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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: August 29, 2002

SUBJECT: Federal Acquisition Regulation (FAR); Implementation of Executive Order 13148, Greening the Government through Leadership in Environmental Management

SOURCE: Federal Register, August 29, 2002, Vol. 67, No. 168, page 55669

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Proposed Rule

SYNOPSIS: It is proposed that Federal Acquisition Regulation (FAR) Part 23, Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace, and the related clauses in FAR 52.223, be amended to implement Executive Order (EO) 13148 of April 21, 2000, Greening the Government through Leadership in Environmental Management.

EDITOR'S NOTE: For more on EO 13148, see the April 26, 2000, FEDERAL CONTRACTS DISPATCH "'Greening the Government' Executive Orders."

DATES: Comments on the proposed rule must be submitted no later than October 28, 2002.

ADDRESSES: Submit comments to General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405, or by e-mail to farcase.2000-005@gsa.gov. Cite FAR case 2000-005 in all correspondence related to this proposed rule.

FOR FURTHER INFORMATION CONTACT: Laura Smith at 202-501-7279.

SUPPLEMENTAL INFORMATION: On April 21, 2000, President Clinton signed EO 13148, which directed each federal agency to make sure "that all necessary actions are taken to integrate environmental accountability into agency day-to-day decisionmaking and long-term planning processes, across all agency missions, activities, and functions." It provided requirements and goals for agencies related to environmental management and compliance; right-to-know and pollution prevention; release reduction of toxic chemicals; use reduction of toxic chemicals, hazardous substances, and other pollutants; and reduction in ozone-depleting substances. Also, it revoked the superseded EO 12843 of April 21, 1993, Procurement Requirements and Policies for Federal Agencies for Ozone-Depleting Substances; EO 12856 of August 3, 1993, Federal Compliance with Right-To-Know Laws and Pollution Prevention Requirements; and EO 12969 of August 8, 1995, Federal Acquisition and Community Right-To-Know.

This proposed rule would make the following changes:

• References to EOs 12843, 12856, and 12969 would be replaced by references to EO 13148 in the following:
  
  
  • Paragraphs (d), (e), and (f) of FAR 23.702, Authorities (one reference to EO 13148 would take the place of the references to the three EOs in those three paragraphs)
    
    
  • Paragraph (b) of FAR 23.801, Authorities
    
    
  • Paragraph (b)(1) of FAR 23.803, Policy
    
    
  • FAR 23.901, Purpose
    
    
  • Paragraphs (a) and (d) of FAR 23.906, Requirements (which would be redesignated as FAR 23.905 in this proposed rule)
    
    
  • FAR 23.1001, Policies (which would be retitled "Authorities," and the current text would become paragraph (c))
    
    
  • Paragraphs (a) and (b) of FAR 23.1004, Requirements
    
    
  • Paragraphs (a) and (b) of FAR 52.223-5, Pollution Prevention and Right-to-Know Information (which would be redesignated as paragraphs (b) and (c), respectively)
    
    
  • Paragraph (a) of FAR 52.223-13 Certification of Toxic Chemical Release Reporting
  
  
• FAR Subpart 23.9, Toxic Chemical Release Reporting, would be revised as follows:
  
  
  • The title of FAR Subpart 23.9 would be changed to "Contractor Compliance with Toxic Chemical Release Reporting."
    
    
  • Paragraph (b) of FAR 23.902, General, which addresses the Emergency Planning and Community Right-to-Know Act of 1986, would have the following sentence added: "See EPA's website at http://www.epa.gov/tri for guidance."
    
    
  • FAR 23.904, Definition, which contains the definition for "toxic chemicals," would be removed. A new FAR 23.001, Definition, would include the following: "Toxic chemical, as used in this part, means a chemical or chemical category listed in 40 CFR 372.65." Because of the removal of FAR 23.904, FAR 23.905, 23.906, and 23.907 would be redesignated as FAR 23.904, 23.905, and 23.906, respectively.
    
    
  • Paragraph (a) of FAR 23.906, Requirements (redesignated as FAR 23.905), addresses exceptions to the requirement that the Toxic Chemical Release Inventory Form (Form R) be filed, and subparagraph (a)(iv) exempts offerors that "do not fall within Standard Industrial Classification Code (SIC) designations 20 through 39 or their corresponding North American Industrial Classification System (NAICS) sectors 31 through 33..." To the group of industries that must file (that is, SIC Major Groups 20 through 39) are added the following:
    
    
    • Major Group 10, Metal Mining (except SIC 1011, Iron Ores; SIC 1081, Metal Mining Services; and SIC 1094, Uranium-Radium-Vanadium Ores)
      
      
    • Major Group 12, Coal Mining (except SIC 1241, Coal Mining Services)
      
      
    • SIC 4911, Electric Services; SIC 4931, Electric and Other Services Combined; or SIC 4939, Combination Utilities, Not Elsewhere Classified (limited to facilities that combust coal and/or oil for generating power)
      
      
    • SIC 4953, Refuse Systems (limited to facilities regulated under the Resource Conservation and Recovery Act (42 U.S.C. 6921, et seq.))
      
      
    • SIC 5169, Chemicals and Allied Products, Not Elsewhere Classified; SIC 5171, Petroleum Bulk Stations and Terminals; or SIC 7389, Business Services, Not Elsewhere Classified (limited to facilities primarily engaged in solvent recovery services on a contract or fee basis)
    
    (EDITOR'S NOTE: The related clauses at FAR 52.223-13, Certification of Toxic Chemical Release Reporting, and FAR 52.223-14, Toxic Chemical Release Reporting, would be revised to reflect these additional industries. NAICS codes will replace SIC codes in FAR Subpart 23.9, FAR 52.223-13, and FAR 52.223-14 once the NAICS conversion for the Toxics Release Inventory program is complete.)
  
  
• FAR Subpart 23.10, Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements, would be revised as follows:
  
  
  • FAR 23.1000, Scope, would be added, which would state, "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."
    
    
  • FAR 23.1001, Purpose, would be retitled "Authorities," and to it would be added 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).
    
    
  • FAR 23.1003, Definition, would be revised to add the following definition: "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."
    
    
  • Paragraph (b) of FAR 23.1004, Requirements, requires contractors to provide information for the federal agency to comply with the emergency planning and toxic release reporting requirements of EPCRA, PPA, and EO 12856 (which would be changed to EO 13148). To this would be added that contractors must provide information for the federal agency to comply with "toxic chemical, priority chemical, and hazardous substance release and use reduction goals of Sections 502 and 503 of Executive Order 13148; and requirements for EMSs and FCAs if the place of performance is at a federal facility designated by the agency."
    
    
  • FAR 23.1005, Contract Clause, would be revised to require the use of new Alternate I "if the contract provides for contractor (1) operation or maintenance of a federal facility at which the agency has implemented an EMS; or (2) activities and operations -- (i) to be performed at a government-operated federal facility that has implemented an EMS; and (ii) that the agency has determined are covered within the EMS." In addition, FAR 23.1005 would require the use of new Alternate II if "(1) the contract provides for contractors to conduct activities on a federal facility; and (2) the agency has determined that the contractor activities should be included within the FCA."
  
  
• FAR 52.223-5, Pollution Prevention and Right-to-Know Information, would be revised to:
  
  
  • Add the definitions of "priority chemical" from revised FAR 23.1003, and "toxic chemical" from new FAR 23.001, as new paragraph (a).
    
    
  • Add the following as Alternate I for use when specified in revised FAR 23.1005: "(c)(7) The environmental management system as described in Section 401 of E.O. 13148." Alternate I would add the EMS information to the list of information that contractors must provide the government (current paragraph (b) and redesignated paragraph (c).
    
    
  • Add the following as Alternate II for use when specified in revised FAR 23.1005: "(c)(7) The facility compliance audits as described in Section 402 of E.O. 13148." As with Alternate I, this would add to the list of information that contractors must provide the government. (EDITOR'S NOTE: If both Alternate I and Alternate II are specified, Alternate II's (c)(7) becomes (c)(8).)

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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