[Federal Register Volume 60, Number 189 (Friday, September 29, 1995)]
[Notices]
[Pages 50738-50743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24214]
[[Page 50737]]
_______________________________________________________________________
Part X
Environmental Protection Agency
_______________________________________________________________________
Guidance Implementing Executive Order 12969; Federal Acquisition;
Community Right-to-Know; Toxic Chemical Release Reporting; Notice
Federal Register / Vol. 60, No. 189 / Friday, September 29, 1995 /
Notices
[[Page 50738]]
ENVIRONMENTAL PROTECTION AGENCY
[OPPTS-400099; FRL-4977-9]
RIN 2070-ZA00
Guidance Implementing Executive Order 12969; Federal Acquisition;
Community Right-to-Know; Toxic Chemical Release Reporting
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: On August 8, 1995, President Clinton signed Executive Order
(E.O.) 12969, mandating that each Federal agency include in contract
solicitations as an eligibility criterion for competitive acquisition
contracts expected to exceed $100,000, the requirement that Federal
contractors ensure that Toxic Chemical Release Inventory Forms (Form
Rs) are filed by their covered facilities for the life of the contract.
The solicitation must direct offerors to include in their response to
the solicitation a certification that the offeror will (if awarded the
contract) ensure that its covered facilities file Form Rs for the life
of the contract unless an exemption provided by the Executive Order
applies. This Notice includes guidance for compliance with E.O. 12969.
DATES: Federal Agencies are required to comply with the provisions of
Executive Order 12969, as interpreted by the guidance contained in this
Notice, by October 30, 1995.
FOR FURTHER INFORMATION CONTACT: Paul Schaffer, Mail Code 3802F, 401 M
St., SW., Washington, DC 20460, in EPA's Office of Acquisition
Management, 202-260-9032, for information with respect to contract
issues raised by today's guidance. For specific questions concerning
the Form R or reporting requirements (including applicability), contact
David Arthur, Mail Code 7408, 401 M St., SW., Washington, DC 20460,
Telephone: 202-260-2301, e-mail: [email protected], in EPA's
Office of Pollution Prevention and Toxic Substances. For general
information on section 313 of the Emergency Planning and Community
Right-to-Know Act (EPCRA) and section 6607 of the Pollution Prevention
Act (PPA), contact the Emergency Planning and Community Right-to-Know
Hotline, Environmental Protection Agency, Mail Code 5101, 401 M St.,
SW., Washington, DC 20460, Toll free: 1-800-535-0202 or 703-412-9877,
Toll free TDD: 1-800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
On August 8, 1995, President William J. Clinton signed Executive
Order (E.O.) 12969, entitled ``Federal Acquisition and Community Right-
to-Know'' (60 FR 40989; August 10, 1995). E.O. 12969 initiates a new
Federal procurement policy by stating that:
Sharing vital information [on release and management of toxic
chemicals] with the public has provided a strong incentive for
reduction in the generation, and, ultimately, release into the
environment, of toxic chemicals. . . .The efficiency of the Federal
Government is served when it purchases high quality supplies and
services that have been produced with a minimum impact on the public
health and environment of communities surrounding government
contractors. Savings associated with reduced raw materials usage,
reduced use of costly, inefficient end-of-pipeline pollution
controls, reduced liability and remediation costs from worker and
community claims all serve to increase the economic and efficient
provision of essential supplies and services to the government. . .
. .
Therefore, it is the policy of the executive branch in procuring
supplies and services that, to ensure the economical and efficient
procurement of Federal Government contracts, Federal agencies, to
the greatest extent practicable, shall contract with companies that
report in a public manner on toxic chemicals released to the
environment.
The Emergency Planning and Community Right-to-Know Act of 1986 (42
U.S.C. 11001-11050) (EPCRA) and the Pollution Prevention Act of 1990
(42 U.S.C. 13101-13109) (PPA) established programs to protect public
health and the environment by providing the public with important
information on the toxic chemicals being managed in waste streams or
released into the air, land, and water in their communities by
manufacturing facilities. The information required by section 313 of
EPCRA, 42 U.S.C. 11023, and section 6607 of PPA, 42 U.S.C. 13106, is
submitted annually to EPA and the States on a specific reporting form
(Form R) and compiled in the publicly available Toxics Release
Inventory (TRI).
To implement the procurement policy of E.O. 12969, each Federal
agency is required to include in competitive acquisition solicitations
for the award of contracts expected to exceed $100,000, the requirement
that Federal contractors ensure that covered facilities file a Form R
for covered activities for the life of the contract. In this regard,
the solicitation shall direct offerors on affected Federal contracts to
include in their response to the solicitation a certification that the
offeror (if awarded the contract) will ensure that its covered
facilities file a Form R for the life of the contract for covered
activities unless an exemption provided by E.O. 12969 applies. The
resulting contract also will contain a clause to this effect.
As described in Unit II. of this document, E.O. 12969 affects
Federal contractors and prospective Federal contractors, including
certain subcontractors, that own or operate facilities currently
required to report under EPCRA section 313 and PPA section 6607. It is
not intended to expand the types of facilities currently providing
information for the TRI. Rather, it is to ensure that these contractor
facilities report by making certification of such reporting a
requirement of solicitations and contracts with the Federal government.
Once the contract is awarded, failure to comply with the terms of the
certification, which will become a part of the contract, may result in
termination of the Federal contract or other appropriate action.
Unit II. provides a section-by-section analysis of and interpretive
guidance for E.O. 12969, and Unit III. provides a model solicitation
certification and contract clause that EPA recommends contracting
officers include in subject solicitations and contracts. Finally, Unit
IV. clarifies the relationship between the requirements of E.O. 12969
and the reporting requirements of EPCRA section 313 and PPA section
6607, and Unit V. discusses the inter-agency review process EPA used in
the development of this guidance.
II. Section-by-Section Analysis and Interpretive Guidance
In the following paragraphs, EPA provides guidance on certain
provisions of the E.O. EPA believes that those sections of the E.O. not
discussed herein are self-explanatory.
Section 2-201. ``All definitions found in EPCRA and PPA and
implementing regulations are incorporated into this order. . . .''
EPCRA sections 313 and 329 (42 U.S.C. 11023 and 11049) and PPA
section 6603 (42 U.S.C. 13102) define terms relevant to the reporting
requirements. The EPCRA implementing regulations codify these and other
definitions at 40 CFR parts 350 and 372. EPA's Toxic Chemical Release
Inventory Reporting Form R and Instructions document further clarifies
the statutory and regulatory definitions and is available from the
EPCRA Hotline (1-800-535-0202).
Section 2-202. ``Federal Agency means. . . .''
A ``Federal agency'' is equivalent to an ``executive agency'' as
defined in 5 U.S.C. 105. For purposes of E.O. 12969
[[Page 50739]]
and this guidance, military departments as defined in 5 U.S.C. 102, are
covered under the auspices of the Department of Defense.
Section 2-204. ``Toxic chemical means. . . .''
In passing EPCRA, Congress established a list of 320 chemicals and
chemical categories by combining the Maryland Chemical Inventory Report
List of Toxic or Hazardous Substances and the New Jersey Environmental
Hazardous Substance List. Recognizing that the chemical list should be
dynamic, Congress authorized EPA to add (or delete) a chemical or
category through rulemaking at any time if the chemical meets (or does
not meet) the statutory criteria listed in EPCRA section 313(d)(2). EPA
may undertake to add or delete a chemical on its own initiative, or
when petitioned by a State Governor or the public.
E.O. 12969 defines the universe of subject chemicals as those
chemicals on the list described in section 313(c) of EPCRA, as it
existed on the effective date of the E.O. Thus, E.O. 12969 could be
read to effectively ``freeze'' on August 8, 1995, the list of toxic
chemicals and chemical categories required to be reported by Federal
contractors' covered facilities. However, E.O. 12969 is not intended to
restrict EPA's authority under section 313(d) and (e) of EPCRA to add
or delete chemicals by rulemaking from the list of chemicals as it
existed on August 8, 1995. Consequently, EPA believes a reasonable
reading of the E.O. is to permit the list of subject toxic chemicals to
be modified to exclude those chemicals that are deleted and, similarly,
to include those chemicals that are added, by EPA rulemaking pursuant
to EPCRA section 313(d) and (e).
If E.O. 12969 were read to ``freeze'' the list of chemicals for
which the covered facilities of a Federal contractor must submit Form
Rs, those facilities would not be permitted to stop reporting for a
chemical that EPA, under the authority of EPCRA section 313(d) and (e),
deletes from the list on the ground that the chemical does not meet the
statutory criteria for listing. EPA does not believe that E.O. 12969 is
intended to result in such a situation.
In addition, if E.O. 12969 were read to ``freeze'' the list,
Federal contractors would not be required to certify that their subject
facilities will file the Form Rs for those chemicals that EPA adds to
the list of toxic chemicals subsequent to August 8, 1995. However, the
covered facilities of Federal contractors would nonetheless be required
to file Form Rs on these added chemicals to comply with their EPCRA
section 313 and PPA section 6607 reporting requirements. EPA believes
that all toxic chemicals and chemical categories that are currently on
or subsequently added to the list of toxic chemicals, based on the
statutory listing criteria, potentially can affect human health or the
environment. As such, EPA believes that certification by Federal
contractors for these chemicals and chemical categories is appropriate
and desirable because filing a Form R provides the public with
important information on these toxic chemicals.
Accordingly, EPA interprets E.O. 12969 as requiring Federal
agencies to require prospective Federal contractors (and first-tier
subcontractors as defined below) to provide a certification, such as
the model certification described below, for all toxic chemicals
currently listed or added to the EPCRA 313 list, until such time as EPA
deletes a toxic chemical through rulemaking, using the statutory
criteria of EPCRA section 313(d)(2).
Section 2-206. ``Federal contractor means. . . .''
For the purposes of E.O. 12969 and this guidance, a Federal
contractor is that entity that has submitted the successful bid or
proposal in response to a competitive acquisition solicitation, and
that has one or more facilities that will be used in the performance of
the contract located in any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
U.S. Virgin Islands, the Commonwealth of the Northern Mariana Islands,
and any other territory or possession over which the United States has
jurisdiction. A prospective Federal contractor (otherwise referred to
in this guidance as an ``offeror'') is the entity that submits a bid or
proposal in response to a competitive acquisition solicitation.
To the extent that an offeror or a Federal contractor has a
facility that will provide the supplies or services in the performance
of the contract but the facility is located outside of the above
identified areas, that facility is not affected by E.O. 12969. When an
offeror or Federal contractor is located outside the above identified
areas, but has facilities that will provide the supplies or services
that are located in the United States or its territories, the
facilities are covered under E.O. 12969. Therefore, the prospective
Federal contractor should be required to supply the certification for
such covered facilities. EPA believes it is appropriate that the
applicability of E.O. 12969 be determined based on where the
facility(ies) providing the supplies or services under contract are
located.
Also, EPA believes it appropriate and consistent with E.O. 12969 to
require Federal agencies to apply the provisions of the E.O. to a
first-tier subcontractor through the prime Federal contractor (i.e.,
first-tier subcontractors should certify to the prime contractor). For
purposes of E.O. 12969, a first-tier subcontractor is an entity that is
a supplier, distributor, vendor, or firm that furnishes supplies or
services directly to or for the prime Federal contractor. Both
prospective Federal prime contractors and first-tier subcontractors
would certify only for those facilities that will provide the supplies
or services in the performance of the contract. To the extent that a
prime contractor (or offeror) is not subject to the provisions of E.O.
12969, no prospective or actual subcontracts awarded under the prime
contract will be subject to the provisions of E.O. 12969.
EPA believes that the provisions of E.O. 12969 apply to offerors,
Federal contractors, and first-tier subcontractors that will be or are
providing commercial items under contract. Since passage of the Federal
Acquisition Streamlining Act of 1994 (Pub. L. 103-355), Federal
agencies have been working to streamline the acquisition of commercial
items, and EPA supports these efforts. In this regard, the final rule
for the acquisition of commercial items includes a contract clause (See
Federal Acquisition Regulations (FAR), 48 CFR 52.212-4, published
September 18, 1995; 60 FR 48206) which will be included in contracts
for commercial items:
(q) Other compliances. The Contractor shall comply will all
applicable Federal, State and local laws, executive orders, rules
and regulations applicable to its performance under this contract.
This language will be included in the contract by a new Standard
Form 1449--Solicitation/Contract Order for Commercial Items.
Because EPA interprets E.O. 12969 to apply to the acquisition of
commercial items, EPA believes that where the resulting contract
includes the clause 52.212-4, the contractor must comply with E.O.
12969. Therefore, in contracts for the acquisition of commercial items,
EPA does not believe that an additional solicitation certification or
contract clause is necessary to implement E.O. 12969. Thus,
solicitation certifications and contract clauses such as the models
presented in Unit III. of this document need not be included in
solicitations or Federal contracts for commercial items.
[[Page 50740]]
Section 3-301. ``Each Federal agency shall, to the maximum extent
practicable, include. . . .''
Each Federal agency, shall, to the maximum extent practicable,
include in competitive acquisition solicitations that will result in
the award of a contract expected to exceed $100,000 (including all
options), the certification described in sections 3-303 and 4-404 of
the E.O. relating to the requirement for the contractor's facilities to
file a Form R. If the contract is expected to exceed $100,000, the
prospective Federal contractor must complete the certification in order
to be eligible for the award of the contract.
EPA believes that the E.O. should be read to require the
prospective Federal contractor to certify in its response to the
solicitation that its covered facilities meeting the applicability
requirements detailed in EPCRA section 313 on the date of issuance of
E.O. 12969, will file (and continue to file for the life of the
contract) a Form R, for each toxic chemical manufactured, processed, or
otherwise used at each facility used in the performance of the
contract. Offerors who believe that all of the facilities that will be
used in the performance of the contract are currently exempt from the
reporting requirements of EPCRA section 313 and PPA section 6607 must
certify to this effect in its response to the solicitation and must
certify that, should such an exemption cease to apply for a subject
facility, they will timely file the appropriate Form R(s) during the
life of the contract.
The requirements for the certifications described above (and a
model of which is presented in Unit III.) should be included in all
competitive acquisition solicitations issued October 30, 1995 expected
to result in a contract with a Federal contractor exceeding $100,000,
including all options, and will be incorporated into the resultant
Federal contract by a contract clause.
The certification must be completed by the offeror on behalf of all
of its facilities that will provide supplies or services in the
performance of the Federal contract. Because offerors may own or
operate more than one facility, there may be situations where some of
its facilities are subject to the filing and reporting requirements of
the E.O. while others are exempt. In these cases, the offeror would not
be able to certify that it is exempt under paragraph (b) of the model
certification described below in Unit III. unless all of its facilities
that will provide supplies or services in the performance of the
contract meet at least one of the criteria for exemption in paragraph
(b) of the certification.
The certification requirement applies to all prime Federal
contracts and first-tier subcontracts for non-commercial supplies and
services where the contract or subcontract is expected to exceed
$100,000. The prime Federal contractor shall include in all competitive
solicitations and resulting subcontracts (for first-tier subcontracts)
for non-commercial items that are expected to exceed $100,000, a
certification and contract clause such as the models presented in Unit
III below. As stated previously, a separate contract clause and
certification are not required in contracts for the acquisition of
commercial items because these contracts will contain the clause set
forth in 48 CFR 52.212-4.
The certification requirement shall also apply to competitive
section 8(a) solicitations and contract awards expected to exceed
$100,000 (including all options) that are expected to exceed $100,000
which are under section 8(a) of the Small Business Act, 15 U.S.C.
637(a).
Section 3-302. ``The Federal contractors to the. . . .''
The certification requirement should apply only to those offerors
(prospective prime contractors and first-tier subcontractors) who own
or operate facilities to be used in performance of the proposed
contract having Standard Industrial Classification Code (SIC)
designations of major groups 20 through 39 as described in EPCRA
section 313(b)(1) as they existed on the date of issuance of E.O.
12969. SIC Code major group designations 20 through 39 represent the
manufacturing sector and include establishments engaged in the
mechanical or chemical transformation of materials or substances into
new products. These establishments are usually described as plants,
factories and mills. It is important to note that assembly plants also
are normally included within major groups 20 through 39.
Section 3-303. ``Each Federal agency shall find that. . .''
The reporting requirements of E.O. 12969 are not applicable to a
facility within a SIC code major group designation 20 through 39, if
any of the criteria in clauses (a) through (c) of section 3-303 apply
to the facility. Accordingly, if a prospective Federal contractor can
certify that each of its covered facilities that will be used in the
performance of the contract meets at least one of the criteria in
clauses (a) through (c), none of the contractor's facilities would be
required to submit data pursuant to E.O. 12969 and the offeror can
certify to this effect. However, the Federal contractor would notify
the contracting officer if circumstances change such that, for example,
a covered facility supporting the contract is no longer exempt. The
solicitation and contract should reflect this requirement and the
requirement that the Federal contractor then ensure that its covered
facility(ies) supporting the contract file the information required by
E.O. 12969.
Persons who are unsure of the applicability of these criteria
should review the implementing regulations found at 40 CFR part 372, as
well as EPA's ``Toxic Chemical Release Inventory Reporting Form R and
Instructions'' (Revised 1994 Version, EPA 745k-95-051).
On November 30, 1994 (59 FR 61448), EPA issued a final rule
establishing an alternate threshold under the authority of EPCRA
section 313(f)(2) (40 CFR part 372). Starting with the 1995 reporting
year, facilities that exceed the manufacture, process, or otherwise use
threshold established under EPCRA section 313(f)(1) do not have to file
a Form R if the facility manufactures, processes, or uses 1 million
pounds or less per year of the toxic chemical and the facility
estimates that its total reportable amount of the toxic chemical in
waste streams is 500 pounds or less. (The total reportable amount of
the toxic chemical in waste streams includes the quantity released to
the environment; the quantity recycled, combusted for energy recovery,
treated or disposed on-site; and the quantity transferred off-site for
recycling, combustion for energy recovery, treatment, disposal or other
release.) Facilities meeting the alternate threshold criteria are able
to submit a much shorter form to EPA indicating that the facility met
the requirements of the alternate threshold.
Because the alternate threshold of 1 million pounds was established
under the authority of EPCRA section 313(f)(2), a prospective Federal
contractor with facilities that use the alternate threshold should
certify consistent with section 3303(c), that is, the reporting
thresholds established under EPCRA section 313(f) have not been met.
Section 3-304. ``Each Federal agency shall require. . . .''
See section 2-204.
Section 3-305. ``Each Federal agency may amend. . . .''
This provision is self-explanatory. The decision to amend existing
contracts rests solely with each Federal agency.
[[Page 50741]]
Section 3-306. ``Consistent with Title IV of the Federal Acquisition
Streamlining Act of 1994 (FASA). . . .''
Title IV of the Federal Acquisition Streamlining Act (FASA) raised
the simplified acquisition threshold to $100,000 (i.e., contracts for
the purchase of goods and services that have an anticipated value
greater than $2,500 but not greater than $100,000 are subject to
simplified acquisition procedures). To be consistent with FASA, EPA
believes that only competitive acquisition solicitations that are
expected to result in a contract exceeding $100,000, including options,
should include the certifications required by E.O. 12969 (the
certification should also be incorporated into the resultant contract).
Section 4-401. ``Not later than September 30, 1995, the EPA shall
publish. . . .''
The publication of today's Notice satisfies the requirement of this
section.
Section 4-402. ``Within 30 days of the issuance of the guidance. . .
.''
All Federal agencies must comply with the provisions of the E.O by
October 30, 1995, and the E.O. requires that these provisions be
implemented and incorporated into the Federal Acquisition Regulations
(FAR). The FAR Secretariat has assigned the effort to amend the FAR
pursuant to E.O. 12969 as FAR Case 95-305.
Once FAR Case 95-305 is published as an interim final rule, Federal
agencies, offerors, and Federal contractors must follow those
regulations. In the event that FAR Case 95-305 is not published as an
interim rule by October 30, 1995, EPA is providing this Notice,
including a model certification and contract clause, to assist Federal
agencies in their compliance efforts. Pending implementation in the
FAR, EPA encourages certifications such as this model to be included in
all competitive solicitations (and resultant contracts) expected to
result in a contract exceeding $100,000 that are issued on or after 30
days following publication of this guidance in the Federal Register in
order to comply with E.O. 12969.
Section 4-403. ``For all contracts expected to exceed $500,000. . . .''
E.O. 12969 requires compliance by Federal agencies ``to the
greatest extent practical''; however, it makes clear that
impracticability determinations should not be made lightly. Because the
facilities of offerors likely to be affected by E.O. 12969 already have
an obligation to report under EPCRA section 313 and PPA section 6607,
it is difficult to foresee instances when it would be impracticable for
a Federal agency to include a TRI certification requirement as an
eligibility criterion in its affected solicitations.
However, E.O. 12969 does recognize that there are or may be
unforeseen circumstances that would make compliance untenable. For
smaller affected contracts (those not expected to exceed $500,000,
including options), the contracting agency should make impracticability
determinations, for either an individual or class of contracts,
weighing the reasons for believing that inclusion of the certification
is impracticable for a particular solicitation against the compelling
reasons for E.O. 12969. Where appropriate, agencies should consider
modifications to the solicitation that would then make inclusion of the
certification acceptable.
For larger contracts (those expected to exceed $500,000, including
options), E.O. 12969 imposes a consultation requirement on the
contracting agency before a final impracticability determination can be
made. Each Federal agency shall notify and consult with the Director of
the Environmental Assistance Division within EPA's Office of Pollution
Prevention and Toxic Substances (Mail Code 7408, 401 M St., SW.,
Washington, DC 20460) when the agency believes it is not practicable to
include the certification requirement in the solicitation. This
consultation should occur before the Agency's final determination on
inclusion of the certification in the solicitation. EPA will continue
to work with other agenices to reduce any burden associated with this
consultative process.
A Federal agency's determination that including the certification
requirement in a solicitation is impracticable does not in any manner
waive the Federal contractor facility's responsibility to comply with
the reporting provisions of EPCRA and the PPA.
Section 4-404. ``Each Federal agency shall require. . .''
For a discussion of the certification requirements, see the
discussion for sections 3-301 through 3-303 above. It is important to
note that on or before July 1 of each year is the deadline for
submitting EPCRA and PPA data for the previous calendar year. For
example, Form Rs submitted on or before July 1, 1996, cover the period
January 1, 1995 through December 31, 1995. E.O. 12969 requires offerors
to certify that their subject facilities will file the necessary Form
Rs, including all information required under EPCRA and PPA, on or
before the next July 1 after the date on which a contract is awarded.
Currently, contractor facilities affected by this E.O. are already
submitting reports because of their obligations under EPCRA section 313
and PPA section 6607. This may not always be the case. Therefore, EPA
strongly encourages appropriate personnel at any facility owned or
operated by a potential Federal contractor to maintain the information
necessary to complete and submit Form Rs for the toxic chemicals
reportable under E.O. 12969 for the previous calendar year. This will
greatly ease compliance with section 4-404(b) of the E.O. should the
contractor obtain a contract with the Federal Government.
Section 4-405. ``Information submitted to the EPA. . . .''
Information submitted to EPA pursuant to E.O. 12969 is subject to
the trade secret protections provided by EPCRA section 322, 42 U.S.C.
11042. EPCRA section 322 allows an owner or operator to withhold only
``the specific chemical identity (including chemical name and other
specific identification)'' from TRI reports.
Regulations implementing the trade secret provisions of EPCRA
section 322 are codified at 40 CFR part 350. Under the provisions of 40
CFR part 350, EPA reviews the validity of a trade secret claim if the
Agency receives a public request for disclosure of information claimed
as chemical identity, or at any time if ``EPA desires to determine
whether chemical identity information claimed as trade secret is
entitled to trade secret treatment, even though no request for release
of the information has been received.'' In practice, EPA routinely
reviews all trade secret claims relating to TRI reports.
Under the authority of E.O. 12969, EPA will review all claims for
trade secret protection submitted by Federal contractors. If EPA
determines that the contractor's claim of trade secrecy is invalid
(following the review, appeals, and notification processes described in
40 CFR part 350), EPA will make the Form R available to the public and
will include the information in the TRI data base.
Section 4-406. ``When the Administrator determines. . . .''
If EPA determines that a Federal contractor (or first-tier
subcontractor) has inaccurately, incompletely, or falsely certified as
to its covered facility's compliance with the E.O. or that a Federal
contractor's (or subcontractor's) covered facility has deliberately not
filed the Form R or deliberately filed incomplete information, EPA may
recommend to the head of the contracting agency a termination of the
affected contract for the convenience of the Government or
[[Page 50742]]
other appropriate action (for subcontractors, EPA may recommend to the
prime contractor that it consider a termination of the subcontract for
convenience or other appropriate action). Although a Contracting
Officer is not obligated to actually determine compliance or non-
compliance with the requirements of the E.O., that individual should
forward to EPA any information it receives regarding non-compliance.
Section 4-408. ``Upon request and to the extent practicable, the
Administrator shall provide technical advice. . . .''
This provision is self-explanatory. However, see the ``FOR FURTHER
INFORMATION CONTACT'' unit of this Notice for names and addresses of
EPA contacts.
Section 5-502. ``This Order is not intended, and should not be
construed, to create any right or benefit. . . .''
Executive Order 12969 does not create additional rights or benefits
for private parties and does not allow for private rights of action to
ensure agency compliance. While E.O. 12969 provides other mechanisms
for compliance, the right to sue a Federal agency for failure to
appropriately include the certifications required by E.O. 12969 in
contract solicitations is not one of them. However, E.O. 12969 in no
manner undermines any opportunity provided by EPCRA or PPA to bring an
action against a Federal contractor or its facilities and
subcontractors otherwise required to report for failure to comply with
the reporting requirements of EPCRA section 313 or PPA section 6607.
Section 5-503. ``This order shall be effective immediately. . . .''
Although E.O. 12969 is effective immediately (i.e., August 8,
1995), Federal agencies are not required by the E.O. to include a
certification statement implementing the E.O. in affected solicitations
until October 30, 1995.
III. Model Solicitation Certification and Contract Clause
Models of the solicitation certification and the contract clause
required by E.O. 12969 are presented below. The FAR Secretariat has
assigned the effort to amend the FAR pursuant to E.O. 12969 as FAR Case
95-305. Until the FAR Case is published as an interim rule in the
Federal Register, EPA encourages Federal agencies to include, pursuant
to E.O. 12969, the model solicitation and contract clause discussed
herein in all competitive solicitations (and resultant contracts)
expected to result in a contract exceeding $100,000 that are issued on
or after 30 days following publication of this guidance in the Federal
Register.
Instructions for Use of the Model Certification and Contract
Clause:
For competitive solicitations for the acquisition of noncommerical
items issued on or after October 30, 1995 that are expected to result
in the award of a contract exceeding $100,000, including all options,
EPA encourages Federal agencies to include in the solicitation the
certification (or the substantial equivalent) as shown below. In
addition, each Federal agency is encouraged to include in the resultant
contract the contract clause shown below or the substantial equivalent.
Model Certification of Filing Toxic Chemical Release Inventory
Reporting Form (Form R).
Prescription for the Provision:
The Contracting Officer should insert the following provision in
all competitive solicitations for non-commercial items (including
competitive 8(a) solicitations) where the resultant contract is
expected to exceed $100,000, including all options.
Certification of Filing Toxic Chemical Release Inventory Reporting Form
(Form R)
The following certification shall be completed by the offeror, who
certifies for all of its covered facilities that will be used in the
performance of this proposed contract. Under EPCRA section 313 and PPA
section 6607, each facility within Standard Industrial Classification
Code designation of major groups 20-39 as in effect on July 1, 1985
(and currently codified at 48 CFR 19.102) meeting the reporting
requirements files a Form R. If none of the offeror's facilities that
will be used in the performance of this proposed contract currently are
subject to the Form R reporting requirements because they are not with
Standard Industrial Classification (SIC) code designations of major
groups 20-39 (as in effect on July 1, 1985), the offeror should check
box (e). This would complete the offeror's certification requirements.
Further, if all of the offeror's facilities that will be used in the
performance of this proposed contract meet at least one of the criteria
in paragraph (b) below, the offeror should check the appropriate box
under (b) to certify to that effect. This also would complete the
offeror's certification requirements. For offerors with more than one
facility, however, there may be situations where some of its facilities
are subject to the Form R filing and reporting requirements and others
are exempt. In these cases, the offeror cannot certify that it is
exempt under paragraph (b) below unless all of its covered facilities
meet at least one of the criteria in paragraph (b) of the
certification.
(a) The Offeror, by signing this offer, expressly certifies and
agrees that:
If awarded a Contract resulting from this solicitation, its covered
facilities that will be used in the performance of this proposed
contract will file (and continue to file for the life of the contract),
unless otherwise exempt as stated below in paragraph (b)(1)-(3), a
Toxic Chemical Release Inventory Form (Form R) as described in sections
313(a) and (g) of EPCRA, 42 U.S.C. 11023(a) and (g) and section 6607 of
PPA, 42 U.S.C. 13106, for each toxic chemical manufactured, processed,
or otherwise used by the offeror at a facility as described in section
313 of EPCRA, 42 U.S.C. 11023, and section 6607 of PPA, 42 U.S.C.
13106. The offeror further agrees and certifies that during the period
of performance of this proposed contract, its covered facilities that
will be used in the performance of this proposed contract will file a
Form R annually on or before July 1 (for the prior calendar year) with
the United States Environmental Protection Agency and each appropriate
State pursuant to section 313(a) and (g) of EPCRA; or
(b) To the best of its knowledge and belief, none of its covered
facilities that will be used in the performance of this proposed
contract are currently subject to the filing and reporting requirements
set forth in paragraph (a) above because such facilities (the offeror
must check all of the appropriate boxes):
[ ] (1) Do not manufacture, process or otherwise use any toxic
chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023 (c); or
[ ] (2) Do not have 10 or more full-time employees as specified in
section 313(b)(1)(A) of EPCRA, 42 U.S.C.11023(b)(1)(A); or
[ ] (3) Do not exceed the reporting thresholds, including the
alternative threshold established in 40 CFR 372.27, of toxic chemicals
established under EPCRA, 42 U.S.C. 11023(f).
(c) If awarded a Contract resulting from this solicitation, and
circumstances change during the life of the Contract such that, for
example, any of its facilities that will be used in the performance of
this proposed contract become subject to E.O. 12969 because none of the
exemptions in paragraph (b) above any longer apply (or it no longer is
subject to E.O. 12969 reporting and filing requirements) it will
provide written notice to the Contracting Officer, and if required, its
facility(ies) to be used in the performance of this proposed contract
will file and continue to file for the life of the contract a Form R as
described in paragraph (a).
(d) If awarded a Contract resulting from this solicitation, it
shall include a
[[Page 50743]]
certification substantially the same as this certification in every
competitive solicitation for a first tier subcontract expected to be
greater than $100,000 where the subcontract is not for ``commercial
items'' as that term is defined in Part 2 of the FAR.
[ ] (e) It does not own or operate any facilities that will be
used in the performance of this proposed contract having Standard
Industrial Classification Code designations of major groups 20 through
39 as identified on July 1, 1985, (and currently contained in FAR
section 19.102) consistent with EPCRA section 313(b)(1). If, however,
the offeror is awarded the contract, and the status of any of its
facilities used in the performance of this contract changes during the
life of the contract, it will provide written notice to the Contracting
Officer, and if required, complete this certification. Further, the
offeror will include a certification substantially the same as this
certification in all competitive solicitations for first-tier
subcontracts for noncommercial items expected to exceed $100,000.
(f) This certification concerns a matter within the jurisdiction of
an agency of the United States and that making a false, fictitious, or
fraudulent certification may result in criminal prosecution under Title
18, United States Code, Section 1001, and/or administrative action
under the Program Fraud Civil Remedies Act, Title 31, United States
Code, Sections 3801-3812. Accordingly, the offeror expressly certifies
the truthfulness and accuracy of the contents of this certification.
(End of Provision)
The information provided on the Toxic Chemical Release Form filed
with EPA shall be subject to the trade secret protection provided by
section 322 of EPCRA, 42 U.S.C. 11042. Information that is not trade
secret shall be made available to the public pursuant to sections
313(h) and (j) of EPCRA.
Model Toxic Chemical Release Reporting Requirements Clause
Prescription for clause: The Contracting Officer shall include this
clause in all competitively awarded contracts for noncommercial items
(including competitive 8(a) awards) in excess of $100,000 (including
all options).
Toxic Chemical Release Invnetory Reporting
(a) As used in this clause, ``Toxic Chemical Release Inventory
Reporting,'' the Emergency Planning and Community Right to Know Act of
1986 (42 U.S.C. 11001-11050) (EPCRA) and the Pollution Prevention Act
of 1990 (42 U.S.C. 13101-13109) (PPA), established programs to protect
public health and the environment. Under these Acts, certain businesses
are required to submit reports each year on the amounts of toxic
chemicals their facilities release into the environment.
(b) The contractor shall comply, during the life of the contract,
with the certification in the solicitation entitled, ``Certification of
Filing Toxic Chemical Release Inventory Reporting Form (Form R),''
which is expressly incorporated into the contract by reference.
(c) First tier subcontractors.--The Contractor shall include a
certification substantially the same as the certification identified in
paragraph (b) above in competitive solicitations for first tier
subcontracts where the resulting subcontract award is expected to be
greater than $100,000 and is not for ``commercial items'' as that term
is defined in Part 2 of the Federal Acquisition Regulation. Also, the
Contractor shall insert in all such first tier subcontracts a clause
substantially the same as this clause without this paragraph (c).
(d) Remedies.--If the Contractor inaccurately, incompletely or
falsely certified as to a facility's compliance with the reporting
requirements of EPCRA section 313 and PPA section 6607, or if any of
the Contractor's facilities has deliberately not filed a Toxic Chemical
Release Form, or deliberately not submitted complete information, the
Contracting Officer may terminate the Contract for convenience or take
other appropriate action.
(End of Clause)
IV. Relationship Between E.O. 12969 and EPCRA/PPA Reporting
Requirements
Nothing in E.O. 12969 or this guidance replaces or obviates the
obligation of a facility owner or operator to comply with the reporting
and recordkeeping requirements of EPCRA section 313, PPA section 6607,
and EPA's implementing regulations at 40 CFR part 372. Although E.O.
12969 establishes a $100,000 applicability threshold, it is important
for the regulated community to recognize that no such threshold exists
with respect to the reporting or recordkeeping requirements of EPCRA
section 313 or PPA section 6607.
V. Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this is a ``significant regulatory
action,'' because this Guidance may raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in the Executive Order. This Guidance was
submitted to OMB for review under the Executive Order. In addition, EPA
distributed a draft guidance to other agencies for their review and
comment. Any changes made during OMB review have been documented in the
public record.
List of Subjects
Environmental protection and Community right-to-know.
Dated: September 25, 1995.
Carol M. Browner,
Administrator.
[FR Doc. 95-24214 Filed 9-28-95; 8:45 am]
BILLING CODE 6560-50-F