define its powers and parameters of operation. They include such documents as the Articles of Incorporation or Association, Constitution, Charter and By-Laws.

Intergovernmental

agreement

(g) means any written agreement between units of government under which one public agency performs duties for or in concert with another public agency using EPA assistance. This includes substate and interagency agreements.

(h) Person means any individual, organization or unit of government that is or may become eligible to receive EPA assistance, or its employee. It also means any individual or organization that is or may become eligible to receive a subagreement or intergovernmental agreement.

(i) Subagreement means a written agreement between a recipient of EPA assistance and another party (other than a public agency) and any tier of agreement thereunder for the furnishing of supplies, services, or equipment necessary to complete the project for which the assistance was awarded. These agreements include contracts and subcontracts for personal and professional services, agreements with consultants, and purchase orders.

(j) Suspension means an action taken by the Director under § 32.300 to disqualify a person temporarily from receiving any EPA assistance or subagreement.

(k) Substantial evidence means such relevant evidence as a reasonable person might accept as sufficient to support a particular conclusion.

§ 32.200 Causes for debarment.

A person or its affiliate may be debarred for the following:

(a) Conviction of or a civil or nolo contendere judgment obtained for:

(1) Criminal commission of fraud, embezzlement, theft, forgery, bribery, falsification or destruction of records, or receiving stolen property;

(2) Violation of law or regulation relating to personal or organizational conflict of interest as an incident to obtaining, attempting to obtain, or in the performance of, Federally or State assisted programs or public contracts;

or

(3) Violation of Federal or State antitrust statutes arising out of submission of applications, bids, or proposals.

(b) Involvement in bribery or other unlawful or corrupt practices on a public contract or publicly-assisted project.

(c) A willful or serious failure to perform, or a recent history of substantial non-compliance with the terms of, one or more Federal assistance agreements, contracts, or subagreements.

(d) Violation of any contractual provision against receipt of contingent fees.

(e) Record of noncompliance with rules and regulations governing public assistance and contracts so as to indicate a careless attitude toward good faith compliance.

by any Federal

(g) Failure to pay debts to EPA that have been finally adjudicated and that are not subject to a good faith defense by the debtor.

(h) Doing business on any EPA project, or portion thereof, with a person, who, at the time of initiation of such business, was listed on the Master List (see § 32.400) and it is known or should have been known that the person was on the list.

(i) For any other causes of a serious and compelling nature indicating lack of business integrity or competency which may be determined to justify debarment.

§ 32.201 Initiation of debarment.

Anyone may contact the Director concerning the existence of a cause for debarment. The Director may refer the matter to EPA's Inspector General or other appropriate office for further investigation. If, after review or investigation, the Director reasonably believes that a cause for debarment exists, the Director may propose debarment under § 32.204.

8 32.202 Affiliates and imputed conduct.

(a) Where the Director proposes to debar an affiliate, the affiliate shall have a right to:

(1) Receive notice of the proposed debarment; and

(2) Intervene in any hearing held on the proposed debarment to show mitigating circumstances or that the affiliate had no actual or imputed knowledge of or involvement in the improper conduct.

(b) The affiliate must, in writing, advise the Director within 30 calendar days of the notice of the proposed debarment of its intention to act under paragraph (a)(2) of this section. Failure to provide written notice within the 30 calendar-day period shall be a waiver of the right to intervene in the hearing.

(c) The improper conduct of a person or its affiliate having a subagreement with an assistance recipient or its contractor may be imputed to the assistance recipient or contractor for purposes of debarment where the impropriety occurred in connection with the person's duties for or on behalf of, or with the knowledge, approval, or acquiescence of, the recipient, contractor, or their management. § 32.203

Period of debarment.

(a) Unless otherwise provided in this section, debarment shall be for a period of time commensurate with the seriousness of the cause for debarment, not to exceed 3 years from the date of debarment determination.

(b) Where debarment is based solely upon debarment by another Federal agency, the period of debarment may run concurrently with the period established by that other debarring agency.

(c) Debarment may be for an indefinite period where a person who was previously debarred by any Federal agency is determined to have repeated the same offense.

(1) That debarment is being proposed;

(2) The specific acts or omissions which form the basis of the proposed debarment;

(3) That the party being served will be accorded an opportunity for a hearing if the person so requests and the request is made in writing within 30 calendar days after the date of notice; and

(4) That failure to timely request a hearing will result in debarment as proposed.

(c) If the person is under suspension, the notice of proposed debarment shall specify that unless the suspension order is terminated, the suspension continues until the debarment proceedings are completed. If the suspension and debarment actions are taken simultaneously, the notice shall also include all of the information required by § 32.302 of this part.

§ 32.205 Hearing.

(a) The Director shall act as a hearing officer or appoint a hearing officer or panel which shall conduct a hearing if the person or affiliate who is the subject of a proposed debarment action requests a hearing in accordance with § 32.204(b)(3) of this part.

(b) The hearing officer or panel shall arrange for a prompt hearing and notify the parties, in writing, of the time and place of the hearing. In no event shall the hearing be initiated later than 6 months after the request is received unless the Inspector General determines that an earlier hearing is likely to jeopardize an investigation.

(c) The hearing shall be conducted in an informal manner without formal rules of evidence or procedure. Persons shall have the right of counsel, and the right to call, ask questions of, and confront witnesses.

(d) A transcribed record of the hearing shall be made available, at cost upon request.

(e) The existence of the cause(s) for debarment shall be proved by substantial evidence, except where the cause is established under § 32.200(a)(1) of this part by proof of judgment or conviction of the offenses.

(a) The hearing officer or panel shall make a written determination on the evidence presented, including mitigating factors and the extent to which the determination applies to any affiliates named in the action. The determination shall be reviewed by the Director, who, if he or she agrees with the findings, shall sign and send it to all parties by personal service or certified mail, return receipt requested.

(b) Any party may seek reconsideration for alleged errors of fact or law. The request must specifically describe the basis for the request and must be filed with the hearing officer or panel within 10 calendar days from the date of the person's receipt of the determination.

(c) Where a debarred person is the recipient of an assistance award, the award shall be evaluated on its own merits by the award official to see if it should be terminated under Part 30 of this subchapter.

§ 32.207 Appeals.

(a) The determination under § 32.206 shall be final. However, any party to the debarment action may request EPA's Board of Assistance Appeals to review the findings of the hearing officer or panel within 30 calendar days of the determination, or its reconsideration.

(b) If an appeal is requested, the Director may stay the effective date of debarment pending the Board's determination. If debarment is stayed, the stay shall be automatically lifted if the Board affirms the Director's determination.

(c) Notice of the Board's decision to review the hearing determination and the subsequent determination by the Board shall be in writing and sent to all parties by personal service or certified mail, return receipt requested.

(d) Where a review is granted, the determination by the Board shall be final and shall be based solely on the record of the hearing. The Board's scope of review shall be limited to setting aside hearing determinations found to be arbitrary, capricious, or an abuse of discretion, or based upon clear errors of law. The final determination shall recite the grounds upon

(a) Unless prohibited by statute, the Director may at any time reinstate a debarred person or rescind the debarment upon a determination that the cause(s) upon which the debarment is based no longer exists.

(b) Any debarred person may request reinstatement by submitting a petition to the Director supported by documentary evidence showing that the cause(s) for debarment no longer exists or has been substantially mitigated.

(c) The decision whether to reinstate will ordinarily be based on written statements with supporting documentation without a further hearing. However, the Director may require a hearing on the request for reinstatement.

(d) The decision on reinstatement shall be in writing and shall specify the factors on which it is based.

(e) Decisions on reinstatement requests are not subject to appeal.

§ 32.209 Limited participation.

In an emergency, the Director may allow a debarred person to participate in EPA programs on a limited basis during the debarment period. In such situations, the Director shall make a written determination that the public interest requires such participation. The determination shall specify the factors on which it is based and define the extent of the limits imposed.

8 32.210 Voluntary exclusions and settle

ments.

(a) When in the best interest of EPA, the Director may, at any time prior to the determination, settle a debarment action or enter into an agreement with a person providing for that person's voluntary exclusion from EPA programs for a specified period of time.

(b) Voluntary exclusions and settlements are not findings of debarment by EPA. However, violations of agree

ments for voluntary exclusions and settlements may result in initiation of debarment proceedings as originally proposed.

§ 32.300 Suspension.

(a) Whenever there is adequate evidence that grounds for debarment exist, the Director may suspend a person from receiving any award in accordance with the procedures in § 32.302.

(b) The Director shall suspend only where compelling reasons exist to protect the interests of EPA which would be jeopardized by waiting for completion of a debarment hearing or action. The Director may also suspend a person or its affiliates if there is referral of a criminal matter to the Department of Justice, initiation of a grand jury proceeding regarding the matter, or an outstanding indictment or information for a criminal offense and where there is a reasonable connection between those matters and performance under an EPA assistance program.

§ 32.301 Period and scope of suspension.

(a) Unless otherwise agreed to by the parties, the period of suspension shall be:

(1) No more than 30 calendar days without satisfying the notice requirements of § 32.302;

(2) Until completion of an investigation and ensuing legal proceedings, including debarment proceedings, where suspension is based upon referral of a matter to the Department of Justice, initiation of a grand jury proceeding, or issuance of an indictment or criminal information; or

(3) Six months unless a debarment proceeding is initiated within six months after issuance of a notice of suspension in which case suspension shall continue in effect until issuance of a debarment order.

(b) The Director shall determine whether to include affiliates in a suspension action on a case-by-case basis.

(c) For purpose of suspension, a person's conduct may be imputed to another person in accordance with § 32.202.

(d) Any person who knowingly participated in the conduct may also be

suspended. The person is entitled to notice and opportunity for a hearing in accordance with § 32.302.

§ 32.302 Notice, hearing, determination and appeal.

(a) When a person is suspended, the Director shall issue a notice of the suspension to all affected persons by personal service or certified mail, return receipt requested. Notice, if undeliverable, shall be considered to have been received by the addressee if properly sent to the last address known by EPA.

(b) The notice of suspension shall state:

(1) The bases for suspension and identify the indictment or describe the specific nature of the irregularities, without disclosing the Government's evidence;

(2) The period of the suspension;

(3) Bids, proposals, and applications for assistance will not be solicited or accepted from the person and, if received, will not be considered; and

(4) The person given notice is entitled to a hearing on the suspension if the person requests a hearing within 30 calendar days after the date of the notice.

(c) A hearing under this section shall be conducted, to the extent practicable, in accordance with the procedures in § 32.205 (a) through (d).

(d) The hearing officer or panel shall make a written suspension determination on the evidence presented, including mitigating factors and the extent to which the determination applies to any affiliates named in the action. The determination shall be reviewed by the Director, who, if he or she agrees with the findings, shall sign and send it to all parties by personal service or certified mail, return receipt requested.

(e) Any party may seek reconsideration for alleged errors of fact or law in accordance with the procedures in § 32.206(b).

(f) The suspension determination shall be final. However, any party to the suspension action may request EPA's Board of Assistance Appeals to review the findings of the hearing officer or panel in accordance with the

(4) The name of the debarring or suspending agency, where EPA's debarment or suspension is based on debarment or suspension by another Federal agency.

(c) The Master List shall include a separate section listing persons voluntarily excluded from participation in EPA programs.

§ 32.500 Implementation.

(a) The Director shall send to each Regional Counsel and publish in the FEDERAL REGISTER an updated copy of the Master List at least each calendar quarter during the year.

(b) The list shall be made available to anyone for inspection to determine a person's eligibility for award.

(c) Award of EPA assistance or subagreements shall not be made to any person on the Master List.

(d) Doing business under an EPA assistance agreement with a person who is named on the Master List may result in disallowance of costs under such agreement and may result in suspension or debarment under this part.