Federal Acquisition Regulation; Pollution Control and Clean Air and Water

[Federal Register Volume 64, Number 92 (Thursday, May 13, 1999)]
[Proposed Rules]
[Pages 26264-26265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12154]



[[Page 26263]]

_______________________________________________________________________

Part XI

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Parts 1, 12, 23, and 52



Federal Acquisition Regulation; Pollution Control and Clean Air and 
Water; Proposed Rule

Federal Register / Vol. 64, No. 92 / Thursday, May 13, 1999 / 
Proposed Rules

[[Page 26264]]



DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 12, 23, and 52

[FAR Case 97-033]
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: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council are proposing to amend the Federal 
Acquisition Regulation (FAR) to remove Subpart 23.1, 52.223-1, and 
52.223-2. Improvements that are being implemented by the Environmental 
Protection Agency (EPA) will enable it to identify and provide more up-
to-date information on facilities that, because of their involvement in 
criminal violations of the Clean Air Act (CAA) or Clean Water Act 
(CWA), may not be used in the performance of Government contracts. 
Although this amendment eliminates the certification burden on offerors 
and bidders, the proposed changes represent no change to longstanding 
Federal policy that until such time as EPA determines that the causes 
giving rise to criminal CAA or CWA violations have been corrected, a 
contracting officer must not award a contract to be performed by 
convicted persons at ineligible facilities.

DATES: Comments should be submitted on or before July 12, 1999, to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (MVR), Attn: Laurie 
Duarte, 1800 F Street, NW, Room 4035, Washington, DC 20405.
    E-mail comments submitted over Internet should be addressed to: 
farcase.97-033@gsa.gov.
    Please cite FAR case 97-033 in all correspondence related to this 
case.

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 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 violation(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 EPA Administrator certifies that the conditions 
giving rise to the conviction have been corrected. To ensure that 
awards are made only to eligible facilities, FAR Subpart 23.1 provides 
at section 23.105, that an offeror must certify whether it proposes to 
use a facility that is on the EPA List of Violating Facilities and that 
it will notify the contracting officer before award, if it receives 
from EPA notice that EPA is considering listing the facility (FAR 
52.223-1, Clean Air and Water Certification).
    The FAR previously has considered different methods of enforcing 
the CAA and CWA ineligibility provisions. The Federal Acquisition 
Streamlining Act of 1994 (Pub. L. 103-355, Section 8301(g), 42 U.S.C. 
7606 note) prohibited the use, in commercial item acquisitions, of a 
certification or a contract clause to implement the otherwise unchanged 
ineligibility provisions of the two statutes. Section 4301(b) of the 
Clinger-Cohen Act of 1996 (Pub. L. 104-106) required the Administrator 
for Federal Procurement Policy to issue for public comment a proposal 
to remove from the FAR those certification requirements that were not 
specifically imposed by statute. The FAR published a final rule in the 
Federal Register at 61 FR 233 on January 2, 1997 (FAR Case 96-312), 
implementing the CAA and CWA amendments for commercial items, but 
retained the certification for other acquisitions as the least 
burdensome and most effective means of ensuring that Government 
contracts were not awarded to a contractor proposing to use, for 
contract performance, a listed facility (62 FR 233).
    This proposed rule would remove FAR Subpart 23.1, the certification 
at FAR 52.223-1, the contract clause at FAR 52.223-2, Clean Air and 
Water, and would provide agency contracting officers with a uniform 
procedure to determine a persons eligibility for award of a Government 
contract or subcontract. The same procedure would apply regardless of 
whether the acquisition is for a commercial item or not. FAR Subpart 
9.4 requires that before awarding contracts and approving subcontracts, 
agency contracting officers must check the GSA List of Parties Excluded 
from Federal Procurement and Nonprocurement Programs (GSA List). 
Internet access to the GSA List is available (https://www.arnet.gov/
epls). 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. The textual 
content of Code H is provided to GSA by the EPA Debarring Official, the 
Federal official with the delegated responsibility for determining when 
CAA and CWA-ineligible parties have corrected the conditions giving 
rise to their criminal convictions.
    In the past, certifications served to ensure that bidders and 
offerors who were convicted of violations of the CAA and CWA identified 
themselves to Contracting Officers. This mechanism supplemented the GSA 
List which, because of occasional delays and lapses in communicating 
criminal conviction information to EPA officials, might not include an 
offeror or bidder with a recent CAA or CWA conviction. The EPA plans to 
improve its information systems with a view toward making the CAA and 
CWA ineligibility data in the GSA List as complete and timely as 
possible.
    By improving its information systems and revising the Cause and 
Treatment Code, EPA believes that FAR Subpart 23.1 can be removed 
without having a detrimental effect on the Government's environmental 
policy. Reliance on the GSA List provides an adequate mechanism for 
ensuring that agency contracting officers do not award contracts to 
ineligible offerors. As a result of these developments, the necessity 
for a certification to achieve compliance with the CAA and CWA 
ineligibility provisions has been significantly diminished, if not 
eliminated.
    This rule also would remove the contract clause at FAR 52.223-2. 
This clause states that the contractor agrees to comply with the CAA 
and CWA. Neither statute requires that such a clause be included in 
Federal contracts and subcontracts. The elimination of the clause in no 
way would diminish the Government's ability to enforce the CAA

[[Page 26265]]

and CWA requirements that apply to efforts performed under Federal 
contracts.
    This regulatory action was not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993, 
and is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    This 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 
generally less than 50 facilities a year are ineligible for contract 
award as a result of convictions for violations of the CAA or CWA. An 
Initial Regulatory Flexibility Analysis has, therefore, not been 
performed. Comments from small entities concerning the affected FAR 
subpart will be considered in accordance with 5 U.S.C. 610 of the Act. 
Such comments must be submitted separately and should cite 5 U.S.C. 
601, et seq. (FAR case 97-033), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501, et seq.) is deemed to 
apply because the proposed rule would eliminate an information 
collection requirement approved under OMB Control Number 9000-0021. 
Accordingly, a request to remove the requirement will be submitted to 
the Office of Management and Budget under 44 U.S.C. 3501, et seq.

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

    Government procurement.

    Dated: May 7, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Parts 1, 12, 23, and 52 are amended 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. Section 1.106 is amended in the introductory text by removing 
the word ``ten'' and adding ``10''; and in the table following the 
introductory paragraph by removing FAR segment ``52.223-1'' and its 
corresponding OMB Control Number, ``9000-0021''.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

    3. Section 12.503 is amended by revising the introductory text of 
paragraph (b); removing paragraph (b)(1); redesignating (b)(2) and 
(b)(3) as (b)(1) and (b)(2), respectively; removing paragraph (b)(4); 
and redesignating paragraph (b)(5) as (b)(3).


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:
* * * * *


12.504   Applicability of certain laws to subcontracts for the 
acquisition of commercial items.

    4. Section 12.504 paragraph (b) is revised to read as follows:
* * * * *
    (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   [Reserved]

    5. Subpart 23.1 is removed and reserved.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.223-1   [Removed and Reserved]

    6. Section 52.223-1 is removed and reserved.


52.223-2   [Removed and Reserved]

    7. Section 52.223-2 is removed and reserved.

[FR Doc. 99-12154 Filed 5-12-99; 8:45 am]
BILLING CODE 6820-EP-P