[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41473-41475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20191]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 23 and 52
[FAC 90-41; FAR Case 95-305; Item III]
RIN 9000-AG68
Federal Acquisition Regulation; Federal Acquisition and Community
Right-to-Know
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) Parts 23 and 52 to implement
Executive Order 12969. The Executive order requires that Federal agency
contractors report in a public manner on toxic chemicals released to
the environment. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: October 7, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano 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 90-41, FAR case 95-305.
SUPPLEMENTARY INFORMATION:
A. Background-
An interim rule with request for public comment was published on
October 30, 1995 (60 FR 55306). Thirty-four comments were received from
eight respondents. As a result of analyzing the public comments, the
rule was revised to clarify that the owner or operator of a facility
that is subject to the Emergency Planning and Community Right-to-Know
Act of 1986 (EPCRA) and the Pollution Prevention Act (PPA) reporting
requirements is required to file Toxic Chemical Release Inventory Forms
with the Environmental Protection Agency, and that offerors will submit
certifications regarding only those facilities that the offeror owns or
operates that will be used in performing the contract. This final rule
also
[[Page 41474]]
simplifies the language of the certification at FAR 52.223-13.
B. Regulatory Flexibility Act-
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. The rule requires only that
offerors in competitive acquisitions exceeding $100,000 in value agree
to comply with, or identify the basis for their exemption from,
existing EPCRA and PPA reporting requirements. There were no public
comments in response to the Regulatory Flexibility Statement published
with the interim rule. The rule does not apply to acquisitions of
commercial items or to contractor facilities located outside the United
States.
C. Paperwork Reduction Act-
The final rule imposes no new information collection requirements
that require approval of the Office of Management and Budget (OMB)
under 44 U.S.C. 3501, et seq. The information collection requirements
imposed by the interim rule have been approved by OMB under OMB
Clearance Number 9000-0139 through September 30, 1996.
List of Subjects in 48 CFR Parts 23 and 52-
Government procurement.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
-Therefore, 48 CFR Parts 23 and 52 are amended as set forth
below:-
1. The authority citation for 48 CFR Parts 23 and 52 continues to
read as follows:
-Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE-
2. Section 23.901 is amended by adding a parenthetical at the end
to read as follows:
23.901 Purpose.-
* * * (See also EPA Notice, ``Guidance Implementing Executive Order
12969'' (60 FR 50738, September 29, 1995).)
23.902 [Amended]-
3. Section 23.902 is amended by redesignating the first sentence as
paragraph (a) and adding a comma after the word ``land'', and
redesignating the second sentence as (b) and revising it to read as
follows:
23.902 General.
* * * * *-
(b) Under EPCRA section 313 (42 U.S.C. 11023), and PPA section 6607
(42 U.S.C. 13106), the owner or operator of certain manufacturing
facilities is required to submit annual reports on toxic chemical
releases and waste management activities to the Environmental
Protection Agency (EPA) and the States.-
4. Section 23.903(b)(1) is revised to read as follows:
23.903 Applicability.
* * * * *-
(b) * * *--
(1) Acquisitions of commercial items as defined in part 2; or
* * * * *-
5. Section 23.906 is amended by revising paragraphs (a), (b), and
(c) to read as follows:
23.906 Requirements.-
(a) E.O. 12969 requires that solicitations for competitive
contracts expected to exceed $100,000 (including all options) include,
to the maximum extent practicable, as an award eligibility criterion, a
certification by the offeror that, if awarded a contract, either----
(1) As the owner or operator of facilities to be used in the
performance of the contract that are subject to Form R filing and
reporting requirements, the offeror will file, and will continue to
file throughout the life of the contract, for such facilities, the
Toxic Chemical Release Inventory Form (Form R) as described in EPCRA
sections 313 (a) and (g) and PPA section 6607; or--
(2) Facilities to be used in the performance of the contract are
exempt from Form R filing and reporting requirements because the
facilities--
(i) Do not manufacture, process, or otherwise use any toxic
chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c);---
(ii) 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);---
(iii) Do not 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);---
(iv) Do not fall within Standard Industrial Classification Code
(SIC) designations 20 through 39 as set forth in 19.102; or---
(v) Are not located within 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,
or any other territory or possession over which the United States has
jurisdiction.-
(b) A determination that it is not practicable to include the
solicitation provision at 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 the Environmental Protection Agency, Director, Environmental
Assistance Division, Office of Pollution Prevention and Toxic
Substances (Mail Code 7408), Washington, DC 20460.-
(c) Award shall not be made to offerors who do not certify in
accordance with paragraph (a) of this section when the provision at
52.223-13, Certification of Toxic Chemical Release Reporting, is
included in the solicitation. If facilities to be used by the offeror
in the performance of the contract are not subject to Form R filing and
reporting requirements and the offeror fails to check the appropriate
box(es) in 52.223-13, Certification of Toxic Chemical Release
Reporting, such failure shall be considered a minor informality or
irregularity.
* * * * *-
6. Section 23.907 is revised in the introductory text and paragraph
(a) to read as follows:
23.907 Solicitation provision and contract clause.-
Except for acquisitions of commercial items as defined in part 2,
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 in accordance
with 23.906(b) that to do so is not practicable; and
* * * * *
[[Page 41475]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES-
7. Section 52.223-13 is revised 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
October 7, 1996-
(a) Submission of this certification is a prerequisite for
making or entering into this contract imposed by Executive Order
12969, August 8, 1995.-
(b) By signing this offer, the offeror certifies that----
(1) As the owner or operator of facilities that will be used in
the performance of this contract that are subject to the filing and
reporting requirements described in section 313 of the Emergency
Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C.
11023) and section 6607 of the Pollution Prevention Act of 1990
(PPA) (42 U.S.C. 13106), the offeror will file and continue to file
for such facilities for the life of the contract the Toxic Chemical
Release Inventory Form (Form R) as described in sections 313(a) and
(g) of EPCRA and section 6607 of PPA; or--
(2) None of its owned or operated facilities to be used in the
performance of this contract is subject to the Form R filing and
reporting requirements because each such facility is exempt for at
least one of the following reasons: (Check each block that is
applicable.)-
{time} (i) The facility does not manufacture, process, or
otherwise use any toxic chemicals listed under section 313(c) of
EPCRA, 42 U.S.C. 11023(c);-
{time} (ii) The facility does 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);-
{time} (III) The facility does not 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) The facility does not fall within Standard
Industrial Classification Code (SIC) designations 20 through 39 as
set forth in Section 19.102 of the Federal Acquisition Regulation;
or
{time} (v) The facility is not located within 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, or any other territory or possession over
which the United States has jurisdiction.
(End of provision)
8. Section 52.223-14 is revised to read as follows:
52.223-14 Toxic Chemical Release Reporting.
As prescribed in 23.907(b), insert the following clause:
TOXIC CHEMICAL RELEASE REPORTING October 7, 1996
(a) Unless otherwise exempt, the Contractor, as owner or
operator of a facility 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). The
Contractor shall file, for each facility subject to the Form R
filing and reporting requirements, the annual Form R throughout the
life of the contract.-
(b) A Contractor owned or operated facility used in the
performance of this contract is exempt from the requirement to file
an annual Form R if--
(1) The facility does not manufacture, process, or otherwise use
any toxic chemicals listed under section 313(c) of EPCRA, 42 U.S.C.
11023(c);
(2) The facility does 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);-
(3) The facility does not 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);
(4) The facility does not fall within Standard Industrial
Classification Code (SIC) designations 20 through 39 as set forth in
Section 19.102 of the Federal Acquisition Regulation (FAR); or-
(5) The facility is not located within 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, or any other territory or possession over which the
United States has jurisdiction.
(c) If the Contractor has certified to an exemption 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 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, as owner or operator of a facility used in
the performance of this contract that is no longer 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 facility becomes
eligible; and (ii) continue to file the annual Form R for the life
of the contract for such facility.-
(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 2, 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), the substance of this clause, except this
paragraph (e).
(End of clause)
[FR Doc. 96-20191 Filed 8-7-96; 8:45 am]
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