[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]]

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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.


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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