[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]
BILLING CODE 6820-EP-P