2414 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 209 

RIN 0750–AF97 

Defense Federal Acquisition 

Regulation Supplement; Clean Air Act 

and Clean Water Act Exemptions 

(DFARS Case 2007–D022) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to address the procedures that 

apply when it is necessary to award to 

a contractor that is otherwise excluded 

from Federal procurement programs due 

to a violation of the Clean Air Act or the 

Clean Water Act. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angie Sawyer, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–8384; 

facsimile 703–602–7887. Please cite 

DFARS Case 2007–D022. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The List of Parties Excluded from 

Federal Procurement and 

Nonprocurement Programs, maintained 

by the General Services Administration, 

identifies contractor facilities where no 

part of a Federal contract or subcontract 

may be performed due to a violation of 

the Clean Air Act (42 U.S.C. 7606) or the 

Clean Water Act (33 U.S.C. 1368). In 

accordance with Executive Order 11738, 

the head of a Federal agency may grant 

an exemption permitting award to a 

contractor using an otherwise ineligible 

facility, if the head of the agency 

determines that the exemption is in the 

paramount interest of the United States. 

This final rule amends the procedures 

specified in the DFARS for processing 

such an exemption, to more closely 

align with the requirements of Executive 

Order 11738. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment under 

41 U.S.C. 418b is not required. 

However, DoD will consider comments 

from small entities concerning the 

affected DFARS subpart in accordance 

with 5 U.S.C. 610. Such comments 

should cite DFARS Case 2007–D022. 

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 Part 209 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 209 is 

amended as follows: 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 1. The authority citation for 48 CFR 

part 209 continues to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

■ 2. Section 209.405 is amended by 

revising paragraph (b) to read as follows: 

209.405 Effect of listing. 

* * * * * 

(b)(i) The Procurement Cause and 

Treatment Code ‘‘H’’ annotation in the 

GSA List of Parties Excluded from 

Federal Procurement and 

Nonprocurement Programs identifies 

contractor facilities where no part of a 

contract or subcontract may be 

performed 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 Section 8 

of Executive Order 11738, the agency 

head may grant an exemption 

permitting award to a contractor using 

a Code ‘‘H’’ ineligible facility if the 

agency head determines that such an 

exemption is in the paramount interest 

of the United States. 

(A) The agency head may delegate 

this exemption 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 

exemption— 

(1) Shall promptly notify the 

Environmental Protection Agency 

suspending and debarring official of the 

exemption and the corresponding 

justification; and 

(2) May grant a class exemption only 

after consulting with the Environmental 

Protection Agency suspending and 

debarring official. 

(C) Exemptions shall be for a period 

not to exceed one year. The continuing 

necessity for each exemption shall be 

reviewed annually and, upon the 

making of a new determination, may be 

extended for periods not to exceed one 

year. 

(D) All exemptions must be reported 

annually to the Environmental 

Protection Agency suspending and 

debarring official. 

(E) See PGI 209.405 for additional 

procedures and information. 

[FR Doc. E9–661 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 209 

RIN 0750–AG20 

Defense Federal Acquisition 

Regulation Supplement; Responsible 

Prospective Contractors (DFARS Case 

2008–D022) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to address use of the Past 

Performance Information Retrieval 

System (PPIRS) in determining 

contractor responsibility. PPIRS is a 

Web-based application that stores 

information regarding contractor 

performance on Government contracts. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Benavides, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP(DARS), IMD 3D139, 

3062 Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–1302; 

facsimile 703–602–7887. Please cite 

DFARS Case 2008–D022. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule adds text at DFARS 

209.105–1 to address use of PPIRS 

(available at http://www.ppirs.gov) in 

meeting requirements for determining 

contractor responsibility. The rule 

emphasizes that use of PPIRS 

information regarding contract 

mstockstill on PROD1PC66 with RULES