[Federal Register Volume 65, Number 170 (Thursday, August 31, 2000)]
[Rules and Regulations]
[Pages 52954-52955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22093]
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DEPARTMENT OF DEFENSE
48 CFR Parts 209 and 223
[DFARS Case 2000-D004]
Defense Federal Acquisition Regulation Supplement; Pollution
Control and Clean Air and Water
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: The Director of Defense Procurement has issued a final rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to revise and relocate policy on the level of approval required to
except a contract from certain restrictions of the Clean Air Act or the
Clean Water Act. The policy is moved from the Pollution Control and
Clean Air and Water subpart to the Debarment, Suspension, and
Ineligibility subpart of the DFARS, because the Federal Acquisition
Regulation (FAR) subpart on Pollution Control and Clean Air and Water
has been removed.
EFFECTIVE DATE: August 31, 2000.
FOR FURTHER INFORMATION CONTACT: Ms. Sandra G. Haberlin, Defense
Acquisition Regulations Council, OUSD(AT&L)DP(DAR), IMD 3D139, 3062
Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0289;
telefax (703) 602-0350. Please cite DFARS Case 2000-D004.
SUPPLEMENTARY INFORMATION:
A. Background
On December 27, 1999, Item I of Federal Acquisition Circular 97-15
(64 FR 72415) removed Subpart 23.1, Pollution Control and Clean Air and
Water, from the FAR. Subpart 23.1 contained policy pertaining to
entities that are ineligible for contract award due to a violation of
the Clean Air Act or the Clean Water Act. The FAR text was deemed
unnecessary, because contracting officers can use the General Services
Administration List of Parties Excluded from Federal Procurement and
Nonprocurement Programs to ensure that they do not award contracts to
ineligible entities. In accordance with Environmental Protection Agency
regulations at 40 CFR 32.215(b), FAR Subpart 23.1 permitted an agency
head to except a contract from the prohibition on award to a Clean Air
Act or Clean Water Act violator if it was in the paramount interest of
the United States to do so. DFARS Subpart 223.1 limited delegation of
this exception authority to a level no lower than an official who is
appointed by and with the advice of the Senate.
This final rule--
1. Removes the text from DFARS Subpart 223.1, since FAR Subpart
23.1 no longer exists; and relocates the text to DFARS 209.405(b),
since the corresponding text at FAR 9.405(b) addresses matters relating
to entities on the List of Parties Excluded from Federal Procurement
and Nonprocurement Programs;
2. Retains a limitation on delegation of the exception authority,
but lowers the permitted level of delegation to a level no lower than a
general or flag officer or a member of the Senior Executive Service;
and
3. Designates the text already located at DFARS 209.405 as
209.405(a), and amends the text to clarify that the provisions of 10
U.S.C. 2393 regarding a ``compelling reason'' determination apply only
to the conduct of business with entities that are debarred or
suspended.
DoD published a proposed rule at 65 FR 32065 on May 22, 2000. DoD
received no public comments on the proposed rule. The proposed rule is
converted to a final rule without change.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this final rule will not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule pertains only to the exceptional situations where
there is a need to conduct business with entities that are debarred or
suspended or, because of a violation of the Clean Air Act or the Clean
Water Act, are ineligible for award.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
[[Page 52955]]
List of Subjects in 48 CFR Parts 209 and 223
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 209 and 223 are amended as follows:
1. The authority citation for 48 CFR Parts 209 and 223 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 209--CONTRACTOR QUALIFICATIONS
2. Section 209.405 is revised to read as follows:
209.405 Effect of listing.
(a) Under 10 U.S.C. 2393(b), when a department or agency determines
that a compelling reason exists for it to conduct business with a
contractor that is debarred or suspended from procurement programs, it
must provide written notice of the determination to the General
Services Administration, Office of Acquisition Policy. Examples of
compelling Reasons are--
(i) Only a debarred or suspended contractor can provide the
supplies or services;
(ii) Urgency requires contracting with a debarred or suspended
contractor;
(iii) The contractor and a department or agency have an agreement
covering the same events that resulted in the debarment or suspension
and the agreement includes the department or agency decision not to
debar or suspend the contractor; or
(iv) The national defense requires continued business dealings with
the debarred or suspended contractor.
(b)(i) The Procurement Cause and Treatment Code ``H'' annotation in
the GSA List of Parties Excluded from Federal Procurement and
Nonprocurement Programs identifies contractors that are declared
ineligible for award of a contract or subcontract because of a
violation of the Clean Air Act (42 U.S.C. 7606) or the Clean Water Act
(33 U.S.C. 1368).
(ii) Under the authority of 40 CFR 32.215(b), the agency head may
grant an exception permitting award to a Code ``H'' ineligible
contractor if it is in the paramount interest of the United States.
(A) The agency head may delegate this exception authority to a
level no lower than a general or flag officer or a member of the Senior
Executive Service.
(B) The official granting the exception must provide written notice
to the Environmental Protection Agency debarring official.
PART 223--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
Subpart 223.1--[Removed]
3. Subpart 223.1 is removed.
[FR Doc. 00-22093 Filed 8-30-00; 8:45 am]
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