[Federal Register Volume 67, Number 3 (Friday, January 4, 2002)]
[Proposed Rules]
[Pages 631-634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-117]



[[Page 631]]

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Part II





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Parts 23 and 52



Federal Acquisition Regulation; Hazardous Material Safety Data; 
Proposed Rule

Federal Register / Vol. 67, No. 3 / Friday, January 4, 2002 / 
Proposed Rules

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 23 and 52

[FAR Case 1998-020]
RIN 9000-AJ21


Federal Acquisition Regulation; Hazardous Material Safety Data

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to revise the language that 
provides policies and procedures for contractor submission of Material 
Safety Data Sheets (MSDSs).

DATES: Interested parties should submit comments in writing on or 
before March 5, 2002 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: farcase.1998-020@gsa.gov.
    Please submit comments only and cite FAR case 1998-020 in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Laura Smith, Procurement Analyst, (202) 208-7279. 
Please cite FAR case 1998-020.

SUPPLEMENTARY INFORMATION:

A. Background

    The Occupational Safety and Health Act of 1970 (OSHA) and the 
Federal Hazard Communication Standard (29 CFR 1910.1200) provide 
protection for most of this nation's employees against the hazards of 
exposure to domestically produced or imported chemicals. This 
protection is provided by requiring the manufacturer or importer of 
chemicals to label their products and to develop and distribute 
detailed MSDSs that evaluate and discuss the impact of hazardous 
materials used in the nation's workplaces. The manufacturer or importer 
is required to provide a copy of the MSDS with initial shipments of the 
product and whenever revisions to the product require revising the 
MSDS. OSHA excludes public sector employees from the protection 
provided by the Federal Hazard Communication Standard. FED-STD 313 was 
originally developed to extend to Federal employees the protection 
provided by OSHA laws and regulations to private sector employees.
    The current Federal Standard is FED-STD-313D, Material Safety Data, 
Transportation Data and Disposal Data for Hazardous Materials Furnished 
to Government Activities, dated April 3, 1996, including Change Notice 
1, dated March 21, 2000. The standard establishes the requirement for 
the preparation and submission of MSDSs by Government contractors who 
provide hazardous materials to the Government. The standard includes in 
its definition of hazardous materials any item or chemical that--
    1. Is a health hazard or physical hazard as defined by OSHA in 29 
CFR 1910.1200;
    2. Is reportable or potentially reportable or noticeable as 
inventory under the reporting requirements of the Hazardous Chemical 
Reporting (40 CFR part 302), or as an environmental release under the 
reporting requirements of the Toxic Chemical Release Reporting: 
Community Right to Know (40 CFR part 372);
    3. When being transported or moved, is a risk to public safety or 
an environmental hazard; and
    4. Is a special nuclear source, or by-product material as defined 
in 10 CFR part 40 or is regulated or referred to as radioactive.
    FAR Subpart 23.3, Hazardous Material Identification and Material 
Safety Data, and FAR 52.223-3, Hazardous Material Identification and 
Material Safety Data, implement Federal Standard 313 requirements in 
Government contracts that require the delivery of hazardous materials. 
The FAR policies and procedures ensure that the Government has notice 
of hazardous materials that will be supplied under Government contract 
and receives MSDSs necessary for employee safety and health programs 
and information necessary for the safe handling, storage, use, 
transportation and environmentally acceptable disposal of hazardous 
materials. These policies and procedures also ensure that Federal 
agencies that have facilities that are required by Executive order to 
meet reporting and notice requirements under 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) have the 
necessary information to make those reports or provide essential 
information in emergencies.
    The Councils initiated this case at the request of industry to 
consider changes to FAR Subpart 23.3 and FAR 52.223-3. Industry's 
concerns with the existing FAR text include--
    1. The definition of ``hazardous material;''
    2. The requirement to comply with any future revisions to Federal 
Standard 313 after contract award without an equitable adjustment;
    3. Requiring from contractors information over and above 
information required by the Federal Hazard Communication Standard. (The 
FAR Council is analyzing the differences between the OSHA standard and 
FED STD 313. This analysis will be complete prior to promulgation of a 
final rule. The FAR Council requests comments whether further changes 
to FED STD 313 are needed to make it more in line with the Federal 
Hazard Communication Standard);
    4. Ambiguous wording (e.g., term of contract);
    5. Virtually unlimited Government rights in the MSDS information 
and data without any protection for trade secrets or other proprietary 
data; and
    6. Liability issues.
    The Councils are proposing the following revisions to the FAR to 
address industry's concerns:
    1. Removing the automatic inclusion of future Federal Standard 313 
revisions into the contract. FAR 52.223-3(a) defines ``hazardous 
material'' as any material defined as hazardous under the latest 
version of Federal Standard 313 including revisions adopted during the 
term of the contract. The Councils agree with industry that the phrase 
``term of the contract'' was ambiguous and that it is difficult to 
anticipate future changes and their cost impact. This rule modifies the 
clause to require the contractor to comply with only the version of the 
Federal Standard in effect at the time of award of the contract. The 
contracting officer may modify the contract to address subsequent 
revisions to FED-STD-313, and make an equitable adjustment, if 
appropriate.
    2. Conforming FAR policy for proprietary information and 
information protected as trade secrets to policies provided in the 
Federal Hazard Communication Standard and Environmental Protection 
Agency (EPA) regulation at 40 CFR part 350.

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    3. Deleting FAR 52.223-3(f) that states that ``neither the 
requirements of this clause nor any act or failure to act by the 
Government shall relieve the contractor of any responsibility or 
liability for the safety of the Government, contractor, or 
subcontractor personnel or property.''
    Additionally, the rule--
    (a) Removes the solicitation provision requirements from FAR 
52.223-3 and establishes a separate provision at FAR 52.223-XX;
    (b) Clarifies that the rule applies if hazardous materials are 
expected to be delivered under the contract or incorporated into end 
items to be delivered under the contract (if certain conditions are 
met); and
    (c) Makes a number of editorial changes.
    This is a significant regulatory action and, therefore, was subject 
to review under section 6(b) of Executive Order 12866, Regulatory 
Planning and Review, dated September 30, 1993. This rule is not a major 
rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule 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 simply provides additional guidance on the current 
requirement at FAR Subpart 23.3 and the FAR clause at 52.223-3 for 
contractors to submit MSDSs if they provide hazardous materials to the 
Government. An Initial Regulatory Flexibility Analysis has, therefore, 
not been performed. We invite comments from small businesses and other 
interested parties. The Councils will consider comments from small 
entities concerning the affected FAR parts 23 and 52 in accordance with 
5 U.S.C. 610. Interested parties must submit such comments separately 
and should cite 5 U.S.C. 601, et seq. (FAR case 1998-020), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies because the 
proposed rule contains information collection requirements. 
Accordingly, the FAR Secretariat has submitted a request for approval 
of a new information collection requirement concerning OMB Control 
Number 9000-00XX, FAR case 1998-020, Hazardous Material Safety Data, to 
the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Annual Reporting Burden

    Public reporting burden for this collection of information is 
estimated to average .268 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.
    The annual reporting burden is estimated as follows:
    Respondents: 37,000.
    Responses per respondent: 1.45.
    Total annual responses: 53,600.
    Preparation hours per response: .268
    Total response burden hours: 14,350.

D. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than March 5, 2002 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, 
Washington, DC 20405.
    Public comments are particularly invited on: Whether this 
collection of information is necessary for the proper performance of 
functions of the FAR, and whether it will have practical utility; 
whether our estimate of the public burden of this collection of 
information is accurate, and based on valid assumptions and 
methodology; ways to enhance the quality, utility, and clarity of the 
information to be collected; and ways in which we can minimize the 
burden of the collection of information on those who are to respond, 
through the use of appropriate technological collection techniques or 
other forms of information technology.
    Requester may obtain a copy of the justification from the General 
Services Administration, FAR Secretariat (MVP), Room 4035, Washington, 
DC 20405, telephone (202) 501-4755. Please cite OMB Control Number 
9000-00XX, FAR Case 1998-020, Hazardous Material Safety Data, in all 
correspondence.

List of Subjects in 48 CFR parts 23 and 52

    Government procurement.

    Dated: December 28, 2001.
Victoria Moss,
Acting Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose that 48 CFR parts 23 and 52 
be 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, CONVSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

    2. Revise Subpart 23.3, consisting of sections 23.300 through 
23.303, to read as follows:

Subpart 23.3--Hazardous Material Identification and Material Safety 
Data

Sec.
23.300   Scope of subpart.
23.301   General.
23.302   Procedures.
23.303   Solicitation provision and contract clause.


23.300  Scope of subpart.

    This subpart--
    (a) Prescribes policies and procedures for acquisitions, other than 
for ammunition and explosives, that require the furnishing of data 
involving hazardous materials as defined in Federal Standard 313, 
Material Safety Data, Transportation Data and Disposal Data for 
Hazardous Materials Furnished to Government Activities; and
    (b) Applies if hazardous material is expected to be--
    (1) Delivered under the contract; or
    (2)(i) Incorporated into end items to be delivered under the 
contract; and
    (ii) Incorporation into the end items does not eliminate their 
hazardous nature throughout the life cycle of the end items.
    (c) Agencies may prescribe special procedures for ammunition and 
explosives.


23.301  General.

    (a) Federal Standard 313, issued and maintained by GSA--
    (1) Includes criteria for identification of hazardous materials; 
and
    (2) Establishes requirements for the preparation and submission of 
Material Safety Data Sheets (MSDSs) by contractors that provide 
hazardous materials to the Government.
    (b) Agencies must obtain MSDSs on hazardous materials delivered 
under Government contracts to--
    (1) Provide for safe handling, storage, use, transportation, and 
environmentally acceptable disposal of hazardous materials; and
    (2) Apprise employees, in accordance with regulations issued by the 
Occupational Safety and Health Administration (OSHA), of--
    (i) All hazards to which they may be exposed;
    (ii) Relative symptoms and appropriate emergency treatment; and
    (iii) Proper conditions and appropriate protective measures for 
safe use and handling.

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    (c) OSHA Standards (29 CFR 1910.1200) or Environmental Protection 
Agency regulations (40 CFR part 350), as applicable, provide policy 
when the MSDS indicates that the specific chemical identity of the 
hazardous material is being withheld as a trade secret.


23.302  Procedures.

    The contracting officer must--
    (a) Require the apparently successful offeror or quoter to submit 
MSDSs before contract award; and
    (b) Provide the safety officer or other designated individual with 
a copy of all MSDSs received.


23.303  Solicitation provision and contract clause.

    (a) Insert the provision at 52.223-XX, Hazardous Materials, in 
solicitations that include the clause at 52.223-3, Hazardous Material 
Identification and Material Safety Data.
    (b)(1) Insert the clause at 52.223-3, Hazardous Material 
Identification and Material Safety Data, in solicitations and contracts 
if the contract will require the delivery of--
    (i) A hazardous material; or
    (ii) An end item that includes a hazardous material that does not 
lose its hazardous nature throughout the life cycle of the end item.
    (2) If the agency awarding the contract is not the Department of 
Defense, use the clause with its Alternate I.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. Add section 52.223-XX to read as follows:


52.223-XX  Hazardous Materials.

    As prescribed in 23.303(a), insert the following provision:

Hazardous Materials (Date)

    (a) Definition. Hazardous material, as used in this provision, 
means any material defined as hazardous in the version of Federal 
Standard 313, Material Safety Data, Transportation Data and Disposal 
Data for Hazardous Materials Furnished to Government Activities, in 
effect on the date of issuance of the solicitation.
    (b) The offeror or quoter shall--
    (1) Submit a list of hazardous materials to be--
    (i) Delivered under the contract; or
    (ii)(A) Incorporated into end items to be delivered under the 
contract; and
    (B) Incorporation into the end items does not eliminate their 
hazardous nature throughout the life cycle of the end items; and
    (2) Properly identify the hazardous materials and include any 
applicable identification numbers, such as the National Stock 
Numbers or the Special Item Numbers.

                           Hazardous Materials
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        (If none, insert ``None'')               Identification Nos.
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                                            ............................
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                                            ............................
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    (c) Material Safety Data Sheets. (1) The apparently successful 
offeror or quoter shall submit on or before the date specified by 
the Contracting Officer a Material Safety Data Sheet (MSDS) meeting 
the requirements of the version of Federal Standard 313 in effect on 
the date of issuance of the solicitation, for all hazardous 
materials identified in paragraph (b) of this provision, even if the 
apparently successful offeror or quoter is not the actual 
manufacturer.
    (2) Failure to submit the MSDS prior to award may result in the 
apparently successful offeror or quoter being considered 
nonresponsible.

(End of provision)
    4. Revise section 52.223-3 to read as follows:


52.223-3  Hazardous Material Identification and Material Safety Data.

    As prescribed in 23.303 (b)(1), insert the following clause:

Hazardous Material Identification and Material Safety Data (Date)

    (a) Definition. Hazardous material, as used in this clause, 
means any material defined as hazardous in the version of Federal 
Standard 313, Material Safety Data, Transportation Data and Disposal 
Data for Hazardous Materials Furnished to Government Act, in effect 
at the time of award of the contract.--
    (b) Hazardous material identification. The Contractor shall--
    (1) Update the list of hazardous materials provided under FAR 
52.223-XX, Hazardous Materials. This list must be updated during 
performance of the contract whenever the Contractor determines that 
any other hazardous material will be--
    (i) Delivered under the contract; or
    (ii)(A) Incorporated into an end item to be delivered under the 
contract; and
    (B) Incorporation into the end item does not eliminate its 
hazardous nature throughout the life cycle of the end item; and
    (2) Provide the updated list to the Contracting Officer.
    (c) Material Safety Data Sheets (MSDSs). The Contractor shall--
    (1) Promptly notify and submit a revised MSDS to the Contracting 
Officer whenever there is a change in the composition of an item(s) 
that renders incomplete or inaccurate any MSDS previously submitted 
under FAR 52.223-XX, or this clause;
    (2) Submit an MSDS if the Contractor determines that any other 
material to be delivered under this contract is hazardous, even if 
the Contractor is not the actual manufacturer;
    (3) Submit any revised or new MSDS consistent with the version 
of Federal Standard 313 in effect at the time of award of the 
contract; and
    (4) Make MSDSs available to the Government when using any 
hazardous materials in areas where Government employees may be 
exposed, including MSDSs for hazardous materials not included on the 
list of hazardous materials (see paragraph (b)(1) of this clause).
    (d) The requirements of this clause shall not relieve the 
Contractor from complying with applicable Federal, State, and local 
laws, codes, ordinances, and regulations (including the obtaining of 
licenses and permits) concerning hazardous material.

(End of clause)
    Alternate I (Date) As prescribed in 23.303(b)(2), add the 
following paragraph (e) to the basic clause:
    (e) The Contractor shall--
    (1) For items that are shipped to consignees identified by 
mailing address as agency depots, distribution centers, or customer 
supply centers, place one copy of the MSDS in--
    (i) Each shipping container; or
    (ii) A weather resistant envelope affixed to the outside of each 
shipping container; and
    (2) For other consignees--
    (i) Include a copy of the MSDS with the packing list or other 
suitable shipping document accompanying each shipment; or
    (ii) If authorized in writing by the Contracting Officer, 
transmit the MSDSs to consignees in advance of shipment.

[FR Doc. 02-117 Filed 1-3-02; 8:45 am]
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