12696 Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations

16.404) and cost-reimbursement

incentive contracts (see 16.405). * * *

(d) Award-fee contracts are a type of

incentive contract.

16.402–1 [Amended]

6. Section 16.402–1 is amended in

paragraph (b) by removing ‘‘16.404–2’’

and inserting ‘‘16.405–2’’.

16.404 and 16.405 [Redesignated as

16.405 and 16.406]

7. Sections 16.404 and 16.405 are

redesignated as 16.405 and 16.406,

respectively.

8. A new section 16.404 is added to

read as follows:

16.404 Fixed-price contracts with award

fees.

(a) Award-fee provisions may be used

in fixed-price contracts when the

Government wishes to motivate a

contractor and other incentives cannot

be used because contractor performance

cannot be measured objectively. Such

contracts shall—

(1) Establish a fixed price (including

normal profit) for the effort. This price

will be paid for satisfactory contract

performance. Award fee earned (if any)

will be paid in addition to that fixed

price; and

(2) Provide for periodic evaluation of

the contractor’s performance against an

award-fee plan.

(b) A solicitation contemplating

award of a fixed-price contract with

award fee shall not be issued unless the

following conditions exist:

(1) The administrative costs of

conducting award-fee evaluations are

not expected to exceed the expected

benefits;

(2) Procedures have been established

for conducting the award-fee evaluation;

(3) The award-fee board has been

established; and

(4) An individual above the level of

the contracting officer approved the

fixed-price-award-fee incentive.

16.404–1 and 16.404–2 [Redesignated as

16.405–1 and 16.405–2].

9. Sections 16.404–1 and 16.404–2 are

redesignated as 16.405–1 and 16.405–2,

respectively.

10.–11. The newly designated section

16.406 is amended by revising the

introductory text of paragraph (e) to

read as follows:

16.406 Contract clauses.

* * * * *

(e) The contracting officer shall insert

an appropriate award-fee clause in

solicitations and contracts when an

award-fee contract is contemplated,

provided that the clause—

* * * * *

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

12. Section 52.216–16 is amended by

revising the introductory paragraph, and

Alternate I introductory text to read as

follows:

52.216–16 Incentive Price Revision—Firm

Target.

As prescribed in 16.406(a), insert the

following clause:

* * * * *

Alternate I (APR 1984). As prescribed

in 16.406(a), add the following

paragraph (o) to the basic clause:

* * * * *

13. Section 52.216–17 is amended by

revising the introductory paragraph, and

Alternate I introductory text to read as

follows:

52.216–17 Incentive Price Revision

Successive Targets.

As prescribed in 16.406(b), insert the

following clause:

* * * * *

Alternate I (APR 1984). As prescribed

in 16.406(b), add the following

paragraph (q) to the basic clause:

* * * * *

[FR Doc. 97–6313 Filed 3–14–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 23 and 52

[FAC 90–46; FAR Case 92–054B; Item V]

RIN 9000–AH39

Federal Acquisition Regulation;

Federal Compliance With Right-ToKnow Laws and Pollution Prevention

Requirements

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule with request for

comments.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on an interim rule amending the

Federal Acquisition Regulation (FAR) to

implement Executive Order 12856 of

August 3, 1993, ‘‘Federal Compliance

with Right-To-Know Laws and Pollution

Prevention Requirements.’’ This

Executive order requires that Federal

facilities comply with the planning and

reporting requirements of the Pollution

Prevention Act of 1990 (42 U.S.C.

13101–13109), and the Emergency

Planning and Community Right-toKnow Act of 1986 (42 U.S.C. 11001–

11050). 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.

DATES: Effective Date: March 17, 1997.

Comment Date: Comments should be

submitted to the FAR Secretariat at the

address shown below on or before May

16, 1997.to be considered in the

formulation of a final rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (MVR), 18th & F Streets,

NW., Room 4035, Attn: Ms. Beverly

Fayson, Washington, DC 20405.

E-Mail comments submitted over the

Internet should be addressed to:

92–054B@www.ARNET.gov

Please cite FAC 90–46, FAR case 92–

054B in all correspondence related to

this case.

FOR FURTHER INFORMATION CONTACT: Mr.

Paul Linfield at (202) 501–1757 in

reference to this FAR case. For general

information, contact the FAR

Secretariat, Room 4035, GS Building,

Washington, DC 20405 (202) 501–4755.

Please cite FAC 90–46, FAR case 92–

054B.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule implements

Executive Order 12856 of August 3,

1993, ‘‘Federal Compliance with RightTo-Know Laws and Pollution

Prevention Requirements.’’ The

Executive Order requires that Federal

facilities comply with the planning and

reporting requirements of the Pollution

Prevention Act of 1990 (PPA) and the

Emergency Planning and Community

Right-to-Know Act of 1986 (EPCRA).

The amendments at FAR Parts 23 and

52 require that contracts to be

performed on a Federal facility provide

for the contractor to supply to the

Federal agency all information the

Federal agency deems necessary to

comply with the reporting requirements

of the PPA and EPCRA.

B. Regulatory Flexibility Act

This interim rule may 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 this rule will apply to any

contractor that uses certain hazardous or
Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations 12697

toxic substances in the performance of

a contract at a Federal facility. It is

estimated that approximately 50 percent

of these contracts are performed by

small entities. An Initial Regulatory

Flexibility Analysis (IRFA) has been

prepared and will be provided to the

Chief Counsel for Advocacy of the Small

Business Administration. A copy of the

IRFA may be obtained from the FAR

Secretariat. Comments are invited.

Comments from small entities

concerning the affected FAR subparts

also will be considered in accordance

with 5 U.S.C. 610. Such comments must

be submitted separately and cite 5 U.S.C

601, et seq. (FAC 90–46, FAR case 92–

054B), in correspondence. The IRFA is

summarized as follows:

This interim rule implements the

requirements of Executive Order 12856 of

August 3, 1993, ‘‘Federal Compliance with

Right-To-Know Laws and Pollution

Prevention Requirements.’’ The Executive

order requires that Federal facilities comply

with the planning and reporting

requirements of the Pollution Prevention Act

of 1990 (PPA) and the Emergency Planning

and Community Right-to-Know Act of 1986

(EPCRA). The Executive order also requires

that contracts to be performed on a Federal

facility provide for the contractor to supply

to the Federal agency all information the

Federal agency deems necessary to comply

with these reporting requirements. The

objective of this rule is to enable Federal

facilities to comply with the planning and

reporting requirements of PPA and EPCRA by

requiring contractors who perform contracts

on such facilities to provide information on

their use of certain substances in the

performance of the contracts.

This interim rule will apply to all

contractors that use certain hazardous or

toxic substances in the performance of

contracts on a Federal facility. We estimate

that there are approximately 7,250 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 Executive order

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.

C. Paperwork Reduction Act

The Paperwork Reduction Act is

deemed to apply because the final rule

contains information collection

requirements. Accordingly, a request for

approval of a new information

collection requirement has been

submitted to the Office of Management

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

seq. Public comments concerning this

request were invited through a Federal

Register notice published on January 13,

1997.

D. Determination To Issue an Interim

Rule

A determination has been made under

the authority of the Secretary of Defense

(DOD), the Administrator of General

Services (GSA), and the Administrator

of the National Aeronautics and Space

Administration (NASA) that urgent and

compelling reasons exist to promulgate

this interim rule without prior

opportunity for public comment. This

action is necessary because Executive

Order 12856, Federal Compliance with

Right-to-Know Laws and Pollution

Prevention Requirements, required

implementation and incorporation of its

policies into the FAR by August 3, 1995.

However, pursuant to Public Law 98–

577 and FAR 1.501, public comments

received in response to this interim rule

will be considered in the formation of

the final rule.

List of Subjects in 48 CFR Parts 23 and

52

Government procurement.

Dated: March 7, 1997.

Edward C. Loeb

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR Parts 23 and 52 are

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,

CONSERVATION, OCCUPATIONAL

SAFETY, AND DRUG-FREE

WORKPLACE

2. Subpart 23.10, consisting of

sections 23.1001 through 23.1005, is

added to read as follows:

Subpart 23.10—Federal Compliance

With Right-To-Know Laws and

Pollution Prevention Requirements

Sec.

23.1001 Purpose.

23.1002 Applicability.

23.1003 Definition.

23.1004 Requirements.

23.1005 Contract clause.

23.1001 Purpose.

This subpart implements

requirements of Executive Order (E.O.)

12856 of August 3, 1993, Federal

Compliance with Right-To-Know Laws

and Pollution Prevention Requirements.

23.1002 Applicability.

The requirements of this subpart

apply to facilities owned or operated by

a Federal agency except those facilities

located outside the several states of the

United States, the District of Columbia,

and the Commonwealth of Puerto Rico.

23.1003 Definition.

Federal agency, as used in this

subpart, means an executive agency (see

2.101).

23.1004 Requirements.

(a) E.O. 12856 requires Federal

facilities to comply with the provisions

of the Emergency Planning and

Community Right-to-Know Act of 1986

(EPCRA)(42 U.S.C. 11001–11050) and

the Pollution Prevention Act of 1990

(PPA)(42 U.S.C. 13101–13109).

(b) Pursuant to Section 1–104 of E.O.

12856, and any agency implementing

procedures, every new contract that

provides for performance on a Federal

facility shall require the contractor to

provide information necessary for the

Federal agency to comply with the

emergency planning and toxic release

reporting requirements of EPCRA and

PPA.

23.1005 Contract clause.

The contracting officer shall insert the

clause at 52.223–5, Pollution Prevention

and Right-to-Know Information, in all

solicitations and contracts that provide

for performance, in whole or in part, on

a Federal facility.

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

3. Section 52.223–5 is added to read

as follows:

52.223–5 Pollution Prevention and Rightto-Know Information.

As prescribed in 23.1005, insert the

following clause:

Pollution Prevention and Right-to-Know

Information (March 1997)

(a) Executive Order 12856 of August 3,

1993, requires Federal facilities to comply

with the provisions of the Emergency

Planning and Community Right-to-Know Act

of 1986 (EPCRA) (42 U.S.C. 11001–11050)

and the Pollution Prevention Act of 1990

(PPA) (42 U.S.C. 13101–13109).

(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

Data Safety Sheets required by Section 311 of

EPCRA, the emergency and hazardous

chemical inventory forms of Section 312 of

EPCRA, and the toxic chemical release

inventory of Section 313 of EPCRA, which

includes the reduction and recycling

information required by Section 6607 of PPA.

(End of clause)

[FR Doc. 97–6314 Filed 3–14–97; 8:45 am]

BILLING CODE 6820–EP–P