[Title 40 CFR D]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY]
[Subchapter B - GRANTS AND OTHER FEDERAL ASSISTANCE]
[Part 32 - GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS); CLEAN AIR ACT]
[Subpart D - Suspension]
[From the U.S. Government Printing Office]


40PROTECTION OF ENVIRONMENT12002-07-012002-07-01falseSuspensionDSubpart DPROTECTION OF ENVIRONMENTENVIRONMENTAL PROTECTION AGENCYGRANTS AND OTHER FEDERAL ASSISTANCEGOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS); CLEAN AIR ACT
                          Subpart D--Suspension



Sec. 32.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 32.405 using procedures established in Secs. 32.410 
through 32.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 32.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 32.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Secs. 32.400 through 32.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in 
Sec. 32.305(a); or
    (2) That a cause for debarment under Sec. 32.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 32.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source

[[Page 392]]

shall be promptly reported, investigated, and referred, when 
appropriate, to the suspending official for consideration. After 
consideration, the suspending official may issue a notice of suspension.
    (b) Decisionmaking process. EPA shall process suspension actions as 
informally as practicable, consistent with principles of fundamental 
fairness, using the procedures in Sec. 32.411 through Sec. 32.413.



Sec. 32.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 32.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 32.411 through Sec. 32.413 and any 
other EPA procedures, if applicable, governing suspension 
decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 32.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (1) If the respondent desires a hearing, it shall submit a written 
request to the suspending official within the 30-day period following 
receipt of the notice of suspension.
    (2) [Reserved]
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.

[53 FR 19196, 19204, May 26, 1988, as amended at 53 FR 19197, May 26, 
1988]



Sec. 32.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 32.320(c) for reasons for reducing the period or scope 
of debarment) or may leave it in force. However, a decision to modify or 
terminate the suspension shall be without prejudice to the subsequent 
imposition of suspension by any other agency or debarment by any agency. 
The decision shall be rendered in accordance with the following 
provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.

[[Page 393]]

    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 32.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an impending termination of a suspension, at least 30 days before the 
12-month period expires, to give that Department an opportunity to 
request an extension.



Sec. 32.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 32.325), except that the procedures of Secs. 32.410 through 
32.413 shall be used in imposing a suspension.



Sec. 32.430  Appeal.

    (a) The suspension determination under Sec. 32.413 shall be final. 
However, any party to the action may request the Director, Office of 
Grants and Debarment (OGD Director), to review the findings of the 
suspending official by filing a request with the OGD Director within 30 
calendar days of the party's receipt of the suspension determination, or 
its reconsideration. The request must be in writing and set forth the 
specific reasons why relief should be granted.
    (b) A review under this section shall be at the discretion of the 
OGD Director. If a review is granted, the suspending official may stay 
the effective date of a suspension order pending resolution of appeal. 
If a suspension is stayed, the stay shall be automatically lifted if the 
OGD Director affirms the suspension.
    (c) The review shall be based solely upon the record. The OGD 
Director may set aside a determination only if it is found to be 
arbitrary, capricious, an abuse of discretion, or based upon a clear 
error of law.
    (d) The OGD Director's subsequent determination shall be in writing 
and mailed to all parties.
    (e) A determination under Sec. 32.413 or a review under this section 
shall not be subject to a dispute or a bid protest under parts 30, 31, 
or 33 of this subchapter.

[53 FR 19197, May 26, 1988, as amended at 59 FR 50693, Oct. 5, 1994; 62 
FR 47149, Sept. 8, 1997]