[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]