[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Page 2414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-661]



[[Page 2414]]

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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.

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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.

0
Therefore, 48 CFR part 209 is amended as follows:

PART 209--CONTRACTOR QUALIFICATIONS

0
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.

0
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]
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