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 -

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                                                                                                           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.

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                                                                                                        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.

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                                                            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
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                                                                                            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

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                                                                                                             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)
$



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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
$

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$









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NON-FEDERAL TOTAL
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-------
                                                                                       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
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.EPA Form 57f>n-33 (Rav. 11-86) Previous editions are obsolete.
                                                                                               P'CE 3 OF 12
                                  10

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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
$



$

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                                                                                              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

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  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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            Federal  Register / Vol.  49.  No. 8  /  Thursday, January 12. 1984 / Rules and-Regulations
                                                                          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 
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                     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 -

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  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

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 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 
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                                            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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 10288
      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-
                             FEDERAL REGISTER, VOL 44, NO. 34—FRIDAY, FEBRUARY  16, 1979
                                               33  :;..,

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10290
                                            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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 10292
     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
                                            36

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                                            RULES AND REGULATIONS
                                                                     10293
  (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
                                                     37-

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10294
     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
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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

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                   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 
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              40 CFR PART 30 -
GENERAL REGULATION FOR ASSISTANCE PROGRAMS
                   - vi -
58

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     Friday
     September 30, 1983
      Part VIII

      Environmental
      Protection  Agency
      General Regulation for Assistance
      Programs
59

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 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
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           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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-45070     Federal' Register / Vol.  48.  No. 191 / .Friday!  September 30. 1983  /  Rules and Regulations
 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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 45072
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

-------
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

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            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)	-	-	
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     I M xas		.'.	
   10) EPA Form 377O-J
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   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
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             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
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             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.-
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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

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 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

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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

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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

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 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-  -

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                   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

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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

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       Monday
       March 28, 1983
•	3

     3. !l
       Part II

       Environmental
       Protection Agency
       Procurement Under Assistance
       Agreements
98

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 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.
                                                   103

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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
i3Sjj
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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
                                                             106

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 129.10
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:
                                                  1C?

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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

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             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.

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 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
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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
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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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           Federal Register  /  Vol. 47.  No. 197  /  Tuesday. October 12. 7982  /  Rules and Regulations     44951
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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           Federal  Register / Vol. 47. No.  197 / Tuesday.  October 12,  1982 /  Rules and Regulations     44953
 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.
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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*

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