[Federal Register: May 22, 2000 (Volume 65, Number 99)]
[Proposed Rules]               
[Page 32065-32066]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my00-30]                         

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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: Proposed rule with request for comments.

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SUMMARY: The Acting Director of Defense Procurement is proposing to 
amend 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.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before July 21, 2000, to be considered in 
the formation of the final rule.

ADDRESSES: Interested parties should submit written comments on the 
proposed rule to: Defense Acquisition Regulations Council, Attn: Ms. 
Sandra G. Haberlin, PDUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telefax (703) 602-0350.
    E-mail comments submitted via the Internet should be addressed to: 
dfars@acq.osd.mil
    Please cite DFARS Case 2000-D004 in all correspondence related to 
this proposed rule. E-mail correspondence should cite DFARS Case 2000-
D004 in the subject line.

[[Page 32066]]


FOR FURTHER INFORMATION CONTACT: Ms. Sandra G. Haberlin, (703) 602-
0289.

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 DFARS rule proposes to--
    1. Remove the text from DFARS Subpart 223.1, since FAR Subpart 23.1 
no longer exists; and relocate 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. Retain a limitation on delegation of the exception authority, 
but lower 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. Designate the text already located at DFARS 209.405 as 
209.405(a), and amend 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.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    The proposed rule is not expected to 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. Therefore, an initial regulatory flexibility 
analysis has not been performed. Comments are invited from small 
businesses and other interested parties. Comments from small entities 
concerning the affected DFARS subparts also will be considered in 
accordance with 5 U.S.C. 610. Such comments should be submitted 
separately and should cite DFARS Case 2000-D004.

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.

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 proposed to be 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--
    (1) Only a debarred or suspended contractor can provide the 
supplies or services;
    (2) Urgency requires contracting with a debarred or suspended 
contractor;
    (3) 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 of agency decision not to 
debar or suspend the contractor; or
    (4) 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. 00-12414 Filed 5-19-00; 8:45 am]
BILLING CODE 5000-04-M