[Federal Register Volume 67, Number 3 (Friday, January 4, 2002)]
[Proposed Rules]
[Pages 632-634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-117]
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Part II
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. 67, No. 3 / Friday, January 4, 2002 /
Proposed Rules
[[Page 632]]
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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 the language that
provides policies and procedures for contractor submission of Material
Safety Data Sheets (MSDSs).
DATES: Interested parties should submit comments in writing on or
before March 5, 2002 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
The Occupational Safety and Health Act of 1970 (OSHA) and the
Federal Hazard Communication Standard (29 CFR 1910.1200) provide
protection for most of this nation's employees against the hazards of
exposure to domestically produced or imported chemicals. This
protection is provided by requiring the manufacturer or importer of
chemicals to label their products and to develop and distribute
detailed MSDSs that evaluate and discuss the impact of hazardous
materials used in the nation's workplaces. The manufacturer or importer
is required to provide a copy of the MSDS with initial shipments of the
product and whenever revisions to the product require revising the
MSDS. OSHA excludes public sector employees from the protection
provided by the Federal Hazard Communication Standard. FED-STD 313 was
originally developed to extend to Federal employees the protection
provided by OSHA laws and regulations to private sector employees.
The current Federal Standard is FED-STD-313D, Material Safety Data,
Transportation Data and Disposal Data for Hazardous Materials Furnished
to Government Activities, dated April 3, 1996, including Change Notice
1, dated March 21, 2000. The standard establishes the requirement for
the preparation and submission of MSDSs by Government contractors who
provide hazardous materials to the Government. The standard includes in
its definition of hazardous materials any item or chemical that--
1. Is a health hazard or physical hazard as defined by OSHA in 29
CFR 1910.1200;
2. Is reportable or potentially reportable or noticeable as
inventory under the reporting requirements of the Hazardous Chemical
Reporting (40 CFR part 302), or as an environmental release under the
reporting requirements of the Toxic Chemical Release Reporting:
Community Right to Know (40 CFR part 372);
3. When being transported or moved, is a risk to public safety or
an environmental hazard; and
4. Is a special nuclear source, or by-product material as defined
in 10 CFR part 40 or is regulated or referred to as radioactive.
FAR Subpart 23.3, Hazardous Material Identification and Material
Safety Data, and FAR 52.223-3, Hazardous Material Identification and
Material Safety Data, implement Federal Standard 313 requirements in
Government contracts that require the delivery of hazardous materials.
The FAR policies and procedures ensure that the Government has notice
of hazardous materials that will be supplied under Government contract
and receives MSDSs necessary for employee safety and health programs
and information necessary for the safe handling, storage, use,
transportation and environmentally acceptable disposal of hazardous
materials. These policies and procedures also ensure that Federal
agencies that have facilities that are required by Executive order to
meet reporting and notice requirements under the Emergency Planning and
Community Right-to-Know Act of 1986 (42 U.S.C. 11001-11050) and the
Pollution Prevention Act of 1990 (42 U.S.C. 13101-13109) have the
necessary information to make those reports or provide essential
information in emergencies.
The Councils initiated this case at the request of industry to
consider changes to FAR Subpart 23.3 and FAR 52.223-3. Industry's
concerns with the existing FAR text include--
1. The definition of ``hazardous material;''
2. The requirement to comply with any future revisions to Federal
Standard 313 after contract award without an equitable adjustment;
3. Requiring from contractors information over and above
information required by the Federal Hazard Communication Standard. (The
FAR Council is analyzing the differences between the OSHA standard and
FED STD 313. This analysis will be complete prior to promulgation of a
final rule. The FAR Council requests comments whether further changes
to FED STD 313 are needed to make it more in line with the Federal
Hazard Communication Standard);
4. Ambiguous wording (e.g., term of contract);
5. Virtually unlimited Government rights in the MSDS information
and data without any protection for trade secrets or other proprietary
data; and
6. Liability issues.
The Councils are proposing the following revisions to the FAR to
address industry's concerns:
1. Removing the automatic inclusion of future Federal Standard 313
revisions into the contract. FAR 52.223-3(a) defines ``hazardous
material'' as any material defined as hazardous under the latest
version of Federal Standard 313 including revisions adopted during the
term of the contract. The Councils agree with industry that the phrase
``term of the contract'' was ambiguous and that it is difficult to
anticipate future changes and their cost impact. This rule modifies the
clause to require the contractor to comply with only the version of the
Federal Standard in effect at the time of award of the contract. The
contracting officer may modify the contract to address subsequent
revisions to FED-STD-313, and make an equitable adjustment, if
appropriate.
2. Conforming FAR policy for proprietary information and
information protected as trade secrets to policies provided in the
Federal Hazard Communication Standard and Environmental Protection
Agency (EPA) regulation at 40 CFR part 350.
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3. Deleting FAR 52.223-3(f) that states that ``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, contractor, or
subcontractor personnel or property.''
Additionally, the rule--
(a) Removes the solicitation provision requirements from FAR
52.223-3 and establishes a separate provision at FAR 52.223-XX;
(b) Clarifies that the rule applies if hazardous materials are
expected to be delivered under the contract or incorporated into end
items to be delivered under the contract (if certain conditions are
met); and
(c) Makes a number of editorial changes.
This is a significant regulatory action and, therefore, was 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
Public reporting burden for this collection of information is
estimated to average .268 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated as follows:
Respondents: 37,000.
Responses per respondent: 1.45.
Total annual responses: 53,600.
Preparation hours per response: .268
Total response burden hours: 14,350.
D. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than March 5, 2002 to: FAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, FAR Secretariat (MVP), 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 whether it 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.
Requester may obtain a copy of the justification from the General
Services Administration, FAR Secretariat (MVP), 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: December 28, 2001.
Victoria Moss,
Acting Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR parts 23 and 52
be amended 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, CONVSERVATION, 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 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 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.
(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--
(i) All hazards to which they may be exposed;
(ii) Relative symptoms and appropriate emergency treatment; and
(iii) Proper conditions and appropriate protective measures for
safe use and handling.
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(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 must--
(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 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.
Hazardous Materials
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(If none, insert ``None'') Identification Nos.
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(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 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 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.--
(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) 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
under FAR 52.223-XX, or this clause;
(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) Submit any revised or new MSDS consistent with the version
of Federal Standard 313 in effect at the time of award of the
contract; and
(4) Make 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. 02-117 Filed 1-3-02; 8:45 am]
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