[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Rules and Regulations]
[Pages 55306-55308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26943]




[[Page 55305]]

_______________________________________________________________________

Part II

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Parts 23 and 52



Federal Acquisition Regulation; Federal Acquisition and Community 
Right-to-Know; Interim Rule

  Federal Register / Vol. 60, No. 209 / Monday, October 30, 1995 / 
Rules and Regulations  

[[Page 55306]]


DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 23 and 52

[FAC 90-34; FAR Case 95-305]
RIN 9000-AG68


Federal Acquisition Regulation; Federal Acquisition and Community 
Right-to-Know

AGENCY: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comment.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed to an interim rule amending 
the Federal Acquisition Regulation (FAR) Parts 23 and 52 to implement 
Executive Order 12969. The Executive Order establishes the policy that 
contracting agencies contract with companies that report in a public 
manner on toxic chemicals released to the environment. The interim rule 
provides a solicitation provision which requires certification of 
compliance with 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), and a contract clause which 
incorporates the reporting requirements of EPCRA and PPA into Federal 
Government contracts.
    This regulatory action is subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993.

DATES: Effective Date: October 30, 1995.
    Comment Date: Comments on the interim rule should be submitted in 
writing to the FAR Secretariat at the address shown below on or before 
December 29, 1995, to be considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS), 18th and F 
Streets NW., Room 4035, Attn: Ms. Beverly Fayson, Washington, DC 20405.
    Please cite FAC 90-34, FAR case 95-305 in all correspondence 
related to this case.

FOR FURTHER INFORMATION CONTACT:
Mr. Ralph De Stefano at (202) 501-1758 in reference to this FAR case. 
For general information, contact the FAR Secretariat, Room 4037, GS 
Building, Washington, DC 20405, (202) 501-4755. Please cite FAC 90-34, 
FAR case 95-305.

SUPPLEMENTARY INFORMATION:

A. Background

    The addition of FAR Subpart 23.9 and its associated solicitation 
provision and contract clause implement the requirements of Executive 
Order (E.O.) 12969 of August 8, 1995 (60 FR 40989, August 10, 1995), 
``Federal Acquisition and Community Right-to-Know,'' and the 
Environmental Protection Agency's ``Guidance Implementing Executive 
Order 12969; Federal Acquisition; Community Right-to-Know; Toxic 
Chemical Release Reporting'' (60 FR 50738, September 29, 1995). This 
interim rule requires offerors in competitive acquisitions over 
$100,000 (including options) to certify that they will comply with 
applicable toxic chemical release reporting requirements of the 
Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. 
11001-11050) and the Pollution Prevention Act of 1990 (42 U.S.C. 13101-
13109). This rule does not apply to acquisitions of commercial items 
under FAR Part 12 or contractor facilities located outside the United 
States. This rule does not apply to subcontractors beyond the first 
tier.

B. Regulatory Flexibility Act

    The interim 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 the rule 
only applies to competitive acquisitions exceeding $100,000 (including 
options) in value, and will only impact those companies that do not 
comply with existing laws regarding reporting of toxic chemical 
release. Also, the rule does not apply to acquisitions of commercial 
items under FAR Part 12 or contractor facilities located outside the 
United States. 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. Such comments must be submitted separately and cite 5 U.S.C. 601, 
et seq. (FAC 90-34, FAR Case 95-305), in correspondence.

C. Paperwork Reduction Act

    Under the emergency processing provisions of the Paperwork 
Reduction Act of 1995 (Public law 104-13), the Federal Acquisition 
Regulation (FAR) Secretariat has requested and obtained approval (OMS 
Control No. 9000-0139) from the Office of Management and Budget (OMB) 
for a new collection of information requirement under Executive Order 
(O.E.) 12969 of August 8, 1995, Federal Acquisition and Community 
Right-to-Know.

DATES: Comments may be submitted on or before December 29, 1995.

ADDRESSES: Send comments to Mr. Peter Weiss, FAR Desk Officer, OMB, 
Room 10102, NEOB, Washington, DC 20503, and a copy to the FAR 
Secretariat at the address listed below for comments on the information 
collection requirement.

Annual Reporting Burden

    Public reporting burden for this collection of information is 
estimated to average 0.50 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing this burden, to General Services 
Administration, FAR Secretariat, 18th and F Streets, NW., Room 4037, 
Washington, DC 20405, and to the FAR Desk Officer, Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503.
    The annual reporting burden is estimated to be $3,517,248 as a 
result of the following estimated number of hours of labor for 
compliance: Respondents, 167,487; responses per respondent, 1; total 
annual responses, 167,487; preparation hours per response, 0.50; and 
total response burden hours, 83,744.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DOD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that compelling reasons exist to promulgate this interim rule 
without prior opportunity for public comment. This action is necessary 
because Executive Order 12969 requires incorporation of its policies 
into the FAR by November 6, 1995. However, pursuant to Public Law 98-
577 and FAR 1.501, public comments received in response to this interim 
rule will be considered in the formation of the final rule .

List of Subjects in 48 CFR Parts 23 and 52

    Government procurement.


[[Page 55307]]

    Dated: October 26, 1995.
Ida M. Ustad,
Associate Administrator, Office of Acquisition Policy.

Federal Acquisition Circular

Number 90-34

    Federal Acquisition Circular (FAC) 90-34 is issued under the 
authority of the Secretary of Defense, the Administrator of General 
Services, and the Administrator for the National Aeronautics and Space 
Administration.
    Unless otherwise specified, all Federal Acquisition Regulation 
(FAR) and other directive material contained in FAC 90-34 is effective 
October 30, 1995.

    Dated: October 25, 1995.
Eleanor R. Spector,
Director, Defense Procurement.

    Dated: October 26, 1995.
Ida M. Ustad,
Associate Administrator, Office of Acquisition Policy.

    Dated: October 25, 1995.
Deidre Lee,
Associate Administrator for Procurement, NASA.

    Therefore, 48 CFR parts 23 and 52 are amended as set forth below:

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

    1. The authority citation for 48 CFR parts 23 and 52 continued to 
read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Subpart 23.9, consisting of sections 23.901 through 23.907, is 
added to read as follows:

Subpart 23.9--Toxic Chemical Release Reporting

Sec.
23.901  Purpose.
23.902  General.
23.903  Applicability.
23.904  Definition.
23.905  Policy.
23.906  Requirements.
23.907  Solicitation provision and contract clause.


23.901  Purpose.

    This subpart implements the requirements of Executive Order (E.O.) 
12969 of August 8, 1995, Federal Acquisition and Community Right-to-
Know.


23.902  General.

    The Emergency Planning and Community Right-to-Know Act of 1986 
(EPCRA) and the Pollution Prevention Act of 1990 (PPA) established 
programs to protect public health and the environment by providing the 
public with important information on the toxic chemicals being released 
by manufacturing facilities into the air, land and water in its 
communities.
    Under the EPCRA, section 313 (42 U.S.C. 11023), and the PPA, 
section 6607 (42 U.S.C. 13106), manufacturers are required to submit 
annual reports on toxic chemical releases and waste management 
activities to the Environmental Protection Agency (EPA) and the States.


23.903  Applicability.

    (a) This subpart applies to all competitive contracts expected to 
exceed $100,000 (including all options) and competitive 8(a) contracts.
    (b) This subpart does not apply to--
    (1) Acquisitions of commercial items under FAR part 12; or
    (2) Contractor facilities located outside the United States. (The 
United States, as used in this subpart, includes any State of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, Guam, American Samoa, the United States Virgin Islands, the 
Northern Mariana Islands, and any other territory or possession over 
which the United States has jurisdiction.)


23.904  Definition.

    Toxic chemicals means reportable chemicals currently listed and 
added pursuant to EPCRA sections 313 (c), (d), and (e), except for 
those chemicals deleted by EPA using the statutory criteria of EPCRA, 
sections 313 (d) and (e).


23.905  Policy.

    (a) It is the policy of the Government to purchase supplies and 
services that have been produced with a minimum adverse impact on 
community health and the environment.
    (b) Federal agencies, to the greatest extent practicable, shall 
contract with companies that report in a public manner on toxic 
chemicals released to the environment.


23.906  Requirements.

    (a) E.O. 12969 requires that solicitations for competitive 
contracts expected to exceed $100,000 include, to the maximum extent 
practicable, as an award eligibility criterion, a certification by the 
offeror that either--
    (1) If awarded a contract, facilities it owns or operates to be 
used in the performance of the contract will file, and will continue to 
file throughout the life of the contract, a Toxic Chemical Release 
Inventory Form (Form R) as described in EPCRA sections 313 (a) and (g) 
and the PPA section 6607; or
    (2) Such facilities are otherwise exempt from the filing and 
reporting requirements.
    (b) A determination that it is not practicable to include the 
solicitation provision at FAR 52.223-13, Certification of Toxic 
Chemical Release Reporting, in a solicitation or class of solicitations 
shall be approved by a procurement official at a level no lower than 
the head of the contracting activity. Prior to making such a 
determination for a solicitation or class of solicitations with an 
estimated value in excess of $500,000 (including all options), the 
agency shall consult with EPA.
    (c) Award shall not be made to offerors who do not certify in 
accordance with paragraph (a) of this section when the provision at FAR 
52.223-13, Certification of Toxic Chemical Release Reporting, is 
included in the solicitation.
    (d) The contracting officer shall cooperate with EPA 
representatives and provide such advice and assistance as may be 
required to aid EPA in the performance of its responsibilities under 
E.O. 12969.
    (e) EPA, upon determining that a contractor is not filing the 
necessary forms or is filing incomplete information, may recommend to 
the head of the contracting activity that the contract be terminated 
for convenience. The head of the contracting activity shall consider 
the EPA recommendation and determine if termination or some other 
action is appropriate.


23.907  Solicitation provision and contract clause.

    Except for acquisitions of commercial items made under part 12, the 
contracting officer shall:
    (a) Insert the provision at 52.223-13, Certification of Toxic 
Chemical Release Reporting, in all solicitations for competitive 
contracts expected to exceed $100,000 (including all options) and 
competitive 8(a) contracts, unless it has been determined that it is 
not practicable in accordance with 23.906(b); and
    (b) When the solicitation contains the provision at 52.223-13, 
Certification of Toxic Chemical Release Reporting, insert the clause at 
52.223-14, Toxic Chemical Release Reporting, in the resulting contract, 
if the contract is expected to exceed $100,000 (including all options).

[[Page 55308]]


PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. Sections 52.223-13 and 52.223-14 are added to read as follows:


52.223-13  Certification of Toxic Chemical Release Reporting.

    As prescribed in 23.907(a), insert the following provision:

CERTIFICATION OF TOXIC CHEMICAL RELEASE REPORTING (OCT 1995)

    (a) The offeror, by signing this offer, certifies that--

    (Note: The offeror must check the appropriate box(es).)

    {time}  (1) To the best of its knowledge and belief, it is not 
subject to the filing and reporting requirements described in 
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) 
sections 313(a) and (g) and Pollution Prevention Act of 1990 (PPA) 
section 6607 because none of its owned or operated facilities to be 
used in the performance of this contract currently--
    {time}  (i) Manufacture, process or otherwise use any toxic 
chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c).
    {time}  (ii) 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).
    {time}  (iii) Meet the reporting thresholds of toxic chemicals 
established under section 313(f) of EPCRA, 42 U.S.C. 11023(f) 
(including the alternate thresholds at 40 CFR 372.27, provided an 
appropriate certification form has been filed with EPA).
    {time}  (iv) Fall within Standard Industrial Classification Code 
(SIC) designations 20 through 39 as set forth in FAR section 19.102.
    {time}  (2) If awarded a contract resulting from this 
solicitation, its owned or operated facilities to be used in the 
performance of this contract, unless otherwise exempt, will file and 
continue to file for the life of the contract the Toxic Chemical 
Release Inventory Form (Form R) as described in EPCRA sections 
313(a) and (g) and PPA section 6607 (42 U.S.C. 13106).
    (b)  Submission of this certification is a prerequisite for 
making or entering into this contract imposed by Executive Order 
12969, August 8, 1995 (60 FR 40989-40992).

(End of provision)


52.223-14  Toxic Chemical Release Reporting.

    As prescribed in 23.907(b), insert the following clause:

TOXIC CHEMICAL RELEASE REPORTING (OCT 1995)

    (a) Unless otherwise exempt, the Contractor owned or operated 
facilities used in the performance of this contract shall file by 
July 1 for the prior calendar year an annual Toxic Chemical Release 
Inventory Form (Form R) as described in sections 313 (a) and (g) of 
the Emergency Planning and Community Right-to-Know Act of 1986 
(EPCRA) (42 U.S.C. 11023 (a) and (g)), and section 6607 of the 
Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13106). Such 
Contractor facilities shall file the annual Form R throughout the 
life of the contract.
    (b) A Contractor is exempt from the requirement to file an 
annual Form R if none of the Contractor owned or operated facilities 
used in the performance of this contract--
    (1) Manufacture, process or otherwise use any toxic chemicals 
listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c);
    (2) 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);
    (3) Meet the reporting thresholds of toxic chemicals established 
under section 313(f) of EPCRA (including the alternate thresholds at 
40 CFR 372.27, provided an appropriate certification form has been 
filed with EPA); or
    (4) Fall within Standard Industrial Classification Code (SIC) 
designations 20 through 39 as set forth in FAR 19.102.
    (c) If the Contractor has certified to be exempt in accordance 
with one or more of the criteria in paragraph (b) of this clause, 
and after award of the contract circumstances change so that any one 
of its owned or operated facilities used in the performance of this 
contract is no longer exempt--
    (1) The Contractor shall notify the Contracting Officer; and
    (2) The Contractor owned and operated facilities used in the 
performance of this contract, unless otherwise exempt, shall (i) 
submit a Toxic Chemical Release Inventory Form (Form R) on or before 
July 1 for the prior calendar year during which the Contractor 
becomes eligible; and (ii) continue to file the annual Form R for 
the life of the contract.
    (d) The Contracting Officer may terminate this contract or take 
other action as appropriate, if the Contractor fails to comply 
accurately and fully with the EPCRA and PPA toxic chemical release 
filing and reporting requirements.
    (e) Except for acquisitions of commercial items, as defined in 
FAR Part 12, the Contractor shall--
    (1) For competitive subcontracts expected to exceed $100,000 
(including all options), include a solicitation provision 
substantially the same as the provision at FAR 52.223-13, 
Certification of Toxic Chemical Release Reporting; and
    (2) Include in any resultant subcontract exceeding $100,000 
(including all options), with subcontractors having SIC designations 
of major groups 20 through 39 as set forth in FAR 19.102, the 
substance of this clause, except this paragraph (e).

(End of clause)

[FR Doc. 95-26943 Filed 10-27-95; 8:45 am]
BILLING CODE 6820-EP-M