120 Planning targets.
The Regional Administrator develops
planning targets to help each applicant
develop a work program. A planning
target is the State's reserve or is based
on the State's allotment and the
Regional Administrator's evaluation of
each applicant's ability to use altatied
funds effectively.
§35.125 Program guidance.
Program guidance helps State and
local agencies establish and maintain
effective environmental programs which
meet their particular needs and those of
the national program: National program
managers in Headquarters issue
guidance to Regional Administrators.
and Regional Administrators issue
guidance to applicants.
(a) Headquarters guidance to
Regional Administrators. Headquarters
guidance is based on the President's
annual budget submission to Congress
and the statutory and regulatory
requirements for each environmental
program. The guidance contains a
statement of national objectives and
priorities, an explanation of the
activities required of the regions, and a
list of program elements and associated
outputs recommended for State and
local'environmental programs.
(b) Regional guidance to applicants.
Regional guidance is based on
Headquarters guidance and the Regional
Administrator's knowledge of
environmental problems in each State in
his region and evaluation of each
applicant's ability to carry out the
program. The guidance contains EPA's
objectives and priorities, the applicant's
planning target, the program elements
EPA uses for budget justification and
management, categories of outputs
which should be part of the applicant's
work program, and special conditions or
limitations relevant to the applicant.
{35.130 Work program.
The work program is part of the
application for financial assistance and
is the basis for the management and
evaluation of performance under the
assistance award. The work program
must specify the work years and amount
and source of funding estimated to be
nccJod fcr 2ach program element, the
outputs committed to under each
program element, including any outputs
required under an authorization or
delegation agreement, a schedule for
accomplishment of outputs, and an
identification of the agency responsible
for each of the elements and outputs.
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44956 Federal Register / Vol. 47. No. 197 / Tuesday. October 12, 1962 / Rules and Regulations
{35.139 Budget period.
An applicant may choose its budget
period in consultation with and subject
to the approval of the Regional
Administrator.
} 35.140 Application for asstetvic*.
Each applicant should submit a
complete application at least 60 days
before the beginning of the budget
period. ID addition to meeting the
requirements contained in Part 30. a
complete application must contain a
discussion of performance to date under
the existing award, the proposed work
program, and a list of all applicable
EPA-approved State strategies, program
piano, and delegation or authorization
agreement! with a statement certifying
that the proposed work program is
consistent with then.
} 35.141 EPA action on application.
The Regional Administrator will
review each completed application and
should approve, conditionally approve.
or disapprove it within 60 days of
receipt. When funds are available, the
Regional Administrator will award
assistance based on an approved or
conditionally approved application. For
a continuation award made after the
beginning of the approved budget
period, EPA will reimburse the applicant
for allowable costs incurred from the
beginning of the budget period, provided
that such costs are contained in the
approved application and that the
application was submitted before the
expiration of the prior budget period.
(a) Approval. The Regional
Administrator will approve the
application only if it satisfies Ihe terms.
conditions, and limitations of this
snbpart. 40 CFR Part 30. and relevant
statutes and program regulations; if the
proposed outputs are consistent with
EPA guidance or otherwise
demonstrated to be necessary and
appropriate: and if achievement of the
proposed outputs is feasible, considering
the applicant's existing problems, past
performance, program authority.
organization, resources, and procedures.
(b) Conditional approval. The
Regional Administrator may
conditionally approve the application.
after consulting with the applicant, if
only minor changes arc required. The
Regional Administrator will include in
the award the conditions which the
applicant must meet to secure final
approval and the date by which those
conditions must be met.
(c) Disapproval. If the application
cannot be approved or conditionally
approved, the Regional Administrator
will negotiate with the applicant to
change the output commitments, to
reduce the assistance amount, or to
make any other changes necessary for
approval. If negotiation fails, the
Regional Administrator will disapprove
the application In writing.
935.143 Aulatanca amount
(a) Determining the assistance
amount. In determining the amount of
assistance to an applicant, the Regional
Administrator will consider the State's
planning target, the extent to which the
applicant's work program is consistent
with EPA guidance, and the anticipated
cost of the applicant's program relative
to the proposed outputs.
(b) Reduction of assistance amount. If
the Regional Administrator's evaluation
of ihe applicant's work program
indicates that the proposed outputs do
not justify the level of funding
requested, the Regional Administrator
will reduce the assistance amount. If the
evaluation indicates that the proposed
outputs are not consistent with the
priorities contained in EPA guidance.
the Regional Administrator may reduce
the assistance amount.
$35.145 Consolidated «isi»tance.
Any applicant eligible to receive and
administer funds from more than one
assistance program may submit an
application for consolidated assistance.
following the process described in
J 32.140. For consolidated assistance. ~
the applicant prepares a single budget
and work program covering all programs
included in the application. The
consolidated budget must identify each
assistance program's funds. The
consolidated work program must
identify the extent to which each
assistance program's funds support each
program element. Insular Areas which
choose to consolidate program
assistance may be exempted from
requirements of thia subpart in
accordance with Title V of Pub. L. 95-
134.
§ 35. 1 SO Evaluation of recipient
The Regional Administrator will
oversee each recipient's performance
under an assistance agreement. In
consultation with the applicant, the
Regional Administrator will develop a
process for evaluating the recipient's
performance. The Regional
Administrator will include the schedule
for evaluation in Ihe assistance
agreement and will evaluate recipient
performance and progress toward
completing the outputs in the approved
work program according to the schedule.
The Regional Administrator will provide
the evaluation findings lo the recipient
and will include them in the official
assistance file. If the evaluation reveals
that the recipient is not achieving one or
more of the conditions of the assistance
agreement, the Regional Administrator
will attempt lo resolve the situation
through negotiation. If agreement is not
reached, the Regional Administrator
may impose any of the sanctions in 40
CFR Part 30.
J3S.155 RMHocatfen.
EPA has responsibility and authority
for managing all financial assistance
funds effectively. To better achieve the
goals of the Clean Water Act 20S(g)
reserves which have not been awarded
will be returned to the State's
construction grant allotment to support
eligible construction activities: 205(j)
reserves which have not been awarded
during the period of availability to the
State will be reallotted to other States
as construction grant funds. These funds
are administered under 5 35.2010 of this
subchapter and are not available for
realloeatton under this section. For the
other, environmental programs. EPA will
consider reallocating any unawarded
funds to achieve the objectives for
which Congress appropriated them.
(a) Pbnds remaining after initial
award. Funds remaining in a Slate's
allotment after an initial assistance
award and commitment to that State for
thai year may be awarded by (he
Regional Administrator to any eligible
applicant during the Federal fiscal year.
At the end of the year, funds not
awarded by the Regional Administrator
will be reallocated by the Administrator
to accomplish the objectives of that
program.
(1) The Regional Administrator may
use such funds to make supplementary
awards to that State for thai program.
(2) Subject to any limitations
contained in appropriations acts, the
Regional Administrator may use such
funds to support a Federal program
required by law in that Slate in the
absence of an acceptable Slate program.
(3) The Regional Administrator may
also use such funds to supplement
awards for that program to other eligible
applicants within the Region.
(b) Funds available because of no
award. Funds remaining in a State's
allotment because there is no assistance
award to that State in that year may be
used in two ways.
(1) First subject to any limitations
contained in appropriations acts, the
Regional Administrator may use such
funds to support a Federal program
required by law in that State in the
absence of an acceptable State program.
(2) Otherwise, the Administrator will
reallocate any available program funds
±28
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Federal Register / Vol. 47. No. 197 / Tuesday, October 12. 1982 / Rules and Regulations 44957
lo accomplish the objectives of that
program. • ' ."'"-' :
Air Pollution Control (Section 105)
§35.200 Purpose.
Section 105 of the Clean Air Act
authorizes assistance lo State, local.
interstate, or Intel-municipal air pollution
control agencies (as defined in section
302(b) of the Act) to administer
programs for the prevention and control
of air pollution or implementation of
national air quality standards.
Associated program regulations are
found in 40 CFR Parts 50. 51, 52. 56. 60.
61. 62. and 81.
§ 35.205 Maximum Federal share.
(a) The Regional Adminjstraior may
provide State, local, interstate, or
intennuotclpal agencies up to two-thirds
of the approved costs of planning,
developing, establishing, or improving
an air pollution control program and up
to one-half of the approvaJ costs of
maintaining that program.
(b) The Regional Administrator may
provide State, interstate, or
intermuniclpal agencies which have
substantial responsibility for carrying
out an applicable implementation plan
under Section 110 of the Clean Air Act
up to three-fourths of the approved costs
of planning, developing, establishing, or
improving an air pollution control
program and up to three-fifths of the
approved costs of maintaining that
program.
§35.210 Maintenance of effort.
(a) To receive funds under section 105,
an agency must expend annually for
recurrent section 105 program
expenditures an amount of non-Federal
funds dt least equal to such
expenditures during the preceding Fiscal
year, unless the Regional Administrator.
after notice and opportunity for a public
hearing, determines that the reduction is
attributable to a non-selective reduction
of the programs of all executive branch
agencies of the applicable unit of
government.
(b) The Regional Administrator will
not award section 105 funds unless the
applicant provides assurance that the
assistance will not supplant non-Federal
funds that would otherwise be available
for maintaining the section 105 program.
§35.215 Limitation*.
(a) The Regional Administrator will
not award section 105 funds to an
interstate or intermuntcipal agency
which does not provide assurance that it
can develop a comprehensive plan for
the air quality control region which
includes representation of appropriate
Stale, interstate, local, and international State Administration (Section 205(g))
interests.
(b) The Regional Administrator will
not award section 105 funds to a local.
Interstate, or inlemnunicipal agency
without consulting with the appropriate
official designated by the Governor or
Governors of the State or States
affected.
(c) The Regional Administrator will
not disapprove an application for or
terminate or annul an award of section
105 funds without prior notice and
opportunity for a public hearing in the
affected State or in one of the affected
States if several are affected.
Water Pollution Control (Section 106)
935.250 PurpOM.
Section 106 of the Clean Water Aci
authorizes assistance to Slate and
interstate agencies (as defined in section
502 of the Act) to administer programs
for the prevention, reduction, and
elimination of water pollution. Some of
these activities may be eligible for
funding under sections 205(g) and 205(j)
of that Act.]See §35.300 and §33.350.)
Program requirements for water quality
planning and management activities are
provided in 40 CFR Part 35. Subpart G.
J 3S.2SS Maintenance of aftorL
To receive funds under section 106.
any State or interstate agency must
expend annually for recurrent section
1CW program expenditures an amount of
non-Federal funds at least equal to
expenditures during the fiscal year
ending June 30,1971.
} 3S.260 Limitation*.
(a) The Regional Administrator will
not award section 106 funds to any State
which does not monitor and compile.
analyze, and report water quality data
as described in section 106(e)(l) of the
Clean Water Act.
(b) The Regional Administrator will
not award section 106 funds to any State
which does not have authority
comparable to that in section 504 of ihe
Glean Water Act and adequate
contingency plans to implement such
authority.
(c) The Regional Administrator will
not award section 106 funds if federally
assumed enforcement as defined in
section 309(a)(2) of the Clean Water Act
is in effect with respect to the agency.
(d)The Regional Administrator will
not award section 106 funds unless the
work program submitted with the
assistance application shows that the
activities to be funded are coordinated,
as appropriate, with activities proposed
for funding under sections 205(g) and
205(j) of the Clean Water Act.
g 35.300 PurpOM.
Section 205(g) of the Clean Water Act
authorizes assistance to States (as
defined in section 502 of the Act) for two
purposes.
(a) Construction management
assistance. The 20S(g) funds may be
used for administering elements of the
construction grant program under
sections 201. 203, 204. and 212. of the
Clean Water Act arid for managing -•
waste treatment construction grants for
small communities. Construction
management assistance funds may also
be used for administering elements of a
Slate's construction grant program
which are implemented without Federal
assistance, if the Regional Administrator •
determines that those elements are
consistent with 40 CFR Part 35. Subpart
I. Program requirements for State
construction management activities
under delegation are provided in 40 CFR
Part 35. Subparts F and I.
(b) Permit and planning assistance.
The 205(g) funds may be used for
administering permit programs un'der
sections 402 and 404 and for
adminstering statewide waste treatment
management planning programs under
section 208(b|(4) of the Clean Water Act.
Some of these activities may be eligible
for funding under sections 106 and 205(j)
of that. Act. (See § 35.250 and § 35.350.)
Program requirements for water quality
management activities are provided in
40 CFR Part 35. Subpart G.
5 3SJ05 Maintenance of effort.
To receive funds under section 205(g).
a State agency most expend annually for
recurrent section 106 program
expenditures an amount of non-Federal
funds at least equal to such
expenditures during fiscal year 1977.
unless the Regional Administrator
determines that the reduction ia
attributable to a non-selective reduction
of expenditures in State executive
branch agencies.
5 35.310 Limitations.
(a) The Regional Administrator will
not award section 205(g) funds for
construction management assistance
unless there is a signed agreement
delegating responsibility for
administration of those activities to the
State.
(b) The Regional Administrator will
not award section 20S(g) permit and
planning assistance before awarding
funds which provide for the
management of a substantial portion of
construction grants program. The
maximum amount of permit and
129
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44958 Federal Register / Vol. 47. No. 197 / Tuesday, October 12, 1982 / Rules and Regulations
planning assistance a State may receive
is the amount remaining in its reserve
after the Regional Administrator allows
for full funding of the management of the
construction grant program under full
delegation.
. (c) The Regional Administrator will
not award section 205(g) permit and
planning assistance unless the work
program submitted with the assistance
application shows that the activities lu-
be funded are coordinated as
appropriate, with activities proposed for
funding under sections 106 and 205(j) of
the Clean Water Act.
Water Quality Management Planning
(Section 2050)1
} 35.350 Purpose.
Section 205(j) of the Clean Water Act
authorizes assistance to States (as
defined in section 502 of the Act) to
carry out water quality management
planning activities. Some of these
activities may be eligible for funding
under sections 106 and 205(g) of that
Act. (See § 35.250 and 5 35.300.) Program
requirements for water quality
management activities are provided in
40 CFR Part 35. Subpart G. The purpose
of 205(j) funds includes, but is not
limited to. the following.
(a) Identification of the most cost-
effective and locally acceptable facility
and nonpoint measures to meet and
maintain water quality standards.
(b) Development of an implementation
plan to obtain State and local financial
and regulatory commitments to
implement measures developed under
(a) above.
"(c) Determination of the nature.
extent, and causes of water quality
problems in various areas of the State
and interstate region.
(d) Determination of those publicly
owned treatment works which should be
constructed with Federal assistance, in
which areas and in what sequence.
taking into account the relative degree
of effluent reduction attained, the
relative contributions to water quality of
other point or nonpoint sources, and the
consideration of alternatives to such
construction.
(e) Implementation of section 303(e) of
the Clean Water Act.
5 3S.3SS (Maximum Federal share.
The Regional Administrator may
provide up to one hundred percent of the
approved work program costs.
§35.360 Limitations.
(a) The Regional Administrator will
not award section 205(j) funds to a State
agency unless the agency develops its
work program jointly with local.
regional, and interstate agencies and
gives funding priority to such agencies
and designated or undesignated public
comprehensive planning organizations
to carry out portions of that work
program.
(b) The Regional Administrator will
not award section 20S(j) funds to a Stale
agency which does not report annually
on the nature, extent, and causes of
water quality problems in various areas
of the State and interstate region.
(c) The Regional Administrator will
not award section 20S(j) funds unless
the work program submitted with the
assistance application shows that the
activities to be funded are coordinated.
as appropriate, with activities proposed
for funding under section 106 and 20S(g)
of the Clean Water Act.
Public Water System Supervision
(Section 1443(a))
§ 35.400 Purpose.
Section 1443(a) of the Safe Drinking
Water Act authorizes assistance to
Slates (as defined in section 1401 of the
Act) to implement public water system
supervision programs. Associated
program regulations are found in 40 CFR
Parts 141. 142. and 143.
§ 35.405 Maximum Federal share.
The Regional Administrator may
provide up to seventy-five percent of the
approved work program costs.
§ 35.410 Limitations.
(a) The Regional Administrator will not
make an initial award of section 1443(a)
funds unless the applicant has a public
water system supervision program or
will establish one within a year of the
award and will assume primary
enforcement responsibility for the
State's public water systems within that
year.
(b) The Regional Administrator will
not award section 1443(a) funds after
the initial award unless the applicant
has primary enforcement responsibility
for the Stale's public water systems.
Underground Water Source Protection
(Section 1443(b))
$35.450 Purpose.
Section 1443(b) of the Safe Drinking
Water Act authorizes assistance to
Slates (as defined in section 1401 of the
Act) to implement underground water
source protection programs. Associated
program regulations are found in 40 CFR
Parts 122. 123. 124, and 148.
§ 35.455 Maximum Federal share.
The Regional Adminislrator may
provide up to seventy-five percent of the
approved work program costs.
"§ 35.460 Limitations.
After September 30. 1983. the Regional
Administrator will not award section
1443(b) funds unless the applicant has
primary enforcement responsibility for
the Stale's underground water source
protection program.
Hazardous Waste Management (Section
3011)
§ 35.500 Purpose.
Section 3011(a) of the Solid Waste
Disposal Act, as amended, authorizes
assistance to Stales (as defined in
section 1004 of the Act) for the
development and implementation of
authorized State hazardous waste
management programs. Associated
program regulations are found in 40 CFR
Parts 122. Subparts A and B: 123,
Subparts A. B. and F: 124, Subparts A
and B; and 260-266.
S 35.505 Maximum Federal share.
The Regional Administrator may
provide up to seventy-five percent of the
approved work program costs.
§35.510 Limitations.
The Regional Administrator will not
award section 3011(a) funds in a Slate
with interim or final hazardous waste
authorization unless the applicant is Ihe
lead agency designated in Ihe
authorization agreement.
Pesticide Enforcement (Section 23(a)(l))
§ 35.550 Purpose.
Section 23(a)(l] of the Federal
Insecticide. Fungicide, and Rodenticide
Act authorizes assistance to States (as
defined in section 2 of the Act) and
Indian tribes to implement pesticide
enforcement programs. Associated
program regulations are found in 40 CFR
Parts 162. 165-167. 169-170. and 172-173
and 19 CFR Part 12.
130
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Federal Register / Vol. 47. No. 197 / Tuesday. October 12. 1982 / Rules and Regulations 44959
3 35.555 Maximum Federal share.
The Regional Administrator may
provide up to one hundred percent of the
approved work program costs.
Pesticide Applicator Certification and
Training (Section 23(a)(2))
§35.600 Purpose.
Section 23(a)(2) of Ihe Federal
Insecticide. Fungicide, and Rodenticide
Act authorizes assistance to Stales (as
defined in section 2 of the Act) and
Indian tribes to implement programs to
train and certify applicants of restricted
use pesticides. Associated program
regulations are found in 40 CFR Parts
162 and 170-171.'
} 35.60$ Maximum Federal snare.
The Regional Administrator may
provide up to fifty percent of the
approved work program costs.
|FR Doc ii-^mt Flltd |0-»-tt ft«S *m|
BlUMO COOC (HO-M-M
131
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REPORT DOCUMENTATION
PAGE
1* MPONT NO.
EPA 440/6-87-012
S. RocJp*inf» Accouton Me.
VS8S 228887/AS
4. TWa and SubtKIa
Guidance for Applicants for State Wellhead Protectic
Program Assistance Funds Under the Safe Drinking
ndix C; WHPP - Applicable Regulations
S. Raport Data
n June 1987
Ma«-OT-
7-**WWc Task Manager:
Director, Management & Policy Staff/OGWP
B. Performing Organization Rapt No.
700/00
t. •arformlnf Organization Nam* and Addraa
EPA Office of Ground-Water Protection
Mailstop WH-550G
401 M Street, S.W.
Washington, D.C. 20460
10. •rotact/Tatk/Work Unit No.
11. ContracttC) or CrantfQ) No.
(O
12. S*
atlon Mama and Addma
13. Typa of Itaport li ••rtad Co»«nd
Funding Guidance
14.
It. SupAramantary Notaa /
of Guidance for Applicants for State Wellhead Assistance Funds
undel thfe Safe .-Drinking Water Act (EPA 440/6-87-010). Also available is
Guidelines for Wellhead Protection Areas (EPA 440/6-87-011).
it.
Appendik C is a companion document to the Guidance for Applicants
for State Wellhead Protection Assistance Funds Under the Safe Drinking
Water Act/to explain EPA regulations applicable to the Wellhead Protection
Program-and the assistance application form needed to request a program
grant. These two documents are used to develop approvable assistance
applications and to administer properly the funds awarded under the WHP
program
17. Oommont Analyila
Ground water
Water pollution
Funding
b. Uanman/OpafrMad TMna
Grants
Applications
Water Resources
Safe Drinking Water Act
Wellhead Protection /-
c. COMTI FMd/Onwp
1&
Available through NITS and
II. SaeuiKy Cteaa (TTUt Itapart)
Unclassified
201 Socurtty Ctaaa (TMt
Unclassified.
21. No. of
22. Prtco
(Sa* ANSI-Z3>.1«
Soa InatrveHona on Mavon*
OmONAL RMM 27S (4-77)
(Format* NTIS-3S)
Doparlinant of Common*
------- |