Federal Acquisition Regulation; Ozone Executive Order

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DEPARTMENT OF DEFENSE

48 CFR Parts 23 and 52

[FAC 90-39; FAR Case 93-307; Item XII]

RIN 9000-AG42

Federal Acquisition Regulation; Ozone Executive Order

AGENCIES: Department of Defense (DOD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule adopted as final with changes.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council have agreed to convert the interim rule

published at 60 FR 28500, May 31, 1995, to a final rule with changes to

amend the Federal Acquisition Regulation (FAR) to provide policy for

the acquisition of items that contain or are manufactured with ozone-

depleting substances. This regulatory action was not subject to Office

of Management and Budget review under Executive Order 12866, dated

September 30, 1993, and is not a major rule under 5 U.S.C. 804.

EFFECTIVE DATE: June 20, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. Ralph De Stefano at (202) 501-1758

in reference to this FAR case. For general information, contact the FAR

Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-

4755. Please cite FAC 90-39, FAR case 93-307.

SUPPLEMENTARY INFORMATION:

A. Background

The Environmental Protection Agency (EPA) promulgated 40 CFR Part

82, Subpart D, to satisfy EPA's obligation under Section 613, Title VI

of the Clean Air Act Amendments of 1990. The EPA rule requires each

department, agency, and instrumentality of the United States to conform

its procurement regulations to the policies and requirements of Title

VI of the Clean Air Act and to maximize the substitution of safe

alternatives for ozone-depleting substances as identified under Section

612 of the Act. The EPA rule complements Executive Order 12843,

Procurement Requirements and Policies for Federal Agencies for Ozone-

Depleting Substances (58 FR 21881, April 23, 1993). Both the Executive

Order and the EPA rule require that new contracts provide that any

acquired products which contain or are manufactured with ozone-

depleting substances be labeled in the manner and to the extent

required by 42 U.S.C. 7671j (b), (c), and (d) and 40 CFR Part 82,

Subpart E. On May 31, 1995 (60 FR 28500), the Civilian Agency

Acquisition Council and the Defense Acquisition Regulations Council

published an interim rule to implement the EPA regulations and the

Executive Order.

This final FAR rule contains revisions resulting from public

comments received in response to the interim rule. Several respondents

questioned whether the interim rule went beyond the labeling

requirements in Section 611 of the 1990 amendments to the Clean Air Act

(42 U.S.C. 7671j) and its implementing EPA regulations at 40 CFR. This

confusion has been resolved by replacing the definitions of ``Class I

substance'' and ``Class II substance'' with a definition of ``ozone-

depleting substance'', and by revising the clause at 52.223-11 to

clarify that labeling shall be in accordance with 42 U.S.C. 7671j and

40 CFR Part 82. The intent of the rule is to stay within the bounds of

the Clean Air Act and the EPA regulations.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to

this final rule and a Final Regulatory Flexibility Analysis has been

performed. A copy of the analysis may be obtained from the FAR

Secretariat.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to

the FAR do not impose recordkeeping or information collection

requirements, or collections of information from offerors, contractors,

or members of the public which require the approval of the Office of

Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 23 and 52

Government procurement.

Dated: June 4, 1996.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Interim Rule Adopted as Final With Changes

Accordingly, the interim rule amending 48 CFR Parts 23 and 52 which

was published at 60 FR 28500, May 31, 1995, is adopted as final with

changes 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, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-

FREE WORKPLACE

23.800 [Amended]

2. Section 23.800 is amended by removing the last sentence.

3. Section 23.802 is revised to read as follows:

23.802 Definition.

Ozone-depleting substance means--

(a) Any substance designated as Class I by EPA (40 CFR part 82),

including but not limited to chlorofluorocarbons, halons, carbon

tetrachloride, and methyl chloroform; or

(b) Any substance designated as Class II by EPA (40 CFR part 82),

including but not limited to hydrochlorofluorocarbons.

23.803 [Amended]

4. Section 23.803 is amended in paragraph (b)(2) by removing the

period and inserting ``, except in the case of Class I substances being

used for specified essential uses, as identified under 40 CFR

82.4(r).''

5. Section 23.804 is revised to read as follows:

23.804 Contract clauses.

Except for contracts to be performed outside the United States, its

possessions, and Puerto Rico, the contracting officer shall insert the

clause at:

(a) 52.223-11, Ozone-Depleting Substances, in solicitations and

contracts for ozone-depleting substances or for supplies that may

contain or be manufactured with ozone-depleting substances.

(b) 52.223-12, Refrigeration Equipment and Air Conditioners, in

solicitations and contracts for services when the contract includes the

maintenance, repair, or disposal of any equipment or appliance using

ozone-depleting substances as a refrigerant, such as air conditioners,

including motor vehicles, refrigerators, chillers, or freezers.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

6. Section 52.223-11 is revised to read as follows:

52.223-11 Ozone-Depleting Substances.

-As prescribed in 23.804(a), insert the following clause:

Ozone-Depleting Substances (Jun 1996)

-(a) Definitions. Ozone-depleting substance, as used in this

clause, means any substance designated as Class I by the

Environmental Protection Agency (EPA) (40 CFR Part 82),

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including but not limited to chlorofluorocarbons, halons, carbon

tetrachloride, and methyl chloroform; or any substance designated as

Class II by EPA (40 CFR Part 82), including but not limited to

hydrochlorofluorocarbons.

(b) The Contractor shall label products which contain or are

manufactured with ozone-depleting substances in the manner and to

the extent required by 42 U.S.C. 7671j (b), (c), and (d) and 40 CFR

Part 82, Subpart E, as follows:

``WARNING: Contains (or manufactured with, if applicable)

*, a substance(s) which harm(s) public health and environment by

destroying ozone in the upper atmosphere.''----------------------------

* The Contractor shall insert the name of the substance(s).

(End of clause)

[FR Doc. 96-14527 Filed 6-19-96; 8:45 am]

BILLING CODE 6820-EP-P