[Weekly Compilation of Presidential Documents Volume 31, Number 32 (Monday, August 14, 1995)]
[Pages 1397-1400]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 12969--Federal Acquisition and Community Right-To-Know

August 8, 1995

    The Emergency Planning and Community Right-to-Know Act of 1986 (42 
U.S.C. 11001-11050) (``EPCRA'') and the Pollution Prevention Act of 1990 
(42 U.S.C. 13101-13109) (``PPA'') established programs to protect public 
health and the environment by providing the public with important 
information on the toxic chemicals being released into the air, land, 
and water in their communities by manufacturing facilities.
    The Toxics Release Inventory (``TRI'') established pursuant to 
section 313(j) of EPCRA, 42 U.S.C. 11023(j), based on information 
required to be reported under section 313 of EPCRA and section 6607 of 
PPA, 42 U.S.C. 13106, provides the public, industry, and Federal, State, 
and local governments with a basic tool for making risk-based decisions 
about management and control of toxic chemicals, that can have 
significant adverse effects on human health and the environment. TRI 
data allow the public, industry, and government to gauge the progress of 
industry and government efforts to reduce toxic chemical wastes.
    Sharing vital TRI information with the public has provided a strong 
incentive for reduction in the generation, and, ultimately, release into 
the environment, of toxic chemicals. Since the inception of the TRI 
program, reported releases to the environment under TRI have decreased 
significantly.
    The efficiency of the Federal Government is served when it purchases 
high quality supplies and services that have been produced with a 
minimum impact on the public health and environment of communities 
surrounding government contractors. Savings associated with reduced raw 
materials usage, reduced use of costly, inefficient end-of-pipeline 
pollution controls, and reduced liability and remediation costs from 
worker and community claims all serve to increase the economic and 
efficient provision of essential supplies and services to the 
government. As a result of TRI reporting, many manufacturers have 
learned of previously unrecognized significant efficiencies and cost 
savings in their production processes.
    The Federal Government's receipt of timely and quality supplies and 
services is also served by the general enhancement of relations between 
government contractors and the communities in which they are situated, 
as well as the cooperative working relationship between employers and 
employees who may be subject to exposure to toxic materials.
    Information concerning chemical release and transfer can assist the 
government to purchase efficiently produced, lower cost, and higher 
quality supplies and services that also have a minimum adverse impact on 
community health and the environment.
    Now, Therefore, to promote economy and efficiency in government 
procurement of supplies and services, and by the authority vested in me 
as President by the Constitution and the laws of the United States of 
America, including EPCRA, 42 U.S.C. 11001 et seq., PPA, 42 U.S.C. 13101 
et seq., 40 U.S.C. 471 and 486(a), and 3 U.S.C. 301, it is hereby 
ordered as follows:
    Section 1. Policy. It is the policy of the executive branch in 
procuring supplies and services that, to ensure the economical and 
efficient procurement of Federal Government contracts, Federal agencies, 
to the greatest extent practicable, shall contract with companies that 
report in a public man- 

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ner on toxic chemicals released to the environment.
    Sec. 2. Definitions. 2-201. All definitions found in EPCRA and PPA 
and implementing regulations are incorporated into this order by 
reference, with the following exceptions for purposes of this order.
    2-202. ``Federal agency'' means an ``Executive agency,'' as defined 
in 5 U.S.C. 105. For purposes of this order, military departments, as 
defined in 5 U.S.C. 102, are covered under the auspices of the 
Department of Defense.
    2-203. ``Acquisition'' means the acquiring by contract with 
appropriated funds of supplies or services (including construction) by 
and for the use of the Federal Government through purchase or lease, 
whether the supplies or services are already in existence or must be 
created, developed, demonstrated, and evaluated. Acquisition begins at 
the point when the Federal department or agency needs are established 
and includes the description of requirements to satisfy agency needs, 
solicitation and selection of sources, award of contracts, contract 
financing, contract performance, contract administration, and those 
technical and management functions directly related to the process of 
fulfilling agency needs by contract.
    2-204. ``Toxic chemical'' means a substance on the list described in 
section 313(c) of EPCRA, 42 U.S.C. 11023(c), as it exists on the 
effective date of this order.
    2-205. ``Administrator'' means the Administrator of the United 
States Environmental Protection Agency (``EPA'').
    2-206. ``Federal contractor'' means an entity that has submitted the 
successful bid or proposal in response to a competitive acquisition 
solicitation.
    Sec. 3. Applicability. 3-301. Each Federal agency shall, to the 
maximum extent practicable, include in contract solicitations as an 
eligibility criterion for the award of competitive acquisition contracts 
expected to equal or exceed $100,000 with the Federal contractors 
described in subsection 3-302, the requirement that such contractors 
must file (and continue to file for the life of the contract) a Toxic 
Chemical Release Form (``Form R''), as described in sections 313 (a) and 
(g) of EPCRA, 42 U.S.C. 11023 (a) and (g), for each toxic chemical 
manufactured, processed, or otherwise used by the Federal contractor at 
a facility, as described in section 313 of EPCRA, 42 U.S.C. 11023, and 
section 6607 of PPA, 42 U.S.C. 13106.
    3-302. The Federal contractors subject to the eligibility criterion 
described in subsection 3-301 above are those who currently report to 
the TRI pursuant to section 313(b)(1)(A) of EPCRA, 42 U.S.C. 
11023(b)(1)(A), that is, manufacturers having Standard Industrial 
Classification Code (``SIC'') designations of 20 through 39 (as in 
effect on July 1, 1985).
    3-303. Each Federal agency shall find that a prospective Federal 
contractor has satisfied the requirement in subsection 3-301 if the 
contractor certifies in a solicitation that it:
    (a) Does not manufacture, process, or otherwise use any toxic 
chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c);
    (b) Does not have 10 or more full-time employees as specified in 
section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A);
    (c) Does not meet the reporting thresholds established under section 
313(f) of the EPCRA, 42 U.S.C. 11023(f); or
    (d) Has complied fully with the reporting requirements of subsection 
4-404.
    3-304. Each Federal agency shall require the filings described in 
subsection 3-301 above to include information on all chemicals 
identified by the Administrator pursuant to section 313(c) of EPCRA, 42 
U.S.C. 11023(c), as of the date of this order.
    3-305. Each Federal agency may amend existing contracts, to the 
extent permitted by law and where practicable, to require the reporting 
of information specified in subsection 3-301 above.
    3-306. As consistent with Title IV of the Federal Acquisition 
Streamlining Act of 1994 (FASA), Public Law 103-355, and section 4(11) 
of the Office of Federal Procurement Policy Act, 41 U.S.C. 403(11), the 
requirements of this order are only applicable to competitive 
acquisition contracts expected to equal or exceed $100,000.
    Sec. 4. Implementation. 4-401. Not later than September 30, 1995, 
the EPA shall publish in the Federal Register guidance for com- 

[[Page 1399]]

pliance with this order, including applicability with respect to 
subcontractors.
    4-402. Within 30 days of the issuance of the guidance provided for 
in subsection 4-401 above, each Federal agency shall include in all 
acquisition solicitations issued on or after the effective date of this 
order, the provisions necessary to effect this order.
    4-403. For all contracts expected to exceed $500,000, each Federal 
agency shall consult with the Administrator or the Administrator's 
designee when the agency believes it is not practicable to include the 
eligibility requirement of section 3-301 in the contract solicitation or 
award.
    4-404. Each Federal agency shall require each Federal contractor 
designated in subsection 3-302 above to:
    (a) Have included in its response to the contract solicitation a 
certification, as specified in the guidelines published pursuant to 
subsection 4-401 of this order, that it will (if awarded the contract) 
comply with the requirements of subsection 3-301; and
    (b) File with the Administrator and each appropriate State pursuant 
to section 313(a) of EPCRA, 42 U.S.C. 11023(a), the information required 
by subsection 3-301, beginning on the next July 1 after the date on 
which the contract is awarded.
    4-405. Information submitted to the EPA pursuant to subsection 4-
404(b) above shall be subject to the trade secret protections provided 
by section 322 of EPCRA, 42 U.S.C. 11042. Information that is not trade 
secret shall be made available to the public pursuant to sections 313 
(h) and (j) of EPCRA, 42 U.S.C. 11023 (h) and (j). The Administrator is 
directed to review reports submitted pursuant to this order to determine 
the appropriateness of any claims for trade secret protection.
    4-406. When the Administrator determines that a Federal contractor 
has not filed the necessary forms or complete information as required by 
subsection 3-301 above, the Administrator or the Administrator's 
designee may recommend termination of the contract for convenience. The 
Administrator shall transmit that recommendation to the head of the 
contracting agency, and that agency shall consider the recommendation 
and determine whether to terminate the contract. In carrying out this 
responsibility, the Administrator may investigate any subject Federal 
contractor to determine the adequacy of compliance with the provisions 
of this order and the Administrator's designee may hold such hearings, 
public or private, as the Administrator deems advisable to assist in the 
Administrator's determination of compliance.
    4-407. Each contracting agency shall cooperate with the 
Administrator and provide such information and assistance as the 
Administrator may require in the performance of the Administrator's 
functions under this order.
    4-408. Upon request and to the extent practicable, the Administrator 
shall provide technical advice and assistance to Federal agencies in 
order to assist in full compliance with this order.
    Sec. 5. General Provisions. 5-501. The requirements of this order 
shall be implemented and incorporated in acquisition regulations, 
including the Federal Acquisition Regulations (FAR), within 90 days 
after the effective date of this order.
    5-502. This order is not intended, and should not be construed, to 
create any right or benefit, substantive or procedural, enforceable at 
law by a party against the United States, its agencies, its officers, or 
its employees. This order is not intended, however, to preclude judicial 
review of final agency decisions in accordance with the Administrative 
Procedure Act, 5 U.S.C. 701 et seq.
    5-503. This order shall be effective immediately and shall continue 
to be in effect until revoked.
                                            William J. Clinton
The White House,
August 8, 1995.

[Filed with the Office of the Federal Register, 5:01 p.m., August 8, 
1995]

Note: This Executive order was published in the Federal Register on 
August 10.

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