Federal Acquisition Regulation; Pollution Control and Clean Air and Water

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 12, 23, and 52

[FAC 97-15; FAR Case 97-033; Item I]

RIN 9000-AI19

Federal Acquisition Regulation; Pollution Control and Clean Air

and Water

AGENCIES: Department of Defense (DoD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council (Councils) have agreed on a final rule

that amends the Federal Acquisition Regulation (FAR) to eliminate the

burden on offerors to certify that they do not propose to use a

facility for the performance of the contract that is ineligible for

award because it is on the Environmental Protection Agency's (EPA)

``List of Violating Facilities.'' Contracting officers will use the GSA

List of Parties Excluded from Federal Procurement and Nonprocurement

Programs (GSA List) to ensure that they do not award contracts to

ineligible offerors. This change represents no change to the

longstanding policy that a contracting officer must not award a

contract if performance of the contract would be at a facility that has

not corrected the cause that gave rise to a criminal conviction under

the Clean Air Act or Clean Water Act.

DATES: Effective Date: February 25, 2000.

Applicability Date: The FAR, as amended by this rule, is applicable

to solicitations issued on or after February 25, 2000.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405, (202) 501-4755, for information

pertaining to status or publication schedules. For clarification of

content, contact Mr. Paul Linfield, Procurement Analyst, at (202) 501-

1757. Please cite FAC 97-15, FAR case 97-033.

SUPPLEMENTARY INFORMATION:

A. Background

Section 306 of the Clean Air Act (CAA) (42 U.S.C. 7606) and Section

508 of the Clean Water Act (CWA) (33 U.S.C. 1368) prohibit award of a

Federal contract to any person who has been convicted of various

violations under the Acts if the convicted person owns, leases, or

supervises the facility at which the violations(s) occurred; and any

part of the contract will be performed at the violating facility. This

ineligibility begins the moment a judgment of conviction is entered.

The statutes provide that the ineligibility for contract award remains

in effect until the Administrator of the Environmental Protection

Agency (EPA) certifies that the conditions giving rise to the

conviction have been corrected. Excluded parties whose ineligibility is

limited by reason of a CAA or CWA conviction are identified by the

facility and conviction listing, the Cause and Treatment Code ``H''

annotation, in the GSA List. Internet access to the GSA List is

available at ``http://epls.arnet.gov/''.

The Councils published a proposed rule in the Federal Register at

64 FR 26264, May 13, 1999, that explained how the removal of FAR

Subpart 23.1, FAR 52.223-1, and FAR 52.223-2 would not have a

detrimental effect on the Government's environmental policy or its

ability to enforce CAA and CWA requirements that apply to efforts

performed under Federal contracts. Four respondents submitted comments

concurring with the proposed rule. The Councils have agreed to convert

the proposed rule to a final rule without change.

This rule was not subject to Office of Management and Budget review

under Section 6(b) of Executive Order 12866, Regulatory Planning and

Review, dated September 30, 1993. This rule is not a major rule under 5

U.S.C. 804.

[[Page 72416]]

B. Regulatory Flexibility Act

The Department of Defense, the General Services Administration, and

the National Aeronautics and Space Administration certify 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 generally less than 50

facilities a year are ineligible for contract award as a result of

convictions for violations of the CAA or CWA.

C. Paperwork Reduction Act

The Paperwork Reduction Act applies because these changes remove an

information collection requirement approved under OMB Control Number

9000-0021. The paperwork to remove the collection from the FAR

inventory will be submitted to OMB.

List of Subjects in 48 CFR Parts 1, 12, 23, and 52

Government procurement.

Dated: December 20, 1999.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 12, 23, and 52

as set forth below:

1. The authority citation for 48 CFR parts 1, 12, 23, and 52

continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

1.106 [Amended]

2. In section 1.106, amend the introductory text by removing the

word ``ten'' and adding ``10''; and in the table following the

introductory paragraph remove FAR segment ``52.223-1'' and its

corresponding OMB Control Number, ``9000-0021''.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

3. In section 12.503, revise the introductory text of paragraph

(b); remove paragraph (b)(1); redesignate paragraphs (b)(2) and (b)(3)

as (b)(1) and (b)(2), respectively; remove paragraph (b)(4); and

redesignate paragraph (b)(5) as (b)(3). The revised text reads as

follows:

12.503 Applicability of certain laws to executive agency contracts for

the acquisition of commercial items.

* * * * *

(b) Certain requirements of the following laws are not applicable

to executive agency contracts for the acquisition of commercial items:

* * * * *

4. Revise paragraph (b) in section 12.504 to read as follows:

12.504 Applicability of certain laws to subcontracts for the

acquisition of commercial items.

* * * * *

(b) The requirements for a certificate and clause under the

Contract Work Hours and Safety Standards Act, 40 U.S.C. 327, et seq.,

(see Subpart 22.3) are not applicable to subcontracts at any tier for

the acquisition of commercial items or commercial components.

* * * * *

PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-

FREE WORKPLACE

23.1 [Removed and Reserved]

5. Subpart 23.1 is removed and reserved.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.223-1 and 52.223-2 [Reserved]

6. Sections 52.223-1 and 52.223-2 are removed and reserved.

[FR Doc. 99-33430 Filed 12-23-99; 8:45 am]

BILLING CODE 6820-EP-P