[Federal Register Volume 70, Number 16 (Wednesday, January 26, 2005)]
[Rules and Regulations]
[Pages 3629-3632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1371]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 30 and 31
[FRL-7863-3]
Notice of Availability of Class Deviation; Assistance Agreement
Competition-Related Disputes Resolution Procedures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability.
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SUMMARY: This document provides notice of the availability of a Class
Deviation from EPA's assistance agreement dispute procedures and also
sets forth the procedures that will apply to the resolution of
competition-related disputes and disagreements that may arise in
connection with the competition of EPA assistance agreements.
Currently, assistance agreement competition-related disputes and
disagreements are resolved in accordance with EPA assistance agreement
dispute procedures that apply to financial assistance to institutions
of higher education, hospitals, non-profit organizations, States,
tribes, local governments and other eligible entities. EPA has
determined, however, through a Class Deviation, that these procedures
are not practicable to use for competition-related disputes and
disagreements and that it is appropriate to replace those procedures
with the procedures contained in this document. These new dispute
resolution procedures will apply to competitive awards that are subject
to applicable EPA assistance agreement procedures unless there are
program specific statutory or regulatory dispute procedures that apply
to such awards. The Class Deviation and this action only affect the
dispute resolution procedures for assistance agreement competition-
related disputes and disagreements.
DATES: These procedures are effective upon January 26, 2005.
FOR FURTHER INFORMATION CONTACT: Bruce Binder, Associate Director for
Grants Competition, Office of Grants and Debarment, 1200 Pennsylvania
Avenue, NW., Mail Code 3901R, Washington, DC 20460. The telephone
number is (202) 564-4935; facsimile number (202) 565-2469; and e-mail
address is [email protected]. Copies of the Class Deviation are
available by contacting Bruce Binder as indicated above.
SUPPLEMENTARY INFORMATION: This action sets forth the dispute
resolution procedures based on the Class Deviation that are to be used
in lieu of the dispute procedures contained in 40 CFR 30.63 and 40 CFR
part 31, subpart F, 40 CFR 31.70 for the resolution of EPA assistance
agreement competition-related disputes and disagreements. These
procedures will ensure that applicants are provided with a meaningful
and effective dispute resolution process for assistance agreement
competition-related disputes and disagreements. The procedures provide
that unsuccessful applicants will receive timely notification that EPA
determined that their application or proposal was either ineligible for
an award or was not selected for an award. Applicants may then, upon
request, obtain a timely debriefing on the basis for the Agency's
decision. Debriefings may be oral or written but are mandatory if the
applicant intends to file a dispute in order to minimize
misunderstandings between the Agency and the applicant and provide an
opportunity to expeditiously resolve differences without the need to
file a formal dispute. The applicant may file a formal dispute within
15 calendar days after the debriefing.
In addition to establishing a nationally consistent assistance
agreement competition disputes process, the procedures in this document
clarify roles and responsibilities and specify the circumstances in
which applicants may dispute EPA decisions. Agency Officials must
appoint a Grants Competition Disputes Decision Official (GCDDO) to
resolve the dispute; the GCDDO cannot be involved in the decision that
is the subject of the dispute. The GCDDO determines whether the issues
raised in the dispute warrant delaying the competitive process until
the dispute is resolved. These procedures also generally limit disputes
to eligibility-type determinations made by EPA and generally do not
allow an applicant to challenge a scoring or ranking determination,
unless there is a compelling reason or an issue of national
significance which would warrant EPA review of the dispute. The
procedures also establish that the GCDDO's decision will constitute
final agency action for the purposes of judicial review with no right
to any further EPA review.
In addition, EPA headquarters and regional program offices may,
with the approval of the EPA Grants Competition Advocate, adopt dispute
resolution procedures that are ``substantially the same'' as the
procedures contained in this document. Each EPA announcement for a
competitive assistance agreement will either include or reference the
applicable disputes procedure for that particular competition (if
referenced, the announcement will indicate how applicants can obtain a
copy of the dispute procedures).
Regulated Entities: The assistance agreement competition-related
disputes procedures covered by this action apply to all entities which
compete for competitive assistance agreement awards that are subject to
the applicable EPA assistance agreement procedures found at 40 CFR
parts 30, 31, and 35 unless the part 35 regulations contain specific
dispute procedures that apply to such awards.
Background: The regulatory disputes resolution coverage currently
found at 40 CFR 31.70 was initially codified in the CFR on September
30, 1983 at 40 CFR 30.303(b) and 40 CFR part 30, subpart L (1983). 48
FR 4506 (September 30, 1983). At that time, EPA changed the assistance
agreement disputes process from an adversarial, trial type process
before the EPA Board of Assistance Appeals, to a more informal system
administered by Agency program managers. The preamble to the final rule
described the 1983 changes to the disputes process as follows:
The new process will:
1. Encourage cooperation between the Agency's officials and those
applying for and receiving assistance.
2. Develop a good administrative record to support the Agency's
final decisions.
3. Provide applicants and recipients high-level review of Agency
decisions and a forum for resolving disputes informally, expeditiously,
and inexpensively.
4. Provide applicants and recipients a written decision explaining
the basis for the position.
[[Page 3630]]
Fair and consistent dispute resolution remains a central principle
of administering EPA's assistance programs. The procedures in subpart L
continue to give recipients and applicants the right to request a high
level review of decisions concerning issues arising under the EPA
assistance programs. 48 FR at 45060.
These same disputes provisions and processes were included in EPA
regulations found at 40 CFR parts 30 and 31 implementing the ``common
rules'' for OMB Circular A-102 in 1988 and OMB Circular A-110 in 1996.
53 FR 8034, 8076 (March 11, 1988); 61 FR 6066, 6081 (February 15,
1996). The dispute provisions were moved from 40 CFR part 30, subpart L
to 40 CFR part 31, subpart F, 40 CFR 31.70, when EPA implemented OMB
Circular A-102 through 40 CFR part 31. The Agency's rule implementing
OMB Circular A-110 incorporates the 40 CFR 31.70 disputes procedures at
40 CFR 30.63. However, neither OMB Circular A-102 nor A-110 contains
government-wide assistance agreement dispute provisions.
Based on the language in the preamble discussed above referencing
the applicability of the disputes process to applicants, EPA concluded
that the assistance agreement disputes process would apply if an
applicant for a competitively awarded agreement chose to dispute a
decision that it was either ineligible to compete for the agreement or
that its application was not selected for funding based on the merits
of the proposal. Consequently, EPA's September 2002 Policy for
Competition in Assistance Agreements provided that the Agency would
follow the 40 CFR 31.70 process for disputes and disagreements related
to EPA assistance agreement competitions.
Notwithstanding the statements in the 1983 preamble regarding
assistance agreement applicants, the 40 CFR 31.70 disputes provisions
are geared to effectively resolve cost allowability or assistance
agreement administration disputes rather than competition-related
disputes and disagreements that may arise in connection with the award
of assistance agreements. This disputes process does not specify any
time frame for an applicant to dispute a decision or for EPA to issue a
final decision. It does not provide Agency selection and award
officials with nationally consistent policies and procedures for the
resolution of assistance agreement competition-related disputes or for
determining whether the application/proposal evaluation and award
process needs to be delayed when an applicant files a dispute. The
process is time consuming, particularly since it includes two
administrative appeal levels, and resource intensive for both EPA and
aggrieved applicants and is not suitable for the resolution of
competition-related disputes and disagreements.
In order to address these issues for assistance agreement
competition-related disputes and disagreements, this action sets forth
dispute resolution procedures that will provide applicants with a
meaningful dispute resolution process that is better suited for
competition-related disputes and disagreements than the 40 CFR part 30
and 40 CFR part 31, subpart F dispute procedures. Accordingly, pursuant
to 40 CFR 31.6(d), the Director of the EPA Grants Administration
Division has issued a Class Deviation approving the use of these
procedures.
Statutory and Executive Order Reviews: Under Executive Order 12866
(58 FR 51735, October 4, 1993), this action is not a ``significant
regulatory action'' and is therefore not subject to OMB review. Because
this grant action is not subject to notice and comment requirements
under the Administrative Procedures Act or any other statute, it is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or
sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA)
(Public Law 104-4). In addition, this action does not significantly or
uniquely affect small governments. This action does not have tribal
implications, as specified in Executive Order 13175 (63 FR 67249,
November 9, 2000). This action will not have federalism implications,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866. This action
does not involve technical standards; thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This action does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional
Review Act, 5 U.S.C. 801 et seq., generally provides that before
certain actions may take affect, the agency promulgating the action
must submit a report, which includes a copy of the action, to each
House of the Congress and to the Comptroller General of the United
States. Since this final grant action contains legally binding
requirements, it is subject to the Congressional Review Act, and EPA
will submit this action in its report to Congress under the Act.
List of Subjects in 40 CFR Parts 30 and 31
Environmental protection, Administrative practice and procedure,
Reporting and recordkeeping requirements.
Dated: January 12, 2005.
David J. O'Connor,
Acting Assistant Administrator for the Office of Administration and
Resources Management.
EPA establishes assistance agreement competition-related dispute
resolution procedures as follows:
1. The authority citation for the assistance agreement competition-
related disputes resolution procedures in this document is the Federal
Grant and Cooperative Agreement Act, 31 U.S.C. 6301(3).
2. The disputes resolution procedures that will apply to EPA
assistance agreement competition-related disputes and disagreements
will be referenced or included in competitive announcements and are as
follows:
Dispute Resolution Procedures
a. Whenever practicable, disputes and disagreements relating to
assistance agreement competition-related decisions and actions must be
resolved at the lowest level possible.
b. The procedures and time frames specified below are designed to
provide for an efficient, effective, and meaningful dispute resolution
process. EPA Program Offices may use ``substantially the same'' dispute
procedures as those specified herein if they are approved by the EPA
Grants Competition Advocate (GCA) and provide applicants with a
meaningful dispute resolution process. A meaningful dispute resolution
process is one that affords unsuccessful applicants the opportunity for
an effective remedy if they succeed on their dispute.
c. Notification: (1) The Program Office conducting the competition
must provide applicants with timely written or e-mail notification that
they were (i) determined to be ineligible for award consideration as a
result of the threshold eligibility review of their application/
proposal (e.g., the application/proposal failed to meet the threshold
eligibility criteria in the announcement), or (ii) not selected for
award based on their ranking/scoring after an evaluation of their
application/ proposal against the ranking and
[[Page 3631]]
selection factors in section V of the announcement.
(2) Notification of ineligibility must be provided by the Program
Office to the applicant within fifteen calendar days of the decision
finding that the applicant was not eligible for award consideration
because of a failure to meet the threshold eligibility criteria in the
announcement; notification to applicants that they were not selected
for award based on the ranking/scoring of their proposal/application
must be provided by the Program Office to the applicant within fifteen
calendar days of the final selections for award.
(3) The notification letter or e-mail must indicate, as
appropriate, that the applicant and/or its application/proposal was not
eligible for award consideration based on the threshold eligibility
review, or not selected for award based on the ranking/scoring of its
application/proposal, and generally explain the reasons why. It must
also advise the applicant that it may request a fuller debriefing (and
notify the applicant that it must make its debriefing request within
fifteen calendar days of receiving the notification letter or e-mail)
of the basis for the ineligibility determination or selection decision.
Debriefings, however, are not required when an applicant's proposal/
application is rejected solely because it failed to meet a submission
deadline date specified in section IV of the announcement (e.g., it was
received, postmarked, etc., after the deadline established in the
announcement making it a late proposal/application).
d. Debriefings: (1) Debriefings may be done orally (e.g., face to
face, telephonically) or in writing at the discretion of the Program
Office, although oral debriefings are strongly preferred because they
provide a better opportunity to resolve questions and issues in an
expedited manner. For oral debriefings, the Program Office will conduct
the debriefing of the unsuccessful applicant at a mutually agreeable
time and place as soon as practicable after receiving the debriefing
request; for written debriefings, the Program Office will provide the
unsuccessful applicant with a written debriefing as soon as practicable
after receiving the debriefing request. All debriefings, but
particularly those for applicants that were deemed ineligible for award
consideration for failure to meet the threshold eligibility factors in
the announcement, must be conducted in a timely manner so that the
applicant has the opportunity to obtain a meaningful remedy if they
successfully challenge the ineligibility determination.
(2) Upon receiving a debriefing request from an unsuccessful
applicant, the Program Office must promptly notify the Director, Office
of Grants and Debarment, or regional award official, as appropriate, so
that a Grants Competition Dispute Decision Official (GCDDO) can be
designated.
(3) The oral or written debriefing will be limited to explaining
why the applicant was found ineligible for award consideration or why
it was not selected for award and must not disclose any information
protected from disclosure by applicable law or regulation (e.g., the
Freedom of Information Act, Privacy Act), including trade secrets,
privileged or confidential commercial, financial or other information
exempt from disclosure under the Freedom of Information Act, or the
identity of review panel members or other reviewers. The Program Office
should consult with Office of General Counsel/Office of Regional
Counsel (OGC/ORC) attorneys before any oral debriefing and allow them
to review any written debriefing response before it is sent. Further,
any questions relating to what type of information may be disclosed at
a debriefing must be directed to OGC/ORC attorneys or the Grants
Competition Advocate.
(4) The debriefing explanation will, as appropriate:
(A) Identify the threshold eligibility criteria that the applicant
failed to meet and specify the basis for the Agency's determination
that the proposal/application or applicant was not eligible for award
consideration because of failure to meet the threshold eligibility
criteria.
(B) Provide the applicant with the numerical (e.g., points) or
other basis for scoring/ranking its proposal/application under the
evaluation criteria used in the competition.
(C) Provide the applicant with information on the strengths and
weaknesses of its proposal/application in terms of the specific
evaluation criteria used in the competition.
(D) Provide responses to relevant questions regarding whether the
evaluation and selection procedures contained in the announcement were
followed and why the applicant was not selected for award. However, the
debriefing must not include point by point comparisons of the
applicant's proposal/application to other proposals/applications.
(E) Identify the GCDDO.
e. Filing of a Dispute: (1) After receiving a debriefing, an
unsuccessful applicant or their representative may file a written
dispute with the appropriate GCDDO. When there was an oral debriefing,
the written dispute must be received by the GCDDO within fifteen
calendar days of the debriefing date; when there was a written
debriefing, the written dispute must be received by the GCDDO within
fifteen calendar days of when the applicant received the written
debriefing letter. The written dispute must include a detailed
statement of the legal and/or factual basis for the dispute, the remedy
that the applicant is seeking, information on how to communicate with
the applicant or its representative (e.g., phone and fax numbers, e-
mail address), and any documentation relevant to the dispute. Disputes
may only be filed with the GCDDO after a debriefing; disputes filed
before, or in the absence of, a debriefing will be dismissed.
Furthermore, the GCDDO is only required to consider disputes on the
following grounds:
(A) Where an applicant challenges the EPA determination that it
and/or its proposed project is ineligible for funding based on the
applicable statute, regulation, or announcement requirements; or
(B) Where the applicant challenges the decision that it is not
eligible for award consideration because EPA determined that its
proposal/application did not meet the threshold eligibility
requirements contained in the announcement.
(2) Unsuccessful applicants whose proposal/application was rejected
solely because it was received late, or who were not selected for award
based on the ranking/scoring of its proposal/application after a full
evaluation by EPA based on the ranking and selection criteria in
section V of the announcement (e.g., challenges to the Agency's
technical evaluation or ranking/scoring of the applicant based on the
ranking and selection factors in section V of the announcement), are
not entitled to file disputes with the GCDDO. Such disputes will be
dismissed by the GCDDO except as may be provided for in paragraph (3)
below. In addition, the GCDDO may dismiss any dispute that is clearly
untimely filed, raises issues that the GCDDO will not consider, or that
fails to set forth a detailed statement of the legal and/or factual
basis for the dispute.
(3) The GCDDO, for good cause shown and where there are compelling
reasons, or where he/she determines that a dispute raises significant
issues of widespread interest to the assistance agreement community,
may consider an untimely filed dispute or any other dispute filed by an
unsuccessful
[[Page 3632]]
applicant. The GCDDO will invoke this discretion sparingly.
f. If a dispute is filed, the GCDDO must consult with the Program
Office, OGC/ORC, and the GCA, and then determine whether it is in the
Agency's best interest to delay the award process pending resolution of
the dispute, particularly for disputes involving threshold eligibility
issues.
g. Unsuccessful applicants must be provided with reasonable access
to Agency records relevant to the dispute in a manner consistent with
the standards contained in the Freedom of Information Act. EPA will not
disclose materials exempt from disclosure under the Freedom of
Information Act.
h. Upon receiving a dispute, the GCDDO will establish a process and
schedule for resolving the dispute and communicate this to the
applicant and affected Program Office. At his or her discretion, the
GCDDO may (i) request additional information from the applicant or
Program Office and/or (ii) meet by phone or in person with the
unsuccessful applicant and/or Program Office.
i. After reviewing all of the information relevant to the dispute,
the GCDDO, after consultation with the GCA, and with the concurrence of
the OGC/ORC, will timely issue a final written decision regarding the
dispute. The GCDDO's decision will constitute final agency action and
is not subject to further review within the Agency.
[FR Doc. 05-1371 Filed 1-25-05; 8:45 am]
BILLING CODE 6560-50-P