[Federal Register Volume 69, Number 42 (Wednesday, March 3, 2004)]
[Proposed Rules]
[Pages 10118-10124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4749]



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Part IV





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. 69, No. 42 / Wednesday, March 3, 2004 / 
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 policies and procedures 
for contractor submission of Material Safety Data Sheets (MSDSs).

DATES: Interested parties should submit comments in writing on or 
before May 3, 2004, 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: [email protected].
    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

    This rule revises the policies and procedures for the submission of 
material safety data sheets (MSDS) by government contractors who 
provide hazardous materials to the government. Because this rule 
differs significantly from the proposed rule that was published in the 
Federal Register at 67 FR 632, January 4, 2002, it is being published 
as a second proposed rule. The differences between the two proposed 
rules are as follows:
    [sbull] FAR 23.301(a)(3). This second proposed rule adds a website 
where contractors can obtain a copy of Federal Standard No. 313 (FED-
STD 313). (See comment 2e.)
    [sbull] FAR 23.301(b)(2). The Councils have revised FAR 
23.301(b)(2) of the proposed rule (1) to indicate that the information 
listed is not all-inclusive, and (2) to better describe the type of 
information.
    [sbull] FAR 52.223-3(a) and (c): This second proposed rule adds the 
requirement that contractors must comply with certain changes to the 
Occupational Safety and Health Administration's (OSHA) Hazard 
Communication Standard (HCS) that occur after contract award. (See 
comment 2b.)
    The first proposed rule required that once the contractor had 
submitted an MSDS, the contractor was only required to revise the MSDS 
if the composition of the hazardous material changed, and the change 
rendered the MSDS incomplete or inaccurate.
    This second proposed rule adds a second condition for when the 
contractor must submit a revised MSDS. The contractor also must submit 
a revised MSDS if the contractor ``has knowledge, or reasonably should 
have knowledge, of * * * New information on the health hazards of a 
chemical or ways to protect the employee that renders the MSDS 
incomplete or inaccurate.''
    The Councils have made several editorial changes.
    Seven respondents submitted comments on the proposed rule. A 
discussion of their comments is provided below:

1. FAR Definition of Hazardous Material

    a. Comment: The rule is correct by having the FAR definition for 
``hazardous'' match the definition in FED-STD 313.
    Councils' Response: Concur.
    b. Comment: The Councils should ``adopt for government use the 
existing commercial approach to hazard communication that has developed 
under the Federal Hazard Communication. If a particular program had 
additional requirements, those needs would be addressed by the Request 
for Proposal and subsequent negotiations. This ensures that program 
needs are met without any unnecessary burden being placed on the 
contractor.'' In other words, the definition of ``hazardous material'' 
should be limited to the definition of ``hazardous chemical'' as 
defined in OSHA's HCS, 29 CFR 1910.1200, so that contractors only 
routinely have to comply with the regulation that is used in the 
commercial sector, i.e., OSHA's HCS. To comply with other government 
regulations would be an unnecessary burden on contractors.
    Councils' Response: Do not concur. It is also necessary for 
contractors to comply with the other documents cited in FED-STD 313 
that regulate hazardous material. FAR 52.223-3(a) of the proposed rule 
states that a hazardous material is any material defined as hazardous 
in FED-STD 313. The definition of ``hazardous material'' in FED-STD 313 
is broader than the definition in OSHA's HCS. Paragraph 3.2 of FED-STD 
313 indicates that an item or chemical is hazardous if it falls within 
one of the following four categories:
    1. Health or physical hazard that is regulated by OSHA under 29 CFR 
1910.1200.
    2. Environmental hazard that is regulated by the Environment 
Protection Agency (EPA) under 40 CFR 302 and 40 CFR 372.
    3. When being transported or moved, is a risk to public safety or 
an environmental hazard that is regulated by the Department of 
Transportation (DoT) under 49 CFR 100-180 or certain other 
organizations.
    4. Special nuclear source, by-product material, or radioactive and 
regulated by the Department of Energy (DoE) under 10 CFR or by certain 
other organizations.
    Information is needed on an item that is hazardous during any 
period of its life cycle. OSHA's HCS addresses chemicals that are 
hazardous only during ``normal use'' of the chemical. Thus, it would be 
appropriate to limit FED-STD 313 to the requirements of OSHA's HCS if 
the government were only concerned with the safety and health of 
employees during the ``normal use'' of the hazardous chemical in the 
workplace. However, the government is responsible for managing an item 
throughout the item's life cycle. This may include storage of the item 
for extended periods of time, transporting the item, and eventual 
disposal of the item. To manage the item appropriately, the government 
must obtain health and safety information if the item exhibits a 
hazardous nature during any period of its life cycle, not only during 
the period of ``normal use.'' Therefore, it is appropriate and 
administratively more efficient to include all the regulatory 
requirements for hazardous materials in one document (FED-STD 313) 
rather than address and ``negotiate'' these requirements separately 
with each procurement.

[[Page 10119]]

    The Councils also question the argument that the broader definition 
places an unnecessary burden on the contractor. The regulations cited 
in FED-STD 313 that apply to government contractors also apply to 
contractors in the commercial sector. FED-STD 313 is simply the means 
used to convey these regulatory requirements to contractors under 
government contracts.
    c. Comment: The statement at FAR 23.300(b)(2)(ii) and elsewhere 
seems ``to negate the OSHA ``article'' rule * * *. The words seem to 
imply if an element of an article * * * has a ``hazardous nature'' an 
MSDS must be provided. This would be a great burden on manufacturers.'' 
The OSHA definition of articles or its equivalent should be 
incorporated into the FAR to clarify that if an item is an ``article'' 
as defined in OSHA's HCS, an MSDS is not required.
    Councils' Response: Do not concur. Under OSHA's HCS (29 CFR 
1910.1200(c)), items which are not hazardous during ``normal use'' are 
termed ``articles'' and are exempt from the requirements for submission 
of MSDSs. In contrast, the proposed rule (at FAR 23.300(b)(2) and 
elsewhere) states that if an item is hazardous during any point in the 
life cycle of the item (e.g., disposal or storage), not just during the 
period of ``normal use,'' an MSDS is required. Therefore, even though 
an item may be deemed an ``article'' and not be hazardous under the 
criteria of OSHA regulations, the same item may be deemed hazardous 
under other agency regulations cited in FED-STD 313 (e.g., EPA, DoT, 
etc.).
    d. Comment: The rule should expand the coverage at FAR 23.300(b) 
and elsewhere relating to the language ``hazardous materials are 
expected to be delivered under the contract or incorporated into end 
items,'' specifically in the areas of carcinogenic and environmental 
pollutants (i.e., Cadmium and Hexavalent Chromium).
    Councils' Response: Do not agree. Since no language was provided by 
the respondent, the Councils are not clear as to what specific issue is 
being raised. The plating of many weapon systems does contain cadmium 
and chromium. While these chemicals are not hazardous during normal 
use, they become hazardous if the plated part is stripped and re-
plated. If the respondent is implying that the rule should be revised 
to ensure that these chemicals are included in the definition of 
hazardous material during the de-plating process, the Councils believe 
that the existing definition for hazardous material in FED-STD 313 and 
the language in the proposed rule (FAR 23.300(b)(2), FAR 
23.303(b)(1)(ii), FAR 52.223-XX(b)(1)(ii)(B), and FAR 52.223-
3(b)(1)(ii)(B)) cover this situation.

2. FED-STD No. 313

    a. Comment: Agree with the government's clarification that the 
universe of hazardous materials subject to this standard are those 
materials defined as hazardous at the time of award and that the rule 
eliminates the ``automatic inclusion of future revisions of FED-STD 313 
into a contract without an equitable adjustment * * *.''
    Councils' Response: Partially concur. The definition of hazardous 
material is in FED-STD 313, and includes references to various agency 
regulations, e.g., OSHA, EPA, DoT, DoE, etc. The Councils agree that, 
during contract performance, contractors should comply with the version 
of FED-STD 313 that is in effect at a fixed point in time, i.e., 
contract award. However, the Councils believe that contractors should 
comply with certain changes to OSHA's HCS which is cited in FED-STD 
313, even if the change occurs after contract award, for the reasons 
cited in Councils' response to comment 2b.
    For the reasons cited below, the Councils do not think it is 
equitable for the Contractor to comply with the provision re: automatic 
inclusion of future FED-STD 313 revisions for the reasons cited below.
    1. Hard to quantify future changes to FED-STD 313. The current FAR 
at 52.223-3(a) indicates that the contractor would have to comply with 
any revised FED-STD 313 without equitable adjustment. This provision 
appears to impose an undue risk on the contractor since future changes 
may be hard to predict and quantify during negotiations of the original 
contract price. Therefore, the proposed rule revised FAR 52.223-3(a) to 
state that the contractor would be required to comply with FED-STD 313 
that is in effect at the time of contract award. Should there be a 
change to FED-STD 313 subsequent to contract award, the contracting 
officer would modify the contract with appropriate consideration.
    2. Changes to FED-STD 313 not published for public comment. Changes 
to FED-STD 313 are currently not published in the Federal Register to 
provide the general public the opportunity to comment, although draft 
changes are circulated to selected interested parties.
    b. Comment: If the automatic inclusion of future FED-STD 313 
revisions into a contract is removed, ``contractors at government work 
sites where hazardous materials are in use would not have to concern 
themselves with any changes to FED-STD 313, no matter how important 
those changes could be to the protection of workers, property and the 
environment at that work site.''
    Councils' Response: Partially concur. The Councils do not think it 
is equitable for the Contractor to comply with all changes to FED-STD 
313 that occur after award for the reasons cited in Councils' response 
to comment 2(a). On the other hand, it is particularly 
important that the Government require Contractors to comply with 
changes to OSHA's HCS because (1) approximately 80 percent of hazardous 
materials fall within the scope of OSHA's HCS; and (2) the government 
must obtain current information via MSDSs for the safety and health of 
government employees in the workplace and to fulfill its obligations 
under certain statutory and Executive order mandates as they relate to 
the HCS. 29 U.S.C. 668(a) requires Federal agencies ``to establish and 
maintain an effective and comprehensive occupational safety and health 
program consistent with the standards. * * *'' Executive Order 12196, 
Occupational safety and health programs for Federal employees, October 
1, 1980, further requires all Federal agencies to comply with all OSHA 
standards, including the HCS.
    The Deputy Associate Solicitor of Occupational Safety and Health 
concluded in a 1985 opinion that private sector entities are not 
required to supply MSDSs to Federal agencies, only to other private 
sector entities. The same conclusion was reached upon an examination of 
the applicable regulations and laws. The HCS at 29 CFR 1910.1200(g)(6) 
and (7) states that it is the responsibility of chemical manufacturers, 
importers, and distributors to provide MSDSs to employers. The 
government is specifically excluded from the definition of employer in 
the enabling legislation (Occupational Safety and Health Act, 29 U.S.C. 
651, et seq.): ``The term ``employer'' means a person engaged in a 
business affecting commerce who has employees, but does not include the 
United States * * *'' (29 U.S.C. 652(5)).
    Therefore, to comply with the requirements of the HCS as do 
employers in the private sector, the government must have the same 
access to information (MSDSs) as private sector employers directly 
regulated under OSHA's HCS. To facilitate government compliance, the 
Councils revised FAR 52.223-3(a) and (c) to accommodate certain changes 
to OSHA's HCS that may occur after contract award. This change to the 
rule, while substantive

[[Page 10120]]

and requiring public comment, should not be viewed as major by industry 
since (1) contractors now must comply with this requirement in the 
private sector, and (2) for pricing purposes, in contrast to changes to 
the entire FED-STD 313, contractors should have earlier insight into 
changes contemplated by OSHA during its rule-making process.
    c. Comment: A new subpart under FAR 23.302 should be added ``to 
require the contracting officer to keep abreast of changes to FED-STD 
313 and modify the contract, as appropriate, to address any 
definitional changes.''
    Councils Response: Do not concur. The functional community, not the 
contracting officer, should be responsible for monitoring FED-STD 313 
changes since they have the technical expertise and the internal 
management system to detect changes although historically changes to 
FED-STD 313 are infrequent.
    d. Comment: FAR 23.301(a)(2) should be changed to read 
``Established additional information on the MSDS required by the 
Government'' to clarify that FED-STD 313 does not establish the 
requirement for MSDSs, but asks for additional information that is 
required by EPA, DoT, and others.''
    Councils' Response: Do not concur. The Councils recognize that the 
regulatory agencies are the original source for the information 
requirements, but FED-STD 313 does establish the MSDS requirement for 
Government contracts.
    e. Comment: The rule should be revised to indicate where the reader 
can obtain FED-STD 313.
    Councils' Response: Concur. The proposed rule had removed the 
address where FED-STD 313 could be purchased. The Councils have added a 
website at FAR 23.301(a)(3) where individuals can obtain a free 
electronic copy.

3. MSDSs/Updated List

    a. Comment: The requirement at FAR 23.302 for the apparently 
successful offeror or quoter to submit MSDSs to the contracting officer 
(CO) should be changed to require two copies, ``one to the PCO for file 
(or ACO) and one for the safety officer,'' to preclude the CO from 
having to copy and redistribute. For the same reason, the respondent 
suggests that two copies of the updated list be provided.
    Councils' Response: Do not concur. The Councils do not recommend 
any change because ``safety officer'' is not always the terminology 
used for the central point of contact but differs among agencies; 
requiring one extra copy would increase the paperwork burden 
unnecessarily on contractors, including small businesses; the Councils 
are not aware of any internal problems with the current procedure; and 
agencies can always supplement the FAR coverage if they deem it 
appropriate.
    b. Comment: The requirement at FAR 52.223-XX(c) to submit MSDSs 
prior to award should be changed to ``within X days after award.'' 
Otherwise, contract award may be held up. Given the ``uncertainties in 
final materials for developmental programs, it will be very difficult, 
if not impossible,'' to require a vendor to submit MSDSs prior to 
contract award.
    Councils' Response: Do not concur. This is not a new requirement 
since it is located in the current FAR at 52.223-3(d). The Councils 
concluded that there should be no changes after examining the 
historical basis for this requirement. The FAR originally had required 
the contractor to submit MSDSs after contract award but at least 5 days 
before delivery of the hazardous material. Because the contractor was 
permitted to provide them after award, certain government users were 
not always obtaining the information timely or at all, as noted in the 
DoD IG Audit Report No. 83-137, Hazardous and Toxic Materials in the 
Department of Defense, dated June 3, 1983. To alleviate this problem, 
DAR Case 1986-002, Safety and Occupational and Health provisions, 
revised the wording to require that the apparently successful offeror 
submit the MSDSs prior to contract award.
    The Councils recognize that there may be situations, especially 
when subcontractors are involved, when the contractor cannot determine 
prior to contract award if the deliverable will be hazardous or contain 
hazardous material. FAR 52.223-3(c)(2) of the proposed rule allows for 
this situation by indicating that the contractor may submit an MSDS 
after award if the contractor later determines that any other hazardous 
material will be delivered under the contract.
    c. Comment: A significant problem with the proposed FAR revision is 
its expansion to situations where original equipment and parts 
manufacturers will be required to prepare, rather than pass on, MSDSs * 
* * the expertise of some contractors does not reside in the 
preparation of the MSDSs.
    Councils' Response: Do not concur. The preparer of the MSDS is the 
manufacturer or importer of the hazardous material. If the prime 
contractor will obtain hazardous material from a subcontractor, then 
the prime contractor is responsible for flowing down this technical 
requirement to the subcontractor.
    The Councils recognize that there may be situations when non-
hazardous chemicals obtained from subcontractors take on different 
chemical characteristics when mixed during the performance period of 
the prime contract. In this situation, the prime contractor is 
responsible for preparing the MSDS, not only because the information is 
needed for the safety and health of its employees in the workplace, but 
also because the information is required by regulatory agencies. The 
FAR and FED-STD 313 are only a means used to enforce the same 
regulatory requirements on contractors under Government contracts that 
are imposed on private sector contracts.
    d. Comment: When the prime contractor obtains the MSDSs from a 
subcontractor, the subcontractor who manufactures the hazardous 
material should be responsible for the accuracy of the MSDS, not the 
prime contractor. In addition, the contractor delivering the aircraft 
has no way of knowing what specific formulations are used by the many 
subtier suppliers. Suppliers are free to switch among the qualified 
products at any time. The contractor will now be required to have the 
subcontractor submit an MSDS with each part, and, quite possibly, 
different MSDSs for the same spare part over the life of the program, 
imposing significant costs and burdens on the subcontractor.
    Councils' Response: Partially concur. The Councils concur that the 
preparer of the MSDS, who may or may not be the contractor furnishing 
the material to the government, is responsible for the accuracy of the 
technical data in the MSDS. This is currently stated in paragraph 3.3 
of FED-STD 313.
    The Councils also agree that one stock number may have multiple 
products, each with a different MSDS, and, therefore a different 
package of MSDSs may be required for each individual aircraft or other 
end item. The Councils view the administration effort to keep track of 
this effort as a contractor management issue with any associated costs 
being passed on to the Government.
    e. Comment: ``The proposed rule could be read to require updates * 
* * of all hazardous materials information previously provided to the 
government customer at the time of initial award for the entire period 
of the contract performance, often many years.''
    Councils' Response: Partially concur. FAR 52.223-3(c)(1) of the 
proposed rule states:

[[Page 10121]]

    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 * * *.''
    The issue centers on the situation when the subcontractor, not the 
prime contractor, is the manufacturer of the hazardous material, and 
therefore the subcontractor is the preparer of the MSDS. The prime 
contractor is concerned that, based on the above language, after 
submission of the MSDS to the government, the prime contractor is 
responsible for submitting a revision should new health hazard 
information necessitate a change to the MSDS. The problem is when the 
prime contract continues for some time after the subcontract is 
completed. In this situation, the prime contractor may not become aware 
of a change. The Councils believe that the respondent has a valid 
point.
    Based on an historical examination of FED-STD 313, the Committee 
concluded that the intent of the language in the FAR (and FED-STD 313) 
was to reflect the requirement of OSHA' HCS (29 CFR 1910.1200(g)(6) and 
(7)), i.e., preparer only provides a revised MSDS upon subsequent 
shipments. Therefore, if the preparer found new health hazard 
information after supplying the material, no action from the preparer 
is required for already delivered quantities, but the preparer would 
need to include the new information in a revised MSDS for any future 
deliveries. If, however, the preparer supplied the wrong information, 
then the preparer has the responsibility to correct that. The prime 
contractor, in turn, would need to furnish a revised MSDS to the 
Government if the prime contractor receives one from the preparer.
    The Councils recommend revising FAR 52.232-3(c)(1) to indicate that 
the contractor shall submit a revised MSDS only if the ``contractor has 
knowledge, or reasonably should have knowledge, of'' certain 
information that would render the MSDS incomplete or inaccurate.
    f. Comment: The government should accept electronic versions of 
MSDSs as an acceptable substitute for paper MSDSs.
    Councils' Response: Partially concur. The FAR currently provides 
that any written information can be provided electronically (see FAR 
2.101 definition of ``In writing,'' ``writing,'' or ``written''). 
Paragraph 4.2.3.3 of FED-STD 313 states that ``electronic transmission 
of the MSDSs may be accepted, depending on the receiving agencies 
capabilities.'' However, the government is not ready at this time to 
accept electronic versions of MSDSs directly into the MSDS repository 
(Hazardous Material Information System (HMIS)) for hazardous materials 
procured by certain Federal agencies, including DoD and GSA. Currently, 
government personnel re-key, from a paper copy of the MSDS, the 
required data elements into a standard format. The HMIS program office 
is currently revising the HMIS so that the system will be able to 
accept and validate MSDSs electronically. The HMIS program office is 
currently requesting input from both the government and industry in 
developing a MSDS standard in eXtensible Markup Language (XML). Once 
this system is in place, revisions to the FAR will be considered. Go to 
https://www.denix.osd.mil/denis/Public/Library/MSDS/HMIS/hmis.html for 
more information on the initiative to develop an MSDS XML standard.

4. Liability/Proprietary Data/Patent Rights

    a. Comment: Agrees with deleting FAR 52.223-3(f) relating to 
liability.
    Councils' Response: Concur. Paragraph (f), as presently written in 
the FAR, and as suggested by one of the respondents, expressly shifts 
liability from the government to the contractor when the government 
acts or fails to act. For instance, it appears that under the current 
FAR coverage, the contractor could be liable for an injury from a 
hazardous material provided under contract with an MSDS, because the 
government failed to act, and did not pass on the MSDS information to 
an employee. The Councils concluded that this interpretation of 
increased contractor liability and responsibility for acts or failure 
to act by the government was not intended, and the paragraph should be 
removed. The rule does not eliminate the contractor's responsibility or 
associated liability to comply with statutes, codes, ordinances and 
regulations, and all other normal responsibilities under the contract. 
The change to this contract clause also does not relieve the contractor 
of liability for any of the contractor's acts or omissions.
    b. Comment: Do not advocate diluting the importance of this 
provision (FAR 52.223-3(f)) in our contracts. Suggest the following 
language:
    ``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 personnel 
(civilian and military), the environment, contractor, or subcontractor 
personnel or property.''
    Councils' Response: Do not concur. See the Councils' response to 
comment 4a.
    c. Comment: Paragraph (f) should not be deleted since it placed 
responsibility or liability upon the contractor * * * if those 
responsibilities are not addressed elsewhere, they should be addressed 
in 52.223-3. The following language is suggested:
    ``If any act or failure to act by the government results in the 
contractor being unable to comply with the requirements of this clause, 
then the contractor shall be relieved of any responsibility or 
liability for the safety of government, contractor, or subcontractor 
personnel or property.''
    Councils' Response: Do not concur for the reasons cited in the 
Councils' response to comment 4a. The Councils also do not agree with 
adding the suggested language. First, there are remedies in the 
contract for situations when government action or inaction results in 
the contractor being unable to comply with the contract. Second, the 
words offered could be misinterpreted as suggesting that action or 
inaction by the government relieves the contractor of all 
responsibility or liability under the contract.
    d. Comment: FAR policy for proprietary and trade secret information 
should be conformed to other Federal regulations.
    Councils' Response: Partially concur. No specifics were provided. 
The Councils concur that FAR policy should be consistent with other 
regulations but the Councils also believe that this issue has already 
been addressed in the proposed rule by the language added at FAR 
23.301(c).
    e. Comment: The rule should be changed to state ``that any items 
given that have patent or protected data be recognized as so (sic) and 
given protection so that it is not given out under a FOIA request. 
Without such protection, the clause would contradict FAR part 27.1 and 
would leave the government liable for violation of patent or data 
rights.''
    Councils' Response: Do not concur. The Councils are not clear as to 
what concerns are being raised by the respondent but the rule is 
consistent with the FAR (including FAR 27.1), OSHA and EPA regulations, 
and the Freedom of Information Act. FAR 23.301(c) of the rule provides 
policy as to the treatment of trade secrets, etc., especially in times 
of emergency when limited release of the data is required.

[[Page 10122]]

5. Other Comments

    a. Comment: The FAR and DFARS coverage ``should be coordinated and 
be the same since the DFARS does not currently modify the FAR where 
MSDS is furnished.''
    Councils' Response: Partially concur. The respondent did not 
provide specifics as to how the DFARS should be modified. The Councils 
do not agree that the DFARS coverage should be the same as the FAR, but 
do agree that if DoD needs to further supplement the FAR relating to 
MSDSs, a separate DFARS case will be opened.
    b. Comment: In FAR 23.302, the phrase ``The contracting officer 
must * * *'' should be changed to ``The contracting officer shall * * 
*.''
    Councils' Response: Concur.
    c. Comment: The phrase ``even if the contractor is not the actual 
manufacturer'' should be deleted at 52.223-XX(c)(1) and 52.223-3(c)(2). 
It ``is not needed based on the prior part of each sentence.''
    Councils' Response: Do not concur. The sentence in the contract 
clause states that the contractor must submit a MSDS if any material to 
be delivered under this contract is hazardous, even if the Contractor 
is not the actual manufacturer. This phrase is in the current FAR at 
52.232-3(d). When the proposed rule established a separate solicitation 
provision at FAR 52.223-XX, the phrase was retained in both the new 
solicitation provision and the contract clause at FAR 52.223-3. The 
prime contractor is responsible for all the requirements in the 
contract. In the situations where a subcontractor is the actual 
manufacturer, and therefore preparer of the MSDS, the prime contractor 
is responsible for flowing down the requirement to the subcontractor. 
Although this phrase may not be necessary, it is not incorrect. The 
Councils have decided to retain the phrase after examining its 
historical basis. The phrase was added under DAR Case 1986-002 to 
emphasize this basic concept because at that time government personnel 
were experiencing difficulty in obtaining the MSDS, especially when a 
subcontractor was the manufacturer of the hazardous material. Removing 
this phrase at this point may be erroneously perceived as a change in 
policy.
    d. Comment: The following paragraph FAR 23.301(b)(2)(iv) should be 
added to the language in the proposed rule:
    (iv) ``Proper disposal of hazardous materials (waste) to protect 
our environment.''
    Councils' Response: Do not concur. The concept that MSDSs are 
required for proper disposal of hazardous materials is already covered 
under FAR 23.301(b)(1) of the proposed rule.
    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 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

    We estimate the annual total burden hours as follows:
    Burden hours associated with the requirements of FAR 52.223-XX, 
Hazardous Materials. The provision requires all offerors to identify 
and list all hazardous materials that it would deliver under the 
contract meeting the stated criteria, but would require MSDSs only from 
the apparently successful offeror. For the majority of respondents, the 
information required is associated with the OSHA regulations and, 
therefore, will be readily available and not need to be compiled.
     Respondents: 37,000.
     Responses per respondent: 1.56.
     Total annual responses: 57,860.
     Preparation hours per response: .255.
     Total response burden hours: 14,773.
    Burden hours associated with the requirements of FAR 52.223-3, 
Hazardous Materials Identification and Material Safety Data. This 
clause requires the contractor to notify and submit revised MSDSs 
whenever a change in the composition of an item renders incomplete or 
inaccurate previously submitted MSDSs. For civilian agencies, 
additional copies are required in advance or with each shipment or in 
or on each shipping container. This second proposed rule requires the 
contractor to submit a new or revised MSDS if (1) there are changes to 
the OSHA definition of Hazardous Chemical that occur after contract 
award, or (2) The contractor has knowledge or reasonably should have 
knowledge of new information that renders the MSDS incomplete or 
inaccurate. Again, for the majority of respondents, the information 
required will be readily available and would not need to be compiled 
and much of the burden is associated primarily with the additional 
copies of MSDSs.
     Respondents: 10,000 (subset of total respondents identified 
above).
     Responses per respondent: 22.
     Total annual responses: 220,000.
     Preparation hours per response: .05.
     Total response burden hours: 11,000.

D. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than May 3, 2004, 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.
    Requesters may obtain a copy of the justification from the General 
Services

[[Page 10123]]

Administration, FAR Secretariat (MVA), 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: February 27, 2004.
Laura Auletta,
Director, Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA propose that 48 CFR parts 23 and 52 
be amended as below:
    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, CONSERVATION, 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 No. 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 No. 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; and
    (3) Can be obtained via the Internet at: http://www.dsp.dla.mil 
under ``Online Specs.'' Select ``Quick Search'' and enter FED-STD for 
``Document ID'' and 313 for ``Document Number.''.
    (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 information, 
such as--
    (i) All hazards to which they may be exposed;
    (ii) Signs and symptoms of exposure and appropriate emergency 
treatment; and
    (iii) Proper conditions and appropriate protective measures for 
safe use and handling.
    (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 shall--
    (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 No. 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.

 
                                                         Identification
   Hazardous Materials  (If none, insert ``None'')            Nos.
 
                                                       .................
                                                       .................
                                                       .................
 

    (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 No. 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 No. 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, except that when the 
term in Federal Standard No. 313 references a chemical

[[Page 10124]]

defined by the Occupational, Safety and Health Administration (OSHA) 
as hazardous in 29 CFR 1910.1200, Hazard communication, the term 
includes any changes to the OSHA regulation definition that occur 
after contract award.
    (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) For any MSDS previously submitted under FAR 52.223-XX or 
this clause, promptly notify and submit a revised MSDS to the 
Contracting Officer whenever the Contractor has knowledge, or 
reasonably should have knowledge, of--
    (i) New information on the health hazards of a chemical or ways 
to protect the employee that renders the MSDS incomplete or 
inaccurate; or
    (ii) A change in the composition of an item(s) that renders the 
MSDS incomplete or inaccurate.
    (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) 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. 04-4749 Filed 3-2-04; 8:45 am]
BILLING CODE 6820-EP-U