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Executive Order 12969

Issued by William J. Clinton on Tuesday 8 August 1995

Federal Acquisition and Community Right-To-Know

Federal Register, Volume 60 Issue 154 (Thursday, August 10, 1995)

[Federal Register Volume 60, Number 154 (Thursday, August 10, 1995)]
[Presidential Documents]
[Pages 40989-40992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19972]

[[Page 40987]]


Part V

The President


 Executive Order 12969--Federal Acquisition and Community Right-To-Know

                        Presidential Documents 

Federal Register / Vol. 60, No. 154 / Thursday, August 10, 1995 / 
Presidential Documents


Title 3--
The President

[[Page 40989]]

                Executive Order 12969 of August 8, 1995

Federal Acquisition and Community Right-To-Know

                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'') established programs to protect public 
                health and the environment by providing the public with 
                important information on the toxic chemicals being 
                released into the air, land, and water in their 
                communities by manufacturing facilities.

                The Toxics Release Inventory (``TRI'') established 
                pursuant to section 313(j) of EPCRA, 42 U.S.C. 
                11023(j), based on information required to be reported 
                under section 313 of EPCRA and section 6607 of PPA, 42 
                U.S.C. 13106, provides the public, industry, and 
                Federal, State, and local governments with a basic tool 
                for making risk-based decisions about management and 
                control of toxic chemicals, that can have significant 
                adverse effects on human health and the environment. 
                TRI data allow the public, industry, and government to 
                gauge the progress of industry and government efforts 
                to reduce toxic chemical wastes.

                Sharing vital TRI information with the public has 
                provided a strong incentive for reduction in the 
                generation, and, ultimately, release into the 
                environment, of toxic chemicals. Since the inception of 
                the TRI program, reported releases to the environment 
                under TRI have decreased significantly.

                The efficiency of the Federal Government is served when 
                it purchases high quality supplies and services that 
                have been produced with a minimum impact on the public 
                health and environment of communities surrounding 
                government contractors. Savings associated with reduced 
                raw materials usage, reduced use of costly, inefficient 
                end-of-pipeline pollution controls, and reduced 
                liability and remediation costs from worker and 
                community claims all serve to increase the economic and 
                efficient provision of essential supplies and services 
                to the government. As a result of TRI reporting, many 
                manufacturers have learned of previously unrecognized 
                significant efficiencies and cost savings in their 
                production processes.

                The Federal Government's receipt of timely and quality 
                supplies and services is also served by the general 
                enhancement of relations between government contractors 
                and the communities in which they are situated, as well 
                as the cooperative working relationship between 
                employers and employees who may be subject to exposure 
                to toxic materials.

                Information concerning chemical release and transfer 
                can assist the government to purchase efficiently 
                produced, lower cost, and higher quality supplies and 
                services that also have a minimum adverse impact on 
                community health and the environment.

                NOW, THEREFORE, to promote economy and efficiency in 
                government procurement of supplies and services, and by 
                the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including EPCRA, 42 U.S.C. 11001 et seq., PPA, 
                42 U.S.C. 13101 et seq., 40 U.S.C. 471 and 486(a), and 
                3 U.S.C. 301, it is hereby ordered as follows:

                Section 1. Policy. It is the policy of the executive 
                branch in procuring supplies and services that, to 
                ensure the economical and efficient procurement of 
                Federal Government contracts, Federal agencies, to the 
                greatest extent practicable, shall contract with 
                companies that report in a public manner on toxic 
                chemicals released to the environment. 

[[Page 40990]]

                Sec. 2. Definitions.  2-201. All definitions found in 
                EPCRA and PPA and implementing regulations are 
                incorporated into this order by reference, with the 
                following exceptions for purposes of this order.

                    2-202. ``Federal agency'' means an ``Executive 
                agency,'' as defined in 5 U.S.C. 105. For purposes of 
                this order, military departments, as defined in 5 
                U.S.C. 102, are covered under the auspices of the 
                Department of Defense.
                    2-203. ``Acquisition'' means the acquiring by 
                contract with appropriated funds of supplies or 
                services (including construction) by and for the use of 
                the Federal Government through purchase or lease, 
                whether the supplies or services are already in 
                existence or must be created, developed, demonstrated, 
                and evaluated. Acquisition begins at the point when the 
                Federal department or agency needs are established and 
                includes the description of requirements to satisfy 
                agency needs, solicitation and selection of sources, 
                award of contracts, contract financing, contract 
                performance, contract administration, and those 
                technical and management functions directly related to 
                the process of fulfilling agency needs by contract.
                    2-204. ``Toxic chemical'' means a substance on the 
                list described in section 313(c) of EPCRA, 42 U.S.C. 
                11023(c), as it exists on the effective date of this 
                    2-205. ``Administrator'' means the Administrator of 
                the United States Environmental Protection Agency 
                    2-206. ``Federal contractor'' means an entity that 
                has submitted the successful bid or proposal in 
                response to a competitive acquisition solicitation.

                Sec. 3. Applicability. 3-301. Each Federal agency 
                shall, to the maximum extent practicable, include in 
                contract solicitations as an eligibility criterion for 
                the award of competitive acquisition contracts expected 
                to equal or exceed $100,000 with the Federal 
                contractors described in subsection 3-302, the 
                requirement that such contractors must file (and 
                continue to file for the life of the contract) a Toxic 
                Chemical Release Form (``Form R''), as described in 
                sections 313(a) and (g) of EPCRA, 42 U.S.C. 11023(a) 
                and (g), for each toxic chemical manufactured, 
                processed, or otherwise used by the Federal contractor 
                at a facility, as described in section 313 of EPCRA, 42 
                U.S.C. 11023, and section 6607 of PPA, 42 U.S.C. 13106.

                    3-302. The Federal contractors subject to the 
                eligibility criterion described in subsection 3-301 
                above are those who currently report to the TRI 
                pursuant to section 313(b)(1)(A) of EPCRA, 42 U.S.C. 
                11023(b)(1)(A), that is, manufacturers having Standard 
                Industrial Classification Code (``SIC'') designations 
                of 20 through 39 (as in effect on July 1, 1985).
                    3-303. Each Federal agency shall find that a 
                prospective Federal contractor has satisfied the 
                requirement in subsection 3-301 if the contractor 
                certifies in a solicitation that it:
                (a) Does not manufacture, process, or otherwise use any 
                toxic chemicals listed under section 313(c) of EPCRA, 
                42 U.S.C. 11023(c);

                (b) Does not have 10 or more full-time employees as 
                specified in section 313(b)(1)(A) of EPCRA, 42 U.S.C. 

                (c) Does not meet the reporting thresholds established 
                under section 313(f) of the EPCRA, 42 U.S.C. 11023(f); 

                (d) Has complied fully with the reporting requirements 
                of subsection 4-404.

                    3-304. Each Federal agency shall require the 
                filings described in subsection 3-301 above to include 
                information on all chemicals identified by the 
                Administrator pursuant to section 313(c) of EPCRA, 42 
                U.S.C. 11023(c), as of the date of this order.
                    3-305. Each Federal agency may amend existing 
                contracts, to the extent permitted by law and where 
                practicable, to require the reporting of information 
                specified in subsection 3-301 above.
                    3-306. As consistent with Title IV of the Federal 
                Acquisition Streamlining Act of 1994 (FASA), Public Law 
                103-355, and section 4(11) of the Office 

[[Page 40991]]
                of Federal Procurement Policy Act, 41 U.S.C. 403(11), the requirements 
                of this order are only applicable to competitive 
                acquisition contracts expected to equal or exceed 

                Sec. 4. Implementation. 4-401. Not later than September 
                30, 1995, the EPA shall publish in the Federal Register 
                guidance for compliance with this order, including 
                applicability with respect to subcontractors.

                    4-402. Within 30 days of the issuance of the 
                guidance provided for in subsection 4-401 above, each 
                Federal agency shall include in all acquisition 
                solicitations issued on or after the effective date of 
                this order, the provisions necessary to effect this 
                    4-403. For all contracts expected to exceed 
                $500,000, each Federal agency shall consult with the 
                Administrator or the Administrator's designee when the 
                agency believes it is not practicable to include the 
                eligibility requirement of section 3-301 in the 
                contract solicitation or award.
                    4-404. Each Federal agency shall require each 
                Federal contractor designated in subsection 3-302 above 
                (a) Have included in its response to the contract 
                solicitation a certification, as specified in the 
                guidelines published pursuant to subsection 4-401 of 
                this order, that it will (if awarded the contract) 
                comply with the requirements of subsection 3-301; and

                (b) File with the Administrator and each appropriate 
                State pursuant to section 313(a) of EPCRA, 42 U.S.C. 
                11023(a), the information required by subsection 3-301, 
                beginning on the next July 1 after the date on which 
                the contract is awarded.

                    4-405. Information submitted to the EPA pursuant to 
                subsection 4-404(b) above shall be subject to the trade 
                secret protections provided by section 322 of EPCRA, 42 
                U.S.C. 11042. Information that is not trade secret 
                shall be made available to the public pursuant to 
                sections 313(h) and (j) of EPCRA, 42 U.S.C. 11023(h) 
                and (j). The Administrator is directed to review 
                reports submitted pursuant to this order to determine 
                the appropriateness of any claims for trade secret 
                    4-406. When the Administrator determines that a 
                Federal contractor has not filed the necessary forms or 
                complete information as required by subsection 3-301 
                above, the Administrator or the Administrator's 
                designee may recommend termination of the contract for 
                convenience. The Administrator shall transmit that 
                recommendation to the head of the contracting agency, 
                and that agency shall consider the recommendation and 
                determine whether to terminate the contract. In 
                carrying out this responsibility, the Administrator may 
                investigate any subject Federal contractor to determine 
                the adequacy of compliance with the provisions of this 
                order and the Administrator's designee may hold such 
                hearings, public or private, as the Administrator deems 
                advisable to assist in the Administrator's 
                determination of compliance.
                    4-407. Each contracting agency shall cooperate with 
                the Administrator and provide such information and 
                assistance as the Administrator may require in the 
                performance of the Administrator's functions under this 
                    4-408. Upon request and to the extent practicable, 
                the Administrator shall provide technical advice and 
                assistance to Federal agencies in order to assist in 
                full compliance with this order.

                Sec 5. General Provisions. 5-501. The requirements of 
                this order shall be implemented and incorporated in 
                acquisition regulations, including the Federal 
                Acquisition Regulations (FAR), within 90 days after the 
                effective date of this order.

                    5-502. This order is not intended, and should not 
                be construed, to create any right or benefit, 
                substantive or procedural, enforceable at law by a 
                party against the United States, its agencies, it 
                officers, or its employees. This order is not intended, 
                however, to preclude judicial review of final agency 
                decisions in accordance with the Administrative 
                Procedure Act, 5 U.S.C. 701 et seq. 

[[Page 40992]]

                    5-503. This order shall be effective immediately 
                and shall continue to be in effect until revoked.

                    (Presidential Sig.)

                THE WHITE HOUSE,

                    August 8, 1995.

[FR Doc. 95-19972
Filed 8-8-95; 5:01 pm]
Billing code 3195-01-P

Citation: 60 FR 40989
Revoked by: EO 13148, April 21, 2000;; ; See: EO 13101, September 14, 1998

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