Federal Acquisition Regulation; Federal Compliance With Right-To- Know Laws and Pollution Prevention Requirements

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 11, 23, and 52

[FAC 97-04; FAR Case 92-054B; Item II]

RIN 9000-AH39

Federal Acquisition Regulation; Federal Compliance With Right-To-

Know Laws and Pollution Prevention Requirements

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 adopt as final, with

changes, the interim rule published in the Federal Register at 62 FR

12690, March 17, 1997, as Item V of Federal Acquisition Circular 90-46.

The rule amends the Federal Acquisition Regulation (FAR) to implement

Executive Order (E.O.) 12856 of August 3, 1993, ``Federal Compliance

With Right-To-Know Laws and Pollution Prevention Requirements''. This

regulatory action was not subject to Office of Management and Budget

(OMB) review under E.O. 12866, dated September 30, 1993, and is not a

major rule under 5 U.S.C. 804.

EFFECTIVE DATE: April 24, 1998.

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. Paul Linfield, Procurement Analyst, at (202) 501-

1757. Please cite FAC 97-04, FAR case 92-054B.

SUPPLEMENTARY INFORMATION:

A. Background

An interim rule with request for public comment was published on

March 17, 1997 (62 FR 12690), to implement E.O. 12856 of August 3,

1993, ``Federal Compliance With Right-To-Know Laws and Pollution

Prevention Requirements''. E.O. 12856 requires that Federal facilities

comply with the planning and reporting requirements of the Pollution

Prevention Act of 1990 (PPA) (42 U.S.C. 13101-13109) and the Emergency

Planning and Community Right-To-Know Act of 1986 (EPCRA) (42 U.S.C.

11001-11050). As a result of the one public comment received in

response to the interim rule, FAR 23.1004(b) and 52.223-5(b) have been

revised to clarify the obligations of Federal facilities to comply with

the reporting and emergency planning requirements of the PPA and the

EPCRA.

B. Regulatory Flexibility Act

A Final Regulatory Flexibility Analysis (FRFA) has been prepared

and will be provided to the Chief Counsel for Advocacy of the Small

Business Administration. A copy of the FRFA may be obtained from the

FAR Secretariat. The analysis is summarized as follows:

No comments were received in response to the Initial Regulatory

Flexibility Analysis.

The rule will apply to all contractors that use certain

hazardous or toxic substances in the performance of contracts on a

Federal facility. It is estimated that there are approximately 6,100

small business contractors to which the rule will apply. Such

contractors must provide any information necessary to enable the

Federal facility to fulfill its reporting requirements under EPCRA,

PPA, and E.O. 12856. The information collection would be prepared by

contractor employees using records that the contractor is required

to maintain under existing law and regulation. No special

professional skills are needed for preparation of the required

information.

There are no known alternatives which would accomplish the

objectives of the PPA, EPCRA, and E.O. 12856. The rule implements an

explicit requirement of E.O. 12856 to provide a contract clause to

collect information on the use of specific substances from certain

contractors. Any alternative to the final rule that lessens the

burden on small entities would fail to comply with E.O. 12856.

C. Paperwork Reduction Act

The final rule imposes no new information collection requirements

that require approval of OMB under 44 U.S.C. 3501, et seq. The

information collection requirements imposed by the interim rule have

been approved by OMB through May 31, 2000, under OMB Control Number

9000-0147.

List of Subjects in 48 CFR Parts 1, 11, 23, and 52

Government procurement.

Dated: February 13, 1998.

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 62 FR 12696, March 17, 1997, is adopted as a

final rule with the following changes:

1. The authority citation for 48 CFR Parts 1, 11, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

2. Section 1.106 is amended in the table following the introductory

paragraph by adding the following entry:

1.106 OMB approval under the Paperwork Reduction Act.

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OMB Control

FAR segment No.

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* * * * *

52.223-5................................................... 9000-0147

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PART 11--DESCRIBING AGENCY NEEDS

11.001 [Amended]

3. Section 11.001 is amended by removing the definition of ``New''.

PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-

FREE WORKPLACE

23.1004 [Amended]

4. Section 23.1004 is amended at the end of paragraph (b) by

removing the period and inserting ``, and other agency obligations

under E.O. 12856.''.

[[Page 9052]]

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.213-4 [Amended]

5. Section 52.213-4 is amended by revising the date of the clause

to read ``(APR 1998)''; and in paragraph (b)(1)(vii) of the clause by

revising ``(MAR 1997)'' to read ``(APR 1998)''.

6. Section 52.223-5 is amended by revising the clause date and

paragraph (b) to read as follows:

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

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Pollution Prevention and Right-to-Know Information (Apr 1998)

* * * * *

(b) The Contractor shall provide all information needed by the

Federal facility to comply with the emergency planning reporting

requirements of Section 302 of EPCRA; the emergency notice

requirements of Section 304 of EPCRA; the list of Material Safety

Data Sheets required by Section 311 of EPCRA; the emergency and

hazardous chemical inventory forms of Section 312 of EPCRA; the

toxic chemical release inventory of Section 313 of EPCRA, which

includes the reduction and recycling information required by Section

6607 of PPA; and the toxic chemical reduction goals requirements of

Section 3-302 of Executive Order 12856.

(End of clause)

[FR Doc. 98-4293 Filed 2-20-98; 8:45 am]

BILLING CODE 6820-EP-P