[Federal Register Volume 68, Number 142 (Thursday, July 24, 2003)]
[Rules and Regulations]
[Pages 43868-43871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18537]



[[Page 43868]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 23 and 52

[FAC 2001-15; FAR Case 2000-005; Item V]
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: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to implement 
Executive Order (E.O.) 13148 of April 21, 2000, Greening the Government 
through Leadership in Environmental Management.

DATES: Effective Date: August 25, 2003.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Craig R. Goral, Procurement Analyst, at (202) 501-
3856. Please cite FAC 2001-15, FAR case 2000-005.

SUPPLEMENTARY INFORMATION: 

A. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 67 FR 55670, August 29, 2002, with a request for comments. 
Two respondents submitted public comments. A discussion of the comments 
is provided below. Differences between the proposed and the final rule 
are discussed in paragraph 1 below.
    1. Comment: One respondent recommended the following changes to FAR 
23.1005:
    a. Insert ``or plans to implement'' between ``implemented'' and 
``an EMS'' at FAR 23.1005(b)(1) and (b)(2)(i);
    b. Change ``contractors'' to ``the contractor'' at 23.1005(c)(1); 
and
    c. Remove ``FCA'' and insert ``facility compliance audit or an 
environmental management system audit'' at FAR 23.1005(c)(2).
    Councils' Response:
    a. Concur. As proposed, FAR 23.1005 requires the use of FAR clause 
52.223-5 at facilities with an environmental management system (EMS). 
The clarification expands the prescription for the use of the clause to 
include situations where an EMS is contemplated.
    b. Partially concur. The Councils agree that there is a grammatical 
error, but corrected the error by substituting the term ``contractor 
activities'' for ``contractors to conduct activities.''
    c. Concur. The inclusion of the phrase ``or an environmental 
management system audit'' acknowledges an agency's option to conduct an 
EMS audit in lieu of a facility compliance audit (FCA) as provided in 
section 402(b) of Executive Order 13148.
    2. Comment: The respondent recommended that the FAR rule be 
reviewed to ensure that, wherever practicable, the FAR actively 
supports implementation of EMS at Federal facilities including, where 
the facility or agency deems appropriate, participation in the EMS by 
contracting entities, including suppliers. The FAR change requires more 
than the mere provision of information for implementation of an EMS, as 
the proposed rule now states, to instead include active participation 
in the EMS, where the facility or agency deems it necessary. At a 
minimum, the language should state that vendors, contractors, and/or 
subcontractors are required to be consistent with agency/bureau and/or 
facility EMS policies.
    Councils' Response: Section 305(c) of E.O. 13148 states: ``The 
Federal Acquisition Regulation (FAR) Council shall develop acquisition 
policies and procedures for contractors to supply agencies with all 
information necessary for compliance with this order.'' The Councils 
believe that the rule satisfies this requirement.
    Per section 306 of E.O. 13148, an Interagency Environmental 
Leadership Workgroup ``shall develop policies and guidance required by 
this order and member agencies shall facilitate implementation of the 
requirements of this order in their respective agencies.'' While the 
Councils recognize and fully appreciate the need for EMS policy and 
standards, these agency/bureau and/or facility EMS policies will vary 
among agencies/bureaus and will likely evolve as well. Additionally, 
the level of participation required by contractors/subcontractors will 
be contract-specific. Therefore, requirements for EMS participation by 
contractors/subcontractors would have to be identified in the contract 
itself. The recommended language does not serve this purpose and would 
lead to contractual ambiguities.
    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 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., 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 final 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.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies because the 
final rule contains information collection requirements. These 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 FAR 
52.223-5) and to complete an FCA (Alternate II of FAR 52.223-5). 
Accordingly, the FAR Secretariat has forwarded a request for approval 
of the

[[Page 43869]]

increased information collection requirement concerning Leadership in 
Environmental Management (E.O. 13148) to the Office of Management and 
Budget under 44 U.S.C. 3501, et seq. Interested parties may obtain 
copies of the form and supporting documents increasing the burden hours 
from the FAR Secretariat by requesting OMB Control Number 9000-0147, 
Leadership in Environmental Management (E.O. 13148).

List of Subjects in 48 CFR Parts 23 and 52

    Government procurement.

    Dated: July 16, 2003.
Laura Auletta,
Director, Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 23 and 52 as set forth 
below:
0
1. The authority citation for 48 CFR parts 23 and 52 is revised to read 
as follows:

    Authority: 40 U.S.C. 121(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

0
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.

0
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.
* * * * *

0
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.
* * * * *


23.803  [Amended]

0
5. Amend section 23.803 in the introductory text of paragraph (b) by 
removing ``ensure that acquisitions''; and in paragraph (b)(1) by 
removing ``Executive Order 12843'' and adding ``Executive Order 13148'' 
in its place.

Subpart 23.9--Contractor Compliance With Toxic Chemical Release 
Reporting

0
6. Revise the heading of Subpart 23.9 as set forth above.

0
7. Revise section 23.901 to read as follows:


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.

0
8. In section 23.902, add a sentence to the end of paragraph (b) to 
read as follows:


23.902  General.

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


23.903  [Amended]

0
9. In section 23.903, amend paragraph (a) by removing ``(including all 
options)'';


23.904  [Removed]


23.905 through 23.907  [Redesignated as 23.904 through 23.906]

0
10. Remove section 23.904 and redesignate sections 23.905, 23.906, and 
23.907 as 23.904, 23.905, and 23.906, respectively;

0
11. In the newly designated section 23.905, revise paragraphs (a) 
introductory text and (a) (2) (iv), and amend paragraph (d) by removing 
``E.O. 12969'' and adding ``E.O. 13148'' in its place. The revised text 
reads as follows:


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.
    (D) Industry code 4911, 4931, or 4939 (limited to facilities that 
combust coal and/or oil for the purpose of generating power for 
distribution in commerce).
    (E) Industry code 4953 (limited to facilities regulated under the 
Resource Conservation and Recovery Act, Subtitle C (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
* * * * *

0
12. In the newly designated section 23.906, revise paragraph (a), and 
amend paragraph (b) by removing ``(including all options)''. The 
revised text reads as follows:


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
* * * * *

0
13. Revise Subpart 23.10, consisting of sections 23.1000 through 
23.1005, to read as follows:

Subpart 23.10--Federal Compliance With Right-to-Know Laws and 
Pollution Prevention Requirements


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 an agency in the customs territory of the United States.


23.1003  Definitions.

    As used in this subpart--
    Federal agency means an executive agency (see 2.101).

[[Page 43870]]

    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 or plans to implement an EMS; or
    (2) Activities and operations--
    (i) To be performed at a Government-operated Federal facility that 
has implemented or plans to implement 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 contractor activities on a Federal 
facility; and
    (2) The agency has determined that the contractor activities should 
be included within the FCA or an environmental management system audit.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
14. Amend section 52.213-4 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) (Aug 2003)

* * * * *
    (b) * * *
    (1) * * *
    (vii) 52.223-5, Pollution Prevention and Right-to-Know 
Information (Aug 2003) (E.O. 13148) (Applies to services performed 
on Federal facilities).
* * * * *

0
15. 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 (Aug 2003)

    (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 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.

(End of clause)
    Alternate I (Aug 2003). 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 (Aug 2003). 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.


0
16. Amend section 52.223-13 by revising the introductory text, the date 
of the provision, and paragraphs (a), (b)(2)(i) and (b)(2)(iv) 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 (Aug 2003)

    (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:
    (A) Major group code 10 (except 1011, 1081, and 1094.
    (B) Major group code 12 (except 1241).
    (C) Major group codes 20 through 39.
    (D) Industry code 4911, 4931, or 4939 (limited to facilities 
that combust coal and/or oil for the purpose of generating power for 
distribution in commerce).
    (E) Industry code 4953 (limited to facilities regulated under 
the Resource Conservation and Recovery Act, Subtitle C (42 U.S.C. 
6921, et seq.), 5169, 5171, or 7389 (limited to facilities primarily 
engaged in solvent recovery services on a contract or fee basis); or
* * * * *

0
17. Amend section 52.223-14 by revising the introductory text, the date 
of the clause, and paragraphs (b)(1) and (b)(4) 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 (Aug 2003)

* * * * *
    (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.
    (iv) Industry code 4911, 4931, or 4939 (limited to facilities 
that combust coal and/

[[Page 43871]]

or oil for the purpose of generating power for distribution in 
commerce).
    (v) Industry code 4953 (limited to facilities regulated under 
the Resource Conservation and Recovery Act, Subtitle C (42 U.S.C. 
6921, et seq.)), 5169, 5171, or 7389 (limited to facilities 
primarily engaged in solvent recovery services on a contract or fee 
basis); or
* * * * *

[FR Doc. 03-18537 Filed 7-23-03; 8:45 am]
BILLING CODE 6820-EP-P