[Federal Register Volume 67, Number 168 (Thursday, August 29, 2002)]
[Proposed Rules]
[Pages 55670-55673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21618]



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Part VI





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Parts 23 and 52



Federal Acquistion Regulation; Leadership in Environmental Management 
(E.O. 13148); Proposed Rule

  Federal Register / Vol. 67, No. 168 / Thursday, August 29, 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 2000-005]
RIN 9000-AJ44


Federal Acquisition Regulation; Leadership in Environmental 
Management (E.O. 13148)

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 implement Executive Order 13148 
of April 21, 2000, Greening the Government through Leadership in 
Environmental Management.

DATES: Interested parties should submit comments in writing on or 
before October 28, 2002 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: [email protected]. Please submit comments only and cite FAR case 2000-005 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 Laura Smith, Procurement Analyst, at (202) 501-7279. 
Please cite FAR case 2000-005.

SUPPLEMENTARY INFORMATION:

A. Background

    On April 21, 2000, the President signed Executive Order (E.O.) 
13148, Greening the Government Through Leadership in Environmental 
Management. The E.O.--
    1. Provides requirements and goals for agencies related to--
    a. Environmental management and compliance;
    b. Right-to-know and pollution prevention;
    c. Release reduction of toxic chemicals;
    d. Use reduction of toxic chemicals, hazardous substances, and 
other pollutants; and
    e. Reduction in ozone-depleting substances;
    2. Revokes E.O.s 12843 of April 21, 1993, Procurement Requirements 
and Policies for Federal Agencies for Ozone-Depleting Substances; 12856 
of August 3, 1993, Federal Compliance with Right-To-Know Laws and 
Pollution Prevention Requirements; and 12969 of August 8, 1995, Federal 
Acquisition and Community Right-To-Know;
    3. Requires agencies to continue to follow the policies and 
procedures in FAR Subparts 23.8, Ozone-Depleting Substances; 23.9, 
Toxic Chemical Release Reporting; and 23.10 Federal Compliance with 
Right-To-Know Laws and Pollution Prevention Requirements, that were in 
effect as of the date of E.O. 13148; and
    4. Requires agencies to implement environmental management systems 
(EMSs) and conduct facility compliance audits (FCAs) at certain Federal 
facilities.
    This proposed rule amends the FAR to implement E.O. 13148 by--
    1. Removing references to E.O.s 12843, 12856, and 12969;
    2. Replacing references for the revoked E.O.s with that of E.O. 
13148;
    3. Adding the requirement at FAR 52.223-5, Pollution Prevention and 
Right-To-Know Information, for contractors to provide information 
necessary so that agencies can implement EMSs and complete FCAs at 
certain Federal facilities; and
    4. Making editorial changes.
    North American Industry Classification System (NAICS) codes will 
replace Standard Industrial Classification (SIC) codes in FAR Subpart 
23.9 and FAR 52.223-13 and 52.223-14 once the NAICS conversion for the 
Toxics Release Inventory program is complete.
    This is not a significant regulatory action and, therefore, was not 
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 as required by E.O. 13148, this rule does not change the 
current policies and procedures in FAR Subparts 23.8, 23.9, and 23.10. 
The proposed rule provides a means for agencies to obtain contractor 
information for the implementation of EMSs and the completion of FCAs 
at certain Federal facilities. Agencies will determine which facilities 
are appropriate for EMS implementation. Federal facilities include 
Government-owned, contractor-operated facilities, and Government-owned 
facilities on which multiple contractors perform services. The criteria 
for performing EMSs indicate that large, rather than small, Federal 
facilities are more likely to be included in EMSs, and these large 
Federal facilities are more likely to be operated by large businesses. 
If, on the other hand, several contractors are performing services on a 
Government-owned facility, many of the services performed by small 
businesses fall within the category of administrative support services 
considered ``environmentally clean'' and not included in EMSs. For 
similar reasons, the requirement pertaining to FCAs is not expected to 
have a significant economic impact on a substantial number of small 
entities.
    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 2000-005), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies because the 
proposed rule contains information collection requirements. The 
proposed changes to the FAR will increase the information collection 
requirement currently approved under Office of Management and Budget 
control number 9000-0147, since the rule requires contractors to 
provide information needed by a Federal facility to implement an EMS 
(Alternate I of 52.223-5) and to complete a FCA (Alternate II of 
52.223-5). Accordingly, the FAR Secretariat has submitted a request for 
approval of a revised information collection requirement concerning 
leadership in environmental management as it relates to E.O. 13148 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 .5 hours per 
response, including the time

[[Page 55671]]

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: 2500.
    Responses per respondent: 1.
    Total annual responses: 2500.
    Preparation hours per response: .5.
    Total response burden hours: 1250.

D. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than October 28, 2002 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, FAR Secretariat (MVA), 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 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 (MVA), Room 4035, Washington, 
DC 20405, telephone (202) 208-7312. Please cite OMB Control Number 
9000-0147, Leadership in Environmental Management (E.O. 13148), in all 
correspondence.

List of Subjects in 48 CFR Parts 23 and 52

    Government procurement.

    Dated: August 20, 2002.
Al Matera,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 23 and 
52 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, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

    2. Add section 23.001 to read as follows:


23.001  Definition.

    Toxic chemical, as used in this part, means a chemical or chemical 
category listed in 40 CFR 372.65.
    3. Amend section 23.702 by revising paragraph (d) to read as 
follows:


23.702  Authorities.

* * * * *
    (d) Executive Order 13148 of April 21, 2000, Greening the 
Government through Leadership in Environmental Management.
* * * * *
    4. Amend section 23.801 by revising paragraph (b) to read as 
follows:


23.801  Authorities.

* * * * *
    (b) Executive Order 13148 of April 21, 2000, Greening the 
Government through Leadership in Environmental Management.
* * * * *
    5. Amend section 23.803 by revising the introductory text of 
paragraph (b); and in paragraph (b)(1) by removing ``12843'' and adding 
``13148'' in its place.


23.803  Policy.

* * * * *
    (b) In preparing specifications and purchase descriptions, and in 
the acquisition of supplies and services, agencies shall--
* * * * *
    6. Amend Subpart 23.9 as follows:
    a. Revise the Subpart heading;
    b. Revise section 23.901;
    c. In section 23.902, add a sentence to the end of paragraph (b);
    d. In section 23.903, amend paragraph (a) by removing ``(including 
all options)'' and revise paragraph (b)(2);
    e. Remove section 23.904 and redesignate sections 23.905, 23.906, 
and 23.907 as 23.904, 23.905, and 23.906, respectively;
    f. In the newly designated section 23.905 revise paragraphs (a) 
introductory text, (a)(2)(iv), and (a)(2)(v), and amend paragraph (d) 
by removing ``12969'' and adding ``13148'' in its place; and
    g. In the newly designated section 23.906 revise paragraph (a), and 
amend paragraph (b) by removing ``(including all options)''.
    The revised and added text reads as follows:

Subpart 23.9--Contractor Compliance with Toxic Chemical Release 
Reporting


23.901  Purpose.

    This subpart implements the requirements of Executive Order (E.O.) 
13148 of April 21, 2000, Greening the Government through Leadership in 
Environmental Management.


23.902  General.

    (b) * * * See EPA's website at http://www.epa.gov/tri for guidance.


23.903  Applicability.

* * * * *
    (b) * * *
    (2) Contractor facilities located outside the United States, 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.


23.905  Requirements.

* * * * *
    (a) E.O. 13148 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 an 
offeror that, if awarded a contract, either--
* * * * *
    (2) * * *
    (iv) Do not fall within the following Standard Industrial 
Classification (SIC) codes or their corresponding North American 
Industry Classification System sectors:
    (A) Major group code 10 (except 1011, 1081, and 1094.
    (B) Major group code 12 (except 1241).
    (C) Major group codes 20 through 39 or their corresponding North 
American Industry Classification System (NAICS) sectors 31 through 33.
    (D) Industry codes 4911, 4931, or 4939 (limited to facilities that 
combust coal and/or oil for generating power).
    (E) Industry codes 4953 (limited to facilities regulated under the 
Resource Conservation and Recovery Act (42 U.S.C. 6921, et seq.)) or 
5169, or 5171, or 7389 (limited to facilities primarily engaged in 
solvent recovery services on a contract or fee basis); or
    (v) Are not located within the United States, 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.
* * * * *

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23.906  Solicitation provision and contract clause.

* * * * *
    (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 and competitive 8(a) contracts, 
unless it has been determined in accordance with 23.905(b) that to do 
so is not practicable; and
* * * * *
    7. Revise subpart 23.10, consisting of sections 23.1000 through 
23.1005, to read as follows:


23.1000  Scope.

    This subpart prescribes policies and procedures for obtaining 
information needed for Government--
    (a) Compliance with right-to-know laws and pollution prevention 
requirements;
    (b) Implementation of an environmental management system (EMS) at a 
Federal facility; and
    (c) Completion of facility compliance audits (FCAs) at a Federal 
facility.


23.1001  Authorities.

    (a) Emergency Planning and Community Right-to-Know Act of 1986, 42 
U.S.C. 11001-11050 (EPCRA).
    (b) Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109 (PPA).
    (c) Executive Order 13148 of April 21, 2000, Greening the 
Government through Leadership in Environmental Management.


23.1002  Applicability.

    The requirements of this subpart apply to facilities owned or 
operated by a Federal agency except those facilities located outside 
the United States, 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.


23.1003  Definitions.

    As used in this subpart--
    Federal agency means an executive agency (see 2.101).
    Priority chemical means a chemical identified by the Interagency 
Environmental Leadership Workgroup or, alternatively, by an agency 
pursuant to Section 503 of Executive Order 13148 of April 21, 2000, 
Greening the Government through Leadership in Environmental Management.


23.1004  Requirements.

    (a) E.O. 13148 requires Federal facilities to comply with the 
provisions of (EPCRA) and (PPA).
    (b) Pursuant to E.O. 13148 and any agency implementing procedures, 
every new contract that provides for performance on a Federal facility 
shall require the contractor to provide information necessary for the 
Federal agency to comply with the--
    (1) Emergency planning and toxic release reporting requirements in 
EPCRA, PPA, and E.O. 13148;
    (2) Toxic chemical, priority chemical, and hazardous substance 
release and use reduction goals of Sections 502 and 503 of Executive 
Order 13148; and
    (3) Requirements for EMSs and FCAs if the place of performance is 
at a Federal facility designated by the agency.


23.1005  Contract clause.

    (a) Insert the clause at 52.223-5, Pollution Prevention and Right-
to-Know Information, in solicitations and contracts that provide for 
performance, in whole or in part, on a Federal facility.
    (b) Use the clause with its Alternate I if the contract provides 
for contractor--
    (1) Operation or maintenance of a Federal facility at which the 
agency has implemented an EMS; or
    (2) Activities and operations--
    (i) To be performed at a Government-operated Federal facility that 
has implemented an EMS; and
    (ii) That the agency has determined are covered within the EMS.
    (c) Use the clause with its Alternate II if--
    (1) The contract provides for contractors to conduct activities on 
a Federal facility; and
    (2) The agency has determined that the contractor activities should 
be included within the FCA.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    8. Section 52.213-4 is amended by revising the date of the clause 
and paragraph (b)(1)(vii) to read as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items)(Date)

* * * * *

    (b) * * *
    (1) * * *
    (vii) 52.223-5, Pollution Prevention and Right-to-Know 
Information (DATE)(E.O. 13148). (Applies to services performed on 
Federal facilities.)
* * * * *
    9. Revise section 52.223-5 to read as follows:


52.223-5  Pollution Prevention and Right-to-Know Information.

    As prescribed in 23.1005, insert the following clause:

Pollution Prevention and Right-To-Know Information (Date)

    (a) Definitions. As used in this clause--
    Priority chemical means a chemical identified by the Interagency 
Environmental Leadership Workgroup or, alternatively, by an agency 
pursuant to Section 503 of Executive Order 13148 of April 21, 2000, 
Greening the Government through Leadership in Environmental Management.
    Toxic chemical means a chemical or chemical category listed in 40 
CFR 372.65.
    (b) Executive Order 13148 requires Federal facilities to comply 
with the provisions of the Emergency Planning and Community Right-to-
Know Act of 1986 (EPCRA)(42 U.S.C. 11001-11050) and the Pollution 
Prevention Act of 1990 (PPA)(42 U.S.C. 13101-13109).
    (c) The Contractor, upon request of the Government, shall provide 
all information needed by the Federal facility to comply with the 
following:
    (1) The emergency planning reporting requirements of Section 302 of 
EPCRA.
    (2) The emergency notice requirements of Section 304 of EPCRA.
    (3) The list of Material Safety Data Sheets, required by Section 
311 of EPCRA.
    (4) The emergency and hazardous chemical inventory forms of Section 
312 of EPCRA.
    (5) The toxic chemical release inventory of Section 313 of EPCRA, 
which includes the reduction and recycling information required by 
Section 6607 of PPA.
    (6) The toxic chemical, priority chemical, and hazardous substance 
release and use reduction goals of Sections 502 and 503 of Executive 
Order 13148.
    Alternate I (DATE). As prescribed in 23.1005(b), add the following 
paragraph (c)(7) to the basic clause:
    (c)(7) The environmental management system as described in Section 
401 of E.O. 13148.
    Alternate II (DATE). As prescribed in 23.1005(c), add the following 
paragraph (c)(7) to the basic clause. If Alternate I is also 
prescribed, renumber paragraph (c)(7) as paragraph (c)(8).
    (c)(7) The facility compliance audits as described in Section 402 
of E.O. 13148.

    10. Amend section 52.223-13 by revising the introductory text, the 
date of the provision, and paragraphs (a),

[[Page 55673]]

(b)(2)(i), (b)(2)(iv), and (b)(2)(v) to read as follows:


52.223-13  Certification of Toxic Chemical Release Reporting.

    As prescribed in 23.906(a), insert the following provision:

Certification of Toxic Chemical Release Reporting (Date)

    (a) Executive Order 13148, of April 21, 2000, Greening the 
Government through Leadership in Environmental Management, requires 
submission of this certification as a prerequisite for contract 
award.
    (b) * * *
    (2) * * *
    [ ] (i) The facility does not manufacture, process, or otherwise 
use any toxic chemicals listed in 40 CFR 372.65;
* * * * *
    [ ] (iv) The facility does not fall within the following 
Standard Industrial Classification (SIC) codes or their 
corresponding North American Industry Classification System sectors:
    (1) Major group code 10 (except 1011, 1081, and 1094.
    (2) Major group code 12 (except 1241).
    (3) Major group codes 20 through 39 or their corresponding North 
American Industry Classification System (NAICS) sectors 31 through 
33.
    (4) Industry codes 4911, 4931, or 4939 (limited to facilities 
that combust coal and/or oil for generating power).
    (5) Industry codes 4953 (limited to facilities regulated under 
the Resource Conservation and Recovery Act (42 U.S.C. 6921, et 
seq.)) or 5169, or 5171, or 7389 (limited to facilities primarily 
engaged in solvent recovery services on a contract or fee basis); or
    [ ] (v) The facility is not located within the United States, 
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)

    11. Amend section 52.223-14 by revising the introductory text, the 
date of the clause, and paragraphs (b)(1), (b)(4), and (b)(5) to read 
as follows:


52.223-14  Toxic Chemical Release Reporting.

    As prescribed in 23.906(b), insert the following clause:

Toxic Chemical Release Reporting (Date)

* * * * *
    (b) * * *
    (1) The facility does not manufacture, process, or otherwise use 
any toxic chemicals listed in 40 CFR 372.65;
* * * * *
    (4) The facility does not fall within the following Standard 
Industrial Classification (SIC) codes or their corresponding North 
American Industry Classification System sectors:
    (i) Major group code 10 (except 1011, 1081, and 1094).
    (ii) Major group code 12 (except 1241).
    (iii) Major group codes 20 through 39 or their corresponding 
North American Industry Classification System sectors 31 through 33.
    (iv) Industry codes 4911, 4931, or 4939 (limited to facilities 
that combust coal and/or oil for generating power).
    (v) Industry codes 4953 (limited to facilities regulated under 
the Resource Conservation and Recovery Act (42 U.S.C. 6921, et 
seq.)) or 5169, or 5171, or 7389 (limited to facilities primarily 
engaged in solvent recovery services on a contract or fee basis); or
    (5) The facility is not located within the United States, 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.
* * * * *

[FR Doc. 02-21618 Filed 8-28-02; 8:45 am]
BILLING CODE 6820-EP-P