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Technical Assistance for Public Participation (TAPP) in Defense Environmental Restoration Activities
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 2, 1998 (Volume 63, Number 21)]
[Rules and Regulations]
[Page 5255-5268]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02fe98-17]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 203
RIN 0790-AG14
Technical Assistance for Public Participation (TAPP) in Defense
Environmental Restoration Activities
AGENCY: Office of the Deputy Under Secretary of Defense for
Environmental Security (DUSD(ES)), DOD.
ACTION: Final rule.
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SUMMARY: Pursuant to the National Defense Authorization Act (NDAA) of
1996, the Department of Defense (DoD) is finalizing a rule to provide
technical assistance to local community members of Restoration Advisory
Boards (RABs) and Technical Review Committee (TRCs). RABs and TRCs are
established to review and comment on DoD environmental restoration
activities at military installations and formerly used defense sites
within the United States and its territories.
EFFECTIVE DATE: This rule is effective February 2, 1998.
FOR FURTHER INFORMATION CONTACT:
Patricia Ferrebee or Marcia Read, Office of the Deputy Under Secretary
of Defense for Environmental Security, 3400 Defense Pentagon,
Washington, D.C., 20301-3400, telephone (703) 697-5372 or (703) 697-
7475.
SUPPLEMENTARY INFORMATION: The official record for this rulemaking is
kept in a paper format. Accordingly, DoD has transferred all electronic
or digital comments received into paper form and placed them into the
official record, with all of the comments received in writing.
The Department of Defense's responses to comments have been
incorporated in a response to comments document, which has been placed
into the official record for this rulemaking. The major comments and
responses are discussed in the Response to Comments section of this
preamble.
Any person wishing to review the official record, or be provided
copies of documents in the official record, for this rulemaking should
contact Patricia Ferrebee at Office of the Deputy Under Secretary of
Defense for Environmental Security, 3400 Defense Pentagon, Washington,
D.C. 20301-3400, in writing, or by telephone at (703) 697-5372.
Preamble Outline
I. Legal Authority
II. Background
III. Summary of Significant Changes from Proposed Rule
IV. Description of the Final Rule and Responses to Major Comments
A. TAPP Process
B. Eligible Applicants
C. Eligible Activities
D. Technical Assistance for Public Participation Provider
Qualifications
E. Submission of Application
F. Appeals Process
V. Administrative Requirements/Compliance with Executive Order
A. Regulatory Impact Analysis Under Executive Order 12866
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
D. Unfunded Mandates
I. Legal Authority
This rule is issued under the authority of Section 2705 of Title
10, United States Code. Subsections (c) and (d) of Section 2705
encourage the Department of Defense to establish either a Technical
Review Committee (TRC) or Restoration Advisory Board (RAB) to review
and comment on DoD actions at military installations undertaking
environmental restoration activities. Section 2705(e) permits the
Department of Defense to obtain, from private sector sources, technical
assistance to help TRCs and RABs better understand the scientific and
engineering issues underlying an installation's environmental
restoration activities. TRCs and RABs may request this assistance only
if:
(1) The TRC or RAB demonstrates that the Federal, State, and local
agencies responsible for overseeing environmental restoration at the
installation and DoD personnel do not have the technical expertise
necessary for achieving the objective for which the technical
assistance is to be obtained; or
(2) The technical assistance--
(a) Is likely to contribute to the efficiency, effectiveness, or
timeliness of environmental restoration activities at the installation;
and
(b) Is likely to contribute to community acceptance of
environmental restoration activities at the installation.
Funding for this technical assistance program will come from the
Environmental Restoration Accounts established for Army, Navy, and Air
Force for operating installations, and from the DoD Component's base
closure account for transferring or closing installations. For Defense
Agencies the Defense-Wide environmental restoration account will be the
source of funds for assistance at operating installations. The
Environmental Restoration Account for Formerly Used Defense sites will
fund technical assistance at formerly used defense sites.
[[Page 5256]]
II. Background
Over the past several years, the Department of Defense has
participated as a member of the Federal Facilities Environmental
Restoration Dialogue Committee (FFERDC). This committee, comprised of a
wide range of stakeholders, was chartered by the Environmental
Protection Agency (EPA) to develop consensus policy recommendations for
improving environmental restoration at Federal facilities. In February
1993, the FFERDC issued the ``Interim Report of the FFERDC:
Recommendations for Improving the Federal Facilities Environmental
Restoration Decision-Making and Priority-Setting Processes.'' This
report recommended that Federal agencies become more proactive in
providing information about restoration activities to stakeholders and
that citizen advisory boards be established to provide advice to
government agencies that conduct restoration at Federal facilities.
This report also suggested the initiation of technical assistance
funding.
The Department of Defense has issued policy for establishing RABs
at its installations and formerly used defense sites. On September 9,
1993, the Department of Defense issued policy for establishing RABs at
installations designated for closure or realignment under the BRAC Acts
of 1988 and 1990 where property will be available for transfer to the
community. On April 14, 1994, the Department of Defense issued RAB
policy for non-closing installations as part of Management Guidance for
Execution of the FY94/95 and Development of the FY96 Defense
Environmental Restoration Program (DERP). The policy called for the
establishment of RABs at DoD installations where there is sufficient,
sustained community interest. Criteria for determining sufficient
interest are: (1) a government agency request that a RAB be formed; (2)
fifty local residents sign a petition requesting that a RAB be formed;
(3) an installation determines that a RAB is needed; or (4) the closure
or realignment of an installation involves the transfer of property to
the community. On September 27, 1994, the Department of Defense and EPA
issued joint RAB guidelines on how to develop and implement a RAB.
Finally, on August 6, 1996, the Department of Defense proposed
regulations governing the characteristics, composition, and
establishment of RABs pursuant to the National Defense Authorization
Act (NDAA) for 1995 (61 FR 40764-40772).
The proposed of a RAB is to bring together people who reflect the
diverse interests within the local community, enabling an early and
continual flow of information among the affected community, the
Department of Defense, and environmental oversight agencies.
Recognizing the importance of citizen participation in the
environmental restoration process, Congress authorized the provision of
technical assistance to aid public participation in Section 326 of
NDAA-95. In response to this authority, the Department of Defense
published a Notice of Request for Comments (May 24, 1995, 60 FR 27460-
27463) on alternative methods for funding technical assistance. In
1996, Congress revised this authority in Section 324 of NDAA-96. This
final rule establishes regulations for DOD Components to provide
technical assistance to RABs and TRCs, and details the specific
requirements for obtaining this assistance consistent with this new
authority. Proposed regulations regarding the characteristics,
composition, and establishment of RABs were previously published on
August 6, 1996 (61 FR 40764-40772).
The Department of Defense published a proposed rule, Technical
Assistance for Public Participation (TAPP) in Defense Environmental
Restoration Activities, on December 27, 1996 (61 FR, 68174-68197).
Public comments on this proposed rule were considered and, where
appropriate, incorporated into this final rule.
III. Summary of Significant Changes From Proposed Rule
The substance of this final rule does not differ significantly from
the proposed rule published on December 27, 1996. Principal among the
changes is the addition of an appeals process, described more fully in
Section IV of this preamble and located in Section 203.19 of the final
rule. Because of devolvement of the Defense Environmental Restoration
Account, the authority to grant waivers, in section 203.4, has been
delegated to the DoD Component Secretary, or equivalent, for the
installation in question. In addition, the Department of Defense has,
in section 203.10, clarified the types of projects that will be
eligible for TAPP funding.
IV. Description of the Final Rule and Responses to Major Comments
This rule finalizes the proposed rule ``Technical Assistance for
Public Participation (TAPP) in Defense Environmental Restoration
Activities'' (61 FR, 68174-68197). This section explains the DoD's
final action, based on the rationale presented in the proposed rule and
the DoD's review of the public comments.
To facilitate the reader's review of this final rule and to
streamline the overall structure, this section also contains the DoD's
responses to the most significant comments after each of the topics
discussed. If a particular section does not contain a response to
comment section, then either no comments were received on that topic,
or the Department of Defense has chosen to place its response in the
background document entitled ``Technical Assistance for Public
Participation Response to Comments Background Document.'' This
background document contains a complete discussion of the DoD's
responses to comments and can be found in the docket for this
rulemaking. This document provides a complete record of the public
comments followed by the DoD's responses.
A. TAPP Process
An overview of the process by which community members of RABs and
TRCs can obtain technical assistance is provided in Sections 203.4 and
203.5 of the final rule. The process begins with an evaluation by the
community members of RABs and TRCs of their technical assistance needs
and whether these needs can be met by existing avenues of support.
These other available sources of assistance can include the
installation's restoration contractors, installation or other DoD
personnel, RAB or TRC members, volunteer sources from within the
community, or state, local, or federal personnel responsible for the
oversight of restoration activities at the installation. If these
sources cannot provide the needed assistance, or if the selection of an
alternate provider will contribute to environmental restoration
activities and the community acceptance of such activities, the
community members of RABs and TRCs may submit to the installation a
request for technical assistance. This request should specify in as
much detail as possible the type of assistance requested, the timeframe
for which the assistance is required, and, if known, one or more
potential providers.
Based upon the details provided in the request, the installation
commander or other designated authority will determine whether the
project meets the eligibility requirements outlined in this final rule.
If the project is not approved, the RAB/TRC will receive a written
explanation for that decision. If the project is approved, the
installation commander will forward the application to the appropriate
contracting authority. The contracting authority will issue
[[Page 5257]]
purchase orders to obtain the desired technical assistance subject to
certain funding limitations. If multiple purchase orders are needed to
assist community members of a particular RAB or TRC, the combined sum
of these purchase orders cannot exceed $100,000 or, during any one
year, the lesser of $25,000 or 1 percent of the installation's
projected environmental restoration cost-to-complete. Note that these
limitations refer to the maximum allowable technical assistance funding
per RAB/TRC. Resources available within a given year may vary. In
addition, the funds to support RABs and TRCs and now TAPP derive from
the same budget that funds installation environmental investigations
and cleanup.
The government is required to follow the rules and regulations for
purchase orders as outlines in the Federal Acquisition Regulations
(FAR) (48 CFR Part 13). As a result, the government cannot direct
awards to a specified supplier unless the procurement is under $2,500,
and then only if the cost is comparable to other suppliers. For
procurements over $2,500 but under $100,000, the acquisition is
reserved for small businesses, unless there is a reasonable expection
that small businesses could not provide the best scientific and
technological sources consistent with the demands of the proposed
acquisition for the best mix of cost, performance, and schedules.
Furthermore, the award must be on a competitive basis. The Department
of Defense will solicit bids from those providers meeting the criteria
and will select a provider offering the best value to the government.
Should the procurement process identify a qualified respondent other
than the proposed provider(s) identified by the RAB/TRC, or fail to
identify any qualified respondents, the RAB/TRC will be consulted prior
to the award of a purchase order. If the Department of Defense
determines that the TAPP request represents an eligible project for
which no funds are available, it will ask the RAB or TRC to specify
whether the project should be reconsidered upon the availability of
additional funds.
Community members of RABs and/or TRCs must comply with the
reporting requirements established in Section 203.14 of this rule.
Response to Comments
One commenter indicated that the language in the proposed rule
seems to indicate that support is only to be provided for projects that
will assist in improving public support of DoD cleanup projects. The
commenter noted that the public may have alternate viewpoints on such
issues as: the need for cleanup, risk levels, technology to be used,
etc.
The commenter believes that support should be provided to explore
these issues as well, not just projects which validate DoD decisions.
In response, the Department of Defense intends that support be
provided to allow the RAB/TRC members to better understand and provide
input into DoD's decision process, and does not agree with the
commenter that the rule implies that support will be provided only for
projects that validate DoD's position.
Some commenters expressed concern that approval for TAPP projects
goes through the installation commander.
In response, the installation commander has ultimate authority for
the installation restoration program at his/her installation, and the
Department of Defense feels it is the responsibility of that commander
(or other service-designated authority) to make the decisions affecting
the installation's cleanup budget and its ability to meet cleanup goals
and requirements. Each installation commander or designated authority
will receive guidance to help determine approval processes for
potential TAPP projects. In the event the RAB does not agree with the
decision of the installation commander, it can appeal the decision
through the appeals process outlined in section 203.19 of this final
rule.
Several commenters questioned the funding process to be used. For
instance, one commenter inquired whether RABs would have access to a
full year's allowance (presumably meaning the full annual funding
amount of $25,000 or 1% of the installation's total projected
environmental restoration cost-to-complete), even if the first project
is less than that amount. Other commenters wanted to clarify whether
approval would be subject to available funding, or if there was instead
a ``guarantee'' of support. Finally, several commenters stated that
TAPP support should be readily available, or projects could suffer
while waiting.
When RABs/TRCs identify a need for technical assistance, the
Department of Defense will program funds for TAPP support. The sources
of TAPP funding are the Environmental Restoration Accounts established
for the DoD Components. Therefore, it competes with study, cleanup, and
even RAB funding. The installations, with input from their RAB/TRCs,
will have to determine how tradeoffs will be made between these
important activities. It is DoD's intention that once a project is
identified and approved, the procurement of a provider will occur as
quickly as possible to avoid potential impacts on installation
schedules. However, procurement of the assistance provider is subject
to availability of funds.
Each DoD Component will establish procedures for TAPP funding. They
will not automatically set aside $25,000 or 1% of the installation's
total projected environmental restoration cost-to-complete for each
RAB/TRC for TAPP each year, because some RABs/TRCs may not need TAPP
support. There are no restrictions to having more than one TAPP project
a year as long as the annual limit of $25,000 or 1% of the
installation's total projected environmental cost-to-complete is not
exceeded.
Commenters questioned whether the criteria established for
obtaining technical support can ever be met. For example, the first
criteria states that TRCs and RABs may request assistance only if they
demonstrate that the Federal, State, and local agencies responsible for
overseeing environmental restoration at the installation do not have
the technical expertise necessary for achieving the objective. The
commenter believes this argument will be difficult to make.
Additionally, the commenter wants to know what is required to show that
support isn't available through these sources? The commenter continued
in his argument that the criteria for obtaining assistance were
unlikely to be met. He stated that the criteria regarding enhancing the
timeliness of restoration activities at the installation is certainly
not helped by the involvement of a new contractor. Finally, the
commenter stated that the final criterion that the technical assistance
will contribute to community acceptance of the installation's
restoration activities, is likely not to be met by bringing in outside
opinion.
In response, the criterion cited by the commenter was imposed by
the NDAA of 1996 and are intended to conserve limited resources for
TAPP funding and to encourage the use of all available resources. The
Department of Defense anticipates that much of the technical expertise
required by RABs will be available through existing installation
environmental restoration contractors or through the regulatory and/or
installation or other DoD personnel working on the program. The
Department of Defense encourages the use of these resources to the
maximum extent possible, and notes that commenters from some RABs were
quite
[[Page 5258]]
vocal in their support for these avenues of support. Other sources of
support, such as volunteer services from local universities or other
experts or assistance from states and local health and environmental
organizations, should also be considered to preserve limited TAPP
resources. However, there may be circumstances, such as specific
knowledge of local environmental conditions or knowledge of an
alternative technology, which require expertise not available through
Federal, State, or local oversight agencies. In these instances, the
only requirement is that the RAB provide a statement in their request
for technical assistance that states why their requirements cannot be
met by those agencies. The Department of Defense also points out that
the criterion noted above is one of two criteria for obtaining
assistance, either one of which is sufficient. The full text of the
second criterion cited by the commenter refers to enhancing the
efficiency, effectiveness, or timeliness of environmental restoration
activities. To that end, the Department of Defense believes that an
informed RAB membership is better able to contribute to the restoration
program than one unfamiliar with technical details.
Finally the Department of Defense believes that community
acceptance may be enhanced through the contributions of outside sources
of expertise, particularly when that source can verify to the community
that the proposed restoration activities advocated by the Department of
Defense are appropriate. Community acceptance is greatly influenced by
community understanding. Technical assistance is intended to increase
the RAB's understanding of the DoD environmental restoration program so
that they may make meaningful contributions to the process. As RAB
input is incorporated into the restoration program, environmental
restoration becomes a cooperative effort involving all stakeholders.
Carefully defining the type of assistance needed will limit the
possibility that the introduction of a new contractor will hinder
rather than enhance community understanding.
B. Eligible Applicants
Eligible applicants for TAPP are community members of RABs or TRCs
established in accordance with 32 CFR part 202 (61 FR 40764-40772).
Furthermore, the RABs or TRCs must have at least three community
members to ensure community interests are broadly represented. The
applicant must certify that the request represents the wishes of a
simple majority of the community members of the RAB or TRC.
Certification includes, but is not limited to, the results of a roll
call vote of community members of the RAB or TRC documented in the
meeting minutes.
Response to Comments
Commenters requested clarification on the definition of community
members of RABs or TRCs, specifically whether state and local
government officials could be considered community members for purposes
of this final rule.
The Department of Defense considers state and local government
employees on the RAB or TRC to have full membership in that body.
However, for purposes of determining TAPP projects, the Department of
Defense intends that RAB/TRB community members be limited to residents
of the community affected by or potentially affected by the
installation. In situations where community residents are also members
of the Federal, state or local government, their participation in the
TAPP process would not be excluded, provided they were not expressing
opinions clearly derived from their status as government employees. As
with the proposed RAB rule, however, the Department of Defense intends
that the actual operations of individual RABs and TRCs be determined
largely by the participants, and encourages each organization to
develop its own guidelines for determining both membership at large and
the subset of community members eligible to assist in the development
of TAPP projects.
C. Eligible Activities
TAPP procurements should be pursued by the RAB or TRC only to the
extent that Federal, State, or local agencies responsible for
overseeing environmental restoration at the facility do not have the
necessary technical expertise for the proposed project, or the proposed
technical assistance will contribute to the efficiency, effectiveness,
or timeliness of environmental restoration activities at the
installation and is likely to contribute to community acceptance of
those activities.
The list of eligible activities, section 203.10, of this final rule
has been expanded to clarify eligible projects and provide examples.
The final rule now provides that eligible projects include those
projects designed to:
(1) Interpret technical documents, such as installation restoration
program site investigation, engineering, and decision documents; risk
assessments, including baseline and ecological risk assessments
conducted by the installation; and health assessments, such as those
conducted by Agency for Toxic Substances and Disease Registry (ATSDR).
(2) Assess technologies.
(3) Participate in relative risk evaluations.
(4) Understand health implications.
(5) Provide technical training, where appropriate.
Response to Comments
Several commenters wanted the list of eligible projects expanded to
include some form of community outreach and the ability to generate new
or primary data. In response, DoD believes community outreach should
not be a part of the TAPP program. Community outreach is a fundamental
part of an installation's community relations program, and should be
conducted within the context of that program. One mechanism used
successfully by many installations is the development and publication
of fact sheets or newsletters, providing important information to the
general public about the installation's restoration program. This
activity is funded by the installation's environmental restoration and
Base Realignment and Closure (BRAC) funding, which covers
administrative costs incurred by the RABs. The Department of Defense
believes that the goal of the TAPP program is to enhance participation
through increased understanding of the technical issues of the cleanup
program, and maintains that the limited funding available for that
purpose should be directed at that goal.
The generation of new data is the responsibility of the lead
agency--in this case the Department of Defense. Furthermore, the
Department of Defense works closely with the regulatory agencies to
develop investigation strategies to ensure potential hazards are
adequately characterized. This consultation and coordination is an
important part of the partnership the Department of Defense maintains
with regulatory agencies as cleanup proceeds. If the RAB identifies a
circumstance where additional data collection may be necessary, these
concerns should be communicated to the Department of Defense, where the
final decisions on the restoration program reside, or to the
appropriate regulatory agencies if the Department of Defense is not
responsive.
D. Technical Assistance for Public Participation Provider
Qualifications
The Department of Defense has determined that the technical
assistance
[[Page 5259]]
providers must possess certain minimum credentials. These include:
(1) Demonstrated knowledge of hazardous or toxic waste issues and/
or laws.
(2) Academic training in a relevant discipline (e.g., biochemistry,
toxicology, environmental sciences, engineering).
(3) Ability to translate technical information into terms
understandable by lay persons.
In addition, technical assistance providers should posses the
following credentials to ensure they will be qualified to assist the
community members of RABs and TRCs in understanding the environmental
restoration program:
(1) Experience working on hazardous or toxic waste problems.
(2) Experience in making technical presentations.
(3) Demonstrated writing skills.
(4) Previous experience working with affected individuals or
community groups or other groups of individuals.
The technical assistance provider's qualifications will vary
according to the type of assistance to be provided. Community members
of the RAB/TRC may suggest additional provider qualifications as part
of the application for technical assistance. These additional
qualifications may be used by the Department of Defense to target the
most appropriate providers during the procurement process. Examples of
such criteria could include prior work in the area, knowledge of local
environmental conditions or laws, specific technical capabilities, or
other relevant expertise.
Response to Comments
One commenter noted that non-profits and universities should be
eligible TAPP contractors.
In response, it was not the Department of Defense's intent to
exclude qualified TAPP providers from eligibility, in either the
proposed TAPP rule or this final rule. However, the use of purchase
orders to obtain support does require the Department of Defense to
follow procurement policies outlined in the FAR (48 CFR Part 13).
Purchase orders are generally reserved for small businesses unless one
of several situations apply. In circumstances where small businesses
cannot be identified that meet the criteria for procurement, a contract
can be awarded to a qualified bidder that is not a small business.
Examples of such circumstances include situations where conflict of
interest precludes otherwise acceptable small businesses from
participation, where knowledge of specific technical capabilities or of
specific proprietary technologies is required. The Department of
Defense recognizes that in many instances, RAB requirements for support
will specify criteria for the potential provider that may be met only
by non-profits or universities, and envisions no difficulties in
awarding procurements to these types of institutions. As part of the
guidance under development for this program, the Department of Defense
will provide information to assist RABs and the DoD contracting
officers in determining appropriate circumstances for contracting with
technical assistance providers that are not small businesses.
E. Submission of Application
The applicant must submit a TAPP application to begin the TAPP
procurement process. The application form is included as Appendix A of
this part and can be obtained from the DoD installation, the military
department headquarters, or directly from the Department of Defense,
Office of the Deputy Under Secretary of Defense for Environmental
Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400, telephone
(703) 697-5372 or (703) 697-7475.
The applications will not be considered complete until the
following data elements have been entered into the form:
(a) Installation.
(b) Source of TAPP request (name of RAB or TRC).
(c) Certification of majority request.
(d) RAB/TRC contact point for TAPP project.
(e) Project title.
(f) Project type (e.g., data interpretation, training, etc.).
(g) Project purpose and description (descriptions, time and
locations of products or services desired).
(h) Statement of eligibility of project.
(i) Proposed provider, if known.
(j) Specific qualifications or criteria for provider.
Response to Comments
A few commenters argued that the application process is to complex.
They noted that support might be required just to prepare the project
description and/or the application.
The principal requirement for the RABs in applying for technical
assistance is too develop a project that meets their needs in
understanding some aspect of the installation's restoration program.
Once this need has been communicated to the Department of Defense, the
government assumes the responsibilities for obtaining and monitoring
the performance of the technical assistance provider. The application
form merely formalizes the process the RABs should go through to
develop their project requirements. Additional details, such as
information about a potential technical assistance provider, are
optional and are only intended to help speed up the procurement
process.
Other commenters stated that RABs and TRCs should have access to
additional support, either through an additional purchase order or
through access to third party expertise, such as could be provided by
Technical Outreach Services to Communities (TOSC) providers, in order
to determine the requirements for their TAPP project. (TOSC is a
program of the Environmental Protection Agency's Hazardous Substance
Research Centers to provide information, technical and educational
training, workshops, and site assistance for communities and RABs
dealing with hazardous substance issues.)
In response, the Department of Defense believes the RABs, in
concert with other members of the public, if necessary, are best
positioned to determine their needs for technical support. The
Department of Defense, State, and local government members of the RAB
will be available for support in developing and preparing a TAPP
request, should the RAB community members desire their input.
Furthermore, guidance to assist communities and DoD installations with
this program is currently under development by the Department of
Defense and will be available to RAB members.
One commenter stated that preparation of the TAPP request imposes
too much burden on the RAB with no reimbursement for time and effort.
The commenter believed that this effort should be an eligible expense.
The Department of Defense reiterates that the TAPP request merely
puts in writing the desires of the community members of the RAB to
procure technical assistance. As such, the principal required
information is a description of the proposed project. The Department of
Defense has minimized the burden to community members of RABs/TRCs by
developing a short application form and performing the contract
administration.
F. Appeals Process
Although not specifically raised as an issue by commenters, the
Department of Defense recognizes that disputes can arise at several
junctures in the TAPP process. Three situations in which disagreements
could occur are:
[[Page 5260]]
(a) The RAB/TRC may dispute the findings of the installation
commander that the proposed TAPP project is ineligible, either because
of the failure of the RAB to adequately consider alternate sources of
assistance or because the project does not meet the eligibility
criteria established in the final rule.
(b) The RAB may dispute the findings of the contracting officer
that (1) the preferred provider is inadequate, (2) the preferred
provider is not cost effective, or (3) other providers identified in
the acquisition process more clearly meet the requirements of the task.
(c) After the selection of a provider, a dispute can arise because
the government contracting officer and the RAB/TRC do no agree that the
provider has met the terms of the procurement. In this situation, the
process outlined in the FAR (48 CFR Part 46) would apply.
There is a sincere desire by the Department of Defense to avoid
disputes and to foster an atmosphere of cooperation between the RAB or
TRC and the installation. Each DoD Component has a hierarchical
organizational structure with clearly defined chains-of-command. In the
event that disputes do occur, appeals will be considered within the
chain-of-command, and, in general, will be resolved at the lowest
possible level. The highest level of appeal will be at the DoD
Component Deputy Assistant Secretary level with authority over the
environmental restoration and BRAC environmental programs. In all
cases, inherently governmental functions, such as records of decision,
are not subject to appeal, and issues regarding contracting must be
governed by the FAR (48 CFR Part 37).
V. Administrative Requirements/Compliance With Executive Order
A. Regulatory Impact Analysis Under Executive Order 12866
Under Executive Order 12866 (October 4, 1993, 58 FR 51735), the
Department of Defense must determine whether this regulatory action is
``significant'' and therefore subject to review by the Office of
Management and Budget (OMB) and the requirements of the Executive
Order. Under Section 3(f), the order defines a ``significant regulation
action'' as an action that is likely to result in a rule: (1) Having an
annual effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also referred to as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement,
grants, user fees, or loan programs or the rights and obligations or
recipients thereof; or (4) raising novel legal or policy issues arising
out of legal mandates, the President's priorities or the principles set
forth in this Executive Order.
Pursuant to the terms of this Executive Order, the OMB has
determined this rule is a ``significant regulatory action'' because it
may raise novel legal or policy issues. As such, this action was
submitted to the OMB for review, and any comments or changes made in
response to the OMB suggestions or recommendations will be documented
in the public record.
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980 requires that agencies
evaluate the effects of rules for three types of small entities:
(1) Small Businesses (as defined in the Small Business
Administration regulations);
(2) Small organizations (independently owned, non-dominant in their
field, non-profit); and
(3) Small government jurisdictions (serving communities of less
than 50,000 people).
The Department of Defense has considered the interests of small
businesses and small organizations by means of the use of purchase
orders to obtain technical assistance. As stated in the FAR (48 CFR
Part 13), those purchase orders under $100,000 are reserved for small
businesses, unless it can be demonstrated that small businesses are
unable to provide the necessary service or product. Only a limited
number of small non-profit organizations are expected to be affected by
this program as it is likely that only those non-profit organizations
located near Department of Defense installations with ongoing
environmental restoration programs will, in most cases, provide the
requested technical assistance. The Department of Defense was careful
not to impose additional reporting requirements on the public and to
stay within the reporting requirements quota for procurements. In
keeping with the Simplified Acquisition Procedures (SAP), the
Department of Defense has sought to increase the dollar amount of small
purchase orders to simplify the procurement process. The Department of
Defense has deliberately written the regulations to encourage small
entities to apply. Given the limited funding available to this program
and the process outlined of Section 203.4 of this final rule, it is not
expected that this rulemaking will have a significant economic impact
on a substantial number of small entities and, therefore, no Regulatory
Flexibility Analysis is necessary.
C. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act of 1995, the reporting and
record keeping provisions of this final rule were submitted to the OMB
for review under Section 3507(d) of the Act.
The collection of information is necessary to identify products or
services requested by community members of RABs/TRCs to aid in their
participation in the Department of Defense's environmental restoration
program, and to meet Congressional reporting requirements.
Respondents are community members of restoration advisory boards or
technical review committees requesting technical assistance to
interpret scientific and engineering issues regarding the nature of
environmental hazards at an installation. This assistance will help
communities in participating in the cleanup process. The information,
directed by 10 U.S.C. 2705, will be used to determine the eligibility
of the proposed project, begin the procurement process to obtain the
requested products or services, and determine the satisfaction of
community members of RABs/TRCs receiving the products and services.
D. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of the regulatory actions on State, Tribal, and local
governments and the private sector. Under section 202 of the UMRA, the
Department of Defense generally must prepare a written statement,
including a cost-benefit analysis, for proposed and final rules with
``Federal mandates'' that may result in expenditures to State, local,
and Tribal governments, in the aggregate, or to the private sector, of
$100 million or more in any one year. When a written statement is
needed, section 205 of the UMRA generally requires the Department of
Defense to identify and consider a reasonable number of regulatory
alternatives that achieve the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows the Department of Defense to adopt an
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alternative other than the least costly, most cost-effective, or least
burdensome alternative if the Secretary publishes with the final rule
an explanation why that alternative was not adopted. Before the
Department of Defense establishes any regulatory requirements that may
significantly or uniquely affect small governments, including Tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, giving them meaningful and
timely input into the development of the Department of Defense's
regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
The Department of Defense has determined that this rule does not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and Tribal governments, in the
aggregate, or the private sector in any one year. Thus, today's rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
List of Subjects in 32 CFR Part 203
Administrative practice and procedure, Technical assistance, Public
assistance programs, Environmental protection, Federal buildings and
facilities, Organization and functions (Government agencies).
Title 32 of the Code of Federal Regulations, Chapter I, Subchapter
M, is amended to add part 203 to read as follows:
PART 203--TECHNICAL ASSISTANCE FOR PUBLIC PARTICIPATION (TAPP) IN
DEFENSE ENVIRONMENTAL RESTORATION ACTIVITIES
Sec.
203.1 Authority.
203.2 Purpose and availability of referenced material.
203.3 Definitions.
203.4 Major components of the TAPP process.
203.5 TAPP process.
203.6 Cost principles.
203.7 Eligible applicants.
203.8 Evaluation criteria.
203.9 Submission of application.
203.10 Eligible activities.
203.11 Ineligible activities.
203.12 Technical assistance for public participation provider
qualifications.
203.13 Procurement.
203.14 RAB/TRC reporting requirements.
203.15 Method of payment.
203.16 Record retention and audits.
203.17 Technical assistance provider reporting requirements.
203.18 Conflict of interest and disclosure requirements.
203.19 Appeals process.
Appendix A to Part 203--Technical Assistance for Public
Participation Application Request Form
Authority: 10 U.S.C. 2705.
Sec. 203.1 Authority.
Part 203 is issued under the authority of section 2705 of Title 10,
United States Code. In 1994, Congress authorized the Department of
Defense (DoD) to develop a program to facilitate public participation
by providing technical assistance to local community members of
Restoration Advisory Boards (RABs) and Technical Review Committees
(TRCs) (section 326 of the National Defense Authorization Act for
Fiscal Year 1995, Pub.L. 103-337). In 1996, Congress revised this
authority (section 324 of the National Defense Authorization Act for
Fiscal Year 1996, Pub.L. 104-112). It is pursuant to this revised
authority, which is codified as new subsection (3) of section 2705,
that the Department of Defense issues this part.
Sec. 203.2 Purpose and availability of referenced material.
(a) This part establishes the Technical Assistance for Public
Participation (TAPP) program for the Department of Defense. It sets
forth policies and procedures for providing technical assistance to
community members of TRCs and RABs established at DoD installations in
the United States and its territories. This part sets forth the
procedures for the Department of Defense to accept and evaluate TAPP
applications, to procure the assistance desired by community members of
RABs and TRCs, and to manage the TAPP program. These provisions are
applicable to all applicants/recipients of technical assistance as
discussed in Sec. 203.4 of this part.
(b) Any reference to documents made in this part necessary to apply
for TAPP (e.g., the Office of Management and Budget (OMB) Circulars or
DoD forms) are available through the DoD installations, the military
department headquarters, or from the Department of Defense, Office of
the Deputy Under Secretary of Defense for Environmental Security
(DUSD(ES)), 3400 Defense Pentagon, Washington, DC 20301-3400.
Sec. 203.3 Definitions.
As used in this part, the following terms shall have the meaning
set forth:
Affected. Subject to an actual or potential health or environmental
threat arising from a release or a threatened release at an
installation where the Secretary of Defense is planning or implementing
environmental restoration activities including a response action under
the Comprehensive Environmental Response Compensation and Liability Act
as amended (CERCLA), corrective action under the Resource Conservation
and Recovery Act (RCRA), or other such actions under applicable Federal
or State environmental restoration laws. This would include actions at
active, closing, realigning, and formerly used defense installations.
Examples of affected parties include individuals living in areas
adjacent to installations whose health is or may be endangered by the
release of hazardous substances at the facility.
Applicant. Any group of individuals that files an application for
TAPP, limited by this part to community members of the RAB or TRC.
Application. A completed formal written request for TAPP that is
submitted to the installation commander or to the identified decision
authority designated for the installation. A completed application will
include a TAPP project description.
Assistance provider. An individual, group of individuals, or
company contracted by the Department of Defense to provide technical
assistance under the Technical Assistance for Public Participation
program announced in this part.
Assistance provider's project manager. The person legally
authorized to obligate the organization executing a TAPP purchase order
to the terms and conditions of the DoD's regulations and the contract,
and designated by the provider to serve as the principal contact with
the Department of Defense.
Community Co-chair. The individual selected by the community
members of the RAB/TRC to represent them.
Community member. A member of the RAB or TRC who is also a member
of the affected community. For the purpose of this part, community
members do not include local, State, or Federal government officials
acting in any official capacity.
Community point of contact. The community member of the RAB or TRC
designated in the TAPP application as the focal point for
communications with the Department of Defense regarding the TAPP
procurement process. The community point of contact is responsible for
completing the reporting requirements specified in Sec. 203.14 of this
part.
Contact. A written agreement between the installation or other
instrumentality of the Department of Defense and another party for
services or supplies necessary to complete the TAPP project.
[[Page 5262]]
Contracts include written agreements and subagreements for professional
services or supplies necessary to complete the TAPP projects,
agreements with consultants, and purchase orders.
Contracting officer. The Federal official designated to manage the
contract used to fulfill the TAPP request by the RAB or TRC.
Contractor. Any party (e.g., Technical Assistance Provider) to whom
the installation or other instrumentality of the Department of Defense
awards a contract. In the context of this part, it is synonymous with
assistance provider.
Cost estimate. An estimate of the total funding required for the
assistance provider to complete the TAPP project.
DoD Component. The military services including the Army, Navy,
Marine Corps, and Air Force and those defense agencies with an
environmental restoration program.
DoD Component Deputy Assistant Secretary. The individual in the
office of the Secretary of the Army, Navy, Air Force responsible for
making environmental decisions for their component or the director of
the Defense Agencies.
DoD Installation. A facility that is controlled or operated or
otherwise possessed by a department, or agency of the United States
Department of Defense within the United States and its territories. In
the context of this part, formerly used defense sites (FUDS) are
included within the definition of a DoD Installation.
DoD RAB Co-chair. The individual selected by the installation
commander, or equivalent, to serve as the installation co-chair of the
RAB, represent DoD's interests, serve as liaison with community RAB
members, and advocate RAB concerns within the installation staff.
EPA. The United States Environmental Protection Agency.
Firm fixed price contract. A contract wherein funding is fixed,
prior to the initiation of a contract, for an agreed upon service or
product.
Formerly Used Defense Site (FUDS). A site that has been owned by,
leased to, possessed by, or otherwise under the jurisdiction of the
Department of Defense. The FUDS program does not apply to those sites
outside U.S. jurisdiction.
Purchase order. An offer by the Government to buy supplies or
services from a commercial source, upon specified terms and conditions,
the total cost of which cannot exceed the small purchase limit of
$100,000. Purchase orders are governed by Federal Acquisition
Regulations (FAR) (48 CFR part 13), and the Simplified Acquisition
Procedures (SAP).
Restoration Advisory Board (RAB). The RAB is a forum for
representatives of the Department of Defense, local community, and EPA
and/or State, local, and tribal officials to discuss and exchange
information about the installation's environmental restoration program.
The RAB provides stakeholders an opportunity make their views known,
review progress and participate in dialogue with the decision makers.
Statement of Work. That portion of a contract which describes the
actual work to be done by means of specifications or minimum
requirements, quantities, performance dates, time and place of
performance, and quality requirements. It is key to any procurement
because it is the basis for the contractor's response and development
of proposed costs.
TAPP approval. Signifies that the Department of Defense has
approved the eligibility of the proposed TAPP project and will, subject
to the availability of funds, undertake an acquisition to obtain the
services specified in the TAPP application submitted by the RAB or TRC.
The government will conduct the acquisition in accordance with all of
the applicable rules and requirements of the FAR and the SAP. Approval
does not constitute an agreement to direct an award to a specific
source if such an action would be contrary to the FAR.
TAPP project description. A discussion of the assistance requested
that includes the elements listed in Section 203.10 of this part. The
project description should contain sufficient detail to enable the
Department of Defense to determine the nature and eligibility of the
project, identify potential providers and estimate costs, and prepare a
statement of work to begin the procurement process.
Technical assistance. Those activities specified in Sec. 203.10 of
this part that will contribute to the public's ability to provide input
to the decision-making process by improving the public's understanding
of overall conditions and activities. Technical assistance may include
interpreting technical documents; assessing technologies; participating
in relative risk evaluations, understanding health implications; and,
training.
Technical assistance does not include those activities prohibited
under Section 203.11 of this part, such as litigation or underwriting
legal actions; political activity; generation of new primary data such
as well drilling and testing, including split sampling; reopening final
DoD decisions or conducting disputes with the Department of Defense; or
epidemiological or health studies, such as blood or urine testing.
Technical Review Committee (TRC). A group comprised of the
Department of Defense, EPA, State, and local authorities and a public
representative of the community formed to meet the requirements of 10
U.S.C. 2705(c), the Department of Defense Environmental Restoration
Program. Primarily functioning to review installation restoration
documents, these committees are being expanded and modified at
installations where interest or need necessitates the creation of a
RAB.
Sec. 203.4 Major components of the TAPP process.
(a) The Department of Defense will issue purchase orders to
technical assistance, facilitation, training, and other public
participation assistance providers subject to the purchase limit per
order as resources continue to be available. If multiple purchase
orders are needed to assist community members of a particular RAB or
TRC, the combined sum of these purchase orders cannot exceed $100,000
or, during any one year, the lesser of $25,000 or 1 percent of the
installation's total projected environmental restoration cost-to-
complete. Note that these limitations refer to the maximum allowable
technical assistance funding per RAB/TRC. Resources available within a
given year may vary. These limitations apply unless a waiver is granted
by the DoD Component Secretary or equivalent for the installation in
question. The $100,000 total and $25,000 annual limitations may be
waived, as appropriate, to reflect the complexity of response action,
the nature and extent of contamination at the installation, the level
of activity at the installation, projected total needs as identified by
the TAPP recipient, the size and diversity of the affected population,
and the ability of the TAPP recipient to identify and raise funds from
other sources.
(b) Community members of the RAB/TRC will provide a description of
the services requested (TAPP Project Description) and, if desired, the
names of one or more proposed technical assistance providers to the DoD
RAB Co-Chair, who will ensure the application is submitted to the
installation commander or other designated authority and to the
appropriate DoD contracting office. Technical assistance providers
proposed by the community members of a RAB or TRC at each DoD
installation that meets the minimum set
[[Page 5263]]
of organizational qualifications guidelines provided by the Department
of Defense in Sec. 203.12 of this part will be added to the governments
list of bidders for the proposed procurement.
Sec. 203.5 TAPP process.
This section provides an overview of the TAPP process. Specific
details referred to in this section can be found in subsequent sections
of this part.
(a) TAPP funding. Funding for this TAPP program will come from the
Environmental Restoration Accounts established for Army, Navy, and Air
Force for operational installations. The funding for Defense Agencies'
operating installations will be from the Defense-Wide Environmental
Restoration Account. Funding will be from the component's base closure
account for transferring or closing installations. Funding for Formerly
Used Defense Sites will come from the Environmental Restoration Account
established for Formerly Used Defense Sites. After justification of the
TAPP proposal, each DoD Component will make funds available from their
individual installation's environmental restoration or BRAC accounts,
considering a number of factors related to the restoration program at
the installation and its impact upon the community. These factors
include, but are not limited to:
(1) Closure status.
(2) Budget.
(3) Installation restoration program status.
(4) Presence (or absence) of alternate funding.
(5) Relative risk posed by sites at the installation.
(6) Type of task to be funded.
(7) Community concern.
(8) Available funding.
(b) Identification of proposed TAPP project. Eligible applicants of
RABs and TRCs, established in Sec. 203.7 of this part, should determine
whether a TAPP project is required to assist the community members of
the RAB or TRC to interpret information regarding the nature and extent
of contamination or the proposed remedial actions. Eligibility
requirements for TAPP projects are described in Secs. 203.10 and 203.11
of this part. In keeping with the requirements of 10 U.S.C. 2705(e),
the RAB or TRC must be able to demonstrate that the technical expertise
necessary for the proposed TAPP project is not available through the
Federal, State, or local agencies responsible for overseeing
environmental restoration at the installation, or that the selection of
an independent provider will contribute to environmental restoration
activities and the community acceptance of such activities. In
addition, the Department of Defense encourages the RAB or TRC to seek
other available sources of assistance prior to submitting a request for
TAPP in order to preserve limited resources. These sources include
DoD's installation restoration contractor, or other DoD contractors or
personnel, EPA or state regulatory personnel, volunteer services from
local universities or other experts, or assistance from state and local
health and environmental organizations.
(c) TAPP project request. The RAB or TRC should notify the
installation of its intent to pursue TAPP upon the determination that
other sources of assistance are unavailable or unlikely to contribute
to the community acceptance of environmental restoration activities at
the installation and should prepare a formal request specifying the
type of assistance required and, if desired, one or more sources for
this assistance. Details concerning this request are stated in
Sec. 203.9 of this part. The RAB or TRC must certify to the Department
of Defense that the TAPP request represents a request by a majority of
the community members of the RAB or TRC. The RAB or TRC should ensure
that the request meets the eligibility requirements specified in
Secs. 203.10 and 203.11 of this part. Furthermore, the RAB or TRC may
outline additional criteria for the Department of Defense to consider
in the selection of a provider (such as knowledge of local
environmental conditions or specific technical issues, a prior work
history within the study area which has relevant specific circumstances
or unique challenges, or other relevant expertise or capabilities),
keeping in mind that providers must meet the minimum technical
qualifications outlined in Sec. 203.12 of this part. The formal request
should be submitted to the installation commander or designated
decision authority, either directly, or through the DoD RAB Co-chair.
The installation commander, or other designated decision authority,
will review the proposed project to determine whether the proposed
project conforms to the eligibility requirements. If the installation
commander, or other designated authority, fails to approve the project
request, the rationale for that decision will be provided to the RAB/
TRC in writing.
(d) Purchase orders. Upon receipt of a completed TAPP request, the
installation will begin the procurement process necessary to obtain the
desired services by means of a purchase order or will forward the
request to the contracting authority designated by the DoD Component to
act for that installation. The government is required to follow the
rules and regulations for purchase orders as outlined in the FAR (48
CFR part 13). As a result, the government cannot direct awards to a
specified supplier unless the procurement is under $2,500, and then
only if the cost is comparable to other suppliers. For procurements
over $2,500 but under $100,000, the acquisition is reserved for small
businesses, unless there is a reasonable expectation that small
businesses could not provide the best scientific and technological
sources consistent with the demands of the proposed acquisition for the
best mix of cost, performance, and schedules. Furthermore, the award
must be on a competitive basis. In addition to proposing potential
providers, the application for technical assistance may indicate
specific criteria or qualifications that are deemed necessary by the
RAB/TRC for the completion of the project to their satisfaction. This
information will be used to assist the Department of Defense in
preparing a bidders list. The Department of Defense will solicit bids
from those providers meeting the criteria and will select a provider
offering the best value to the government. Should the procurement
process identify a qualified respondent other than the proposed
provider(s) identified by the RAB/TRC or fail to identify any qualified
respondents, the RAB/TRC will be consulted prior to the award of a
purchase order. If the Department of Defense determines that the TAPP
request represents an eligible project for which no funds are
available, it will ask the RAB or TRC to specify whether the project
should be reconsidered upon the availability of additional funds.
(e) Reporting requirements. The applicant must assure that copies
of delivered reports are made available to the Department of Defense
and must comply with the reporting requirements established in
Sec. 203.14 of this part.
Sec. 203.6 Cost principles.
(a) Non-profit contractors must comply with the cost principles in
OMB Circular A-122. Copies of the circular may be obtained from EOP
Publications, 725 17th NW, NEOB, Washington, DC 20503.
(b) For-profit contractors and subcontractors must comply with the
cost principles in the FAR (48 CFR part 31).
Sec. 203.7 Eligible applicants.
Eligible applicants are community members of RABs or TRCs.
Furthermore, the RABs or TRCs must be
[[Page 5264]]
comprised of at least three community members to ensure community
interests are broadly represented. The applicant must certify that the
request represents the wishes of a simple majority of the community
members of the RAB or TRC. Certification includes, but is not limited
to, the results of a roll call vote of community members of the RAB or
TRC documented in the meeting minutes. Other requirements of the
application are detailed in Sec. 203.9 of this part.
Sec. 203.8 Evaluation criteria.
The Department of Defense will begin the TAPP procurement process
only after it has determined that all eligibility and responsibility
requirements listed in Secs. 203.6, 203.7, and 203.9 of this part are
met, and after review of the specific provider qualifications as
submitted in the narrative section of the application. In addition, the
proposed TAPP project must meet the eligibility criteria as specified
in Secs. 203.10 and 203.11 of this part. Projects that fail to meet
those requirements relating to the relevance of the proposed project to
the restoration activities at the installation will not be approved.
Sec. 203.9 Submission of application.
The applicant must submit a TAPP application to begin the TAPP
procurement process. The application form is included as appendix A of
this part and can be obtained from the DoD installation, the DoD
Component headquarters, or directly from the Department of Defense,
Office of the Deputy Under Secretary of Defense for Environmental
Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400. The
applications will not be considered complete until the following data
elements have been entered into the form:
(a) Installation.
(b) Source of TAPP request (names of RAB or TRC).
(c) Certification of majority request.
(d) RAB/TRC contact point for TAPP project.
(e) Project title.
(f) Project type (e.g. data interpretation, training, etc.).
(g) Project purpose and description (descriptions, time and
locations of products or services desired).
(h) Statement of eligibility of project.
(i) Proposed provider, if known.
(j) Specific qualifications or criteria for provider.
Sec. 203.10 Eligible activities.
(a) TAPP procurements should be pursued by the RAB or TRC only to
the extent that Federal, State, or local agencies responsible for
overseeing environmental restoration at the facility do not have the
necessary technical expertise for the proposed project, or the proposed
technical assistance will contribute to the efficiency, effectiveness,
or timeliness of environmental restoration activities at the
installation and is likely to contribute to community acceptance of
those activities.
(b) TAPP procurements may be used to fund activities that will
contribute to the public's ability to provide advice to decision-makers
by improving the public's understanding of overall conditions and
activities. Categories of eligible activities include the following:
(1) Interpret technical documents. The installation restoration
program documents each stage of investigation and decision-making with
technical reports that summarize data and support cleanup decisions.
Technical assistance may be provided to review plans and interpret
technical reports for community members of RABs and TRCs. These reports
include, but are not limited to:
(i) Installation restoration program site studies, engineering
documents, such as site inspections, remedial investigations,
feasibility studies, engineering evaluation and cost analyses, and
decision documents (including records of decision);
(ii) Risk assessments, including baseline and ecological risk
assessments conducted by the installation; and
(iii) Health assessments, such as those conducted by the Agency for
Toxic Substances and Disease Registry (ATSDR).
(2) Assess technologies. Technical assistance may be provided to
help RAB/TRC community members understand the function and implications
of those technologies selected to investigate or clean up sites at the
installation.
(3) Participate in relative risk site evaluations. Technical
assistance may be provided to help RAB/TRC community members contribute
to the relative risk evaluation process for specific sites.
(4) Understand health implications. Technical assistance may be
provided to help RAB/TRC community members interpret the potential
health implications of cleanup levels or remedial technologies, or to
explain the health implications of site contaminants and exposure
scenarios.
(5) Training, where appropriate. Technical trainers on specific
restoration issues may be appropriate in circumstances where RAB/TRC
members need supplemental information on installation restoration
projects.
Sec. 203.11 Ineligible activities.
The following activities are ineligible for assistance under the
TAPP program:
(a) Litigation or underwriting legal actions, such as paying for
attorney fees or paying for a technical assistance provider to assist
an attorney in preparing legal action or preparing for and serving as
an expert witness at any legal proceeding regarding or affecting the
site.
(b) Political activity and lobbying as defined by OMB Circular A-
122.
(c) Other activities inconsistent with the cost principles stated
in OMB Circular A-122, ``Cost Principles for Non-Profit
Organizations.''
(d) Generation of new primary data, such as well drilling and
testing, including split sampling.
(e) Reopening final DoD decisions, such as the Records of Decision
(see limitations on judicial review of remedial actions under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) Section 113(h)) or conducting disputes with the Department of
Defense).
(f) Epidemiological or health studies, such as blood or urine
testing.
(g) Community outreach efforts, such as renting a facility and
conducting public meetings, or producing and distributing newsletters.
Sec. 203.12 Technical assistance for public participation provider
qualifications.
(a) A technical assistance provider must possess the following
credentials:
(1) Demonstrated knowledge of hazardous or toxic waste issues and/
or laws.
(2) Academic training in a relevant discipline (e.g., biochemistry,
toxicology, environmental sciences, engineering).
(3) Ability to translate technical information into terms
understandable to lay persons.
(b) A technical assistance provider should possess the following
credentials:
(1) Experience working on hazardous or toxic waste problems.
(2) Experience in making technical presentations.
(3) Demonstrated writing skills.
(4) Previous experience working with affected individuals or
community groups or other groups of individuals.
(c) The technical assistance provider's qualifications will vary
according to the type of assistance to be provided. Community members
of the RAB/TRC may suggest additional provider
[[Page 5265]]
qualifications as part of the application for technical assistance.
These additional qualifications may be used by the Department of
Defense to target the most appropriate providers during the procurement
process. Examples of such criteria could include prior work in the
area, knowledge of local environmental conditions or laws, specific
technical capabilities, or other relevant expertise.
Sec. 203.13 Procurement.
Procurements will be conducted as purchase orders in accordance
with the FAR (48 CFR part 13). Under these procedures, procurements not
exceeding $100,000 are reserved exclusively for small businesses, and
will be conducted as competitive procurements. Procurements below a
value of $2,500 are considered ``micro-purchases.'' These procurements
do not require the solicitation of bids and may be conducted at the
discretion of the contracting officer.
Sec. 203.14 RAB/TRC reporting requirements.
The community point of contact of the RAB or TRC must submit a
report, to be provided to the installation and to DUSD(ES), to enable
the Department of Defense to meet DoD reporting requirements to
Congress. This report should include a description of the TAPP project,
a summary of services and products obtained, and a statement regarding
the overall satisfaction of the community member of the RAB or TRC with
the quality of service and/or products received.
Sec. 203.15 Method of payment.
The SAP set forth in FAR (48 CFR part 13) require purchase orders
to be conducted on a firm-fixed-price basis, unless otherwise
authorized by agency procedures. The Department of Defense anticipates
all TAPP awards to be firm-fixed-price procurements.
Sec. 203.16 Record retention and audits.
The recipient technical assistance providers shall keep and
preserve detailed records in connection with the contract reflecting
acquisitions, work progress, reports, expenditures and commitments, and
indicate the relationship to established costs and schedules.
Sec. 203.17 Technical assistance provider reporting requirements.
Each technical assistance provider shall submit progress reports,
financial status reports, materials prepared for the RAB/TRC, and a
final report to the DoD installation for the TAPP project as specified
by the specific purchase order agreement. The final report shall
document TAPP project activities over the entire period of support and
shall describe the achievements with respect to stated TAPP project
purposes and objectives.
Sec. 203.18 Conflict of interest and disclosure requirements.
The Department of Defense shall require each prospective assistance
provider on any contract to provide, with its bid or proposal:
(a) Information on its financial and business relationship with the
installation, RAB/TRC members, or any/all potentially responsible
parties (PRPs) at the site, and with their parent companies,
subsidiaries, affiliates, subcontractors, contractors, and current
clients or attorneys and agents. This disclosure requirement
encompasses past and anticipated financial and business relationships,
including services related to any proposed or pending litigation, with
such parties.
(b) Certification that, to the best of its knowledge and belief, it
has disclosed such information or no such information exists.
(c) A statement that it shall disclose immediately any such
information discovered after submission of its bid or after award. The
contracting officer shall evaluate such information and shall exclude
any prospective contractor if the contracting officer determines the
prospective contractor has a potential conflict of interest that is
both significant and cannot be avoided or otherwise resolved. If, after
award, the contracting officer determines that a conflict of interest
exists that is both significant and cannot be avoided or resolved, the
contract will be terminated for cause.
(d) Contractors and subcontractors may not be technical assistance
providers to community members of RABs/TRCs at an installation where
they are performing cleanup activities for the Federal or State
government or any other entity.
Sec. 203.19 Appeals process.
DoD Components will establish an appeals process to settle
potential disputes between the Department of Defense and the public
regarding certain decisions arising out of the TAPP process. The
Department of Defense recognizes that the RAB/TRC may disagree with the
findings of the installation commander that a proposed TAPP project is
ineligible, either because of the availability of alternate sources of
assistance or because the project does not meet the eligibility
criteria established in this part. It is in the best interests of the
Department of Defense and the community members of RABs and TRCs to
anticipate and avoid disputes and to work cooperatively to resolve
potential differences of opinion. However, in certain circumstances,
the RAB/TRC community members may feel that their needs were not
adequately served by the decisions of the Department of Defense. In
this instance, the hierarchical structure and chain-of-command within
each DoD Component will serve as the avenue for appeal. Appeals will be
considered within the chain-of-command, and, in general, will be
resolved at the lowest level possible. The highest level of appeal will
be at the DoD Component Deputy Assistant Secretary level with authority
over the DERP and BRAC environmental programs. Inherently governmental
functions, such as the procurement process governed by the FAR, are not
subject to appeal.
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Dated: January 27, 1998.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-2394 Filed 1-30-98; 8:45 am]
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