[Federal Register: August 17, 2007 (Volume 72, Number 159)]
[Rules and Regulations]               
[Page 46359-46360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]





48 CFR Part 23

[FAC 2005-19; FAR Case 2006-025; Item IX; Docket 2007-0001, Sequence 3]
RIN 9000-AK76

Federal Acquisition Regulation; FAR Case 2006-025, Online 
Representations and Certifications Application Review

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 (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to revise the 
prescription for use of clauses for the use of EPA-designated products 
and toxic chemical release reporting.

DATES: Effective Date: August 17, 2007.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before October 16, 2007 to be considered in 
the formulation of a final rule.

ADDRESSES:  Submit comments identified by FAC 2005-19, FAR case 2006-
025, by any of the following methods:
     Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. 

Search for any document by first selecting the proper document types 
and selecting ``Federal Acquisition Regulation'' as the agency of 
choice. At the ``Keyword'' prompt, type in the FAR case number (for 
example, FAR Case 2006-025) and click on the ``Submit'' button. Please 
include your name and company name (if any) inside the document.
    You may also search for any document by clicking on the ``Advanced 
search/document search'' tab at the top of the screen, selecting from 
the agency field ``Federal Acquisition Regulation'', and typing the FAR 
case number in the keyword field. Select the ``Submit'' button.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-19, FAR 
case 2006-025, in all correspondence related to this case. All comments 
received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, 

including any personal and/or business confidential information 

FOR FURTHER INFORMATION CONTACT:  Mr. Ernest Woodson, Procurement 
Analyst, at (202) 501-3775 for clarification of content. Please cite 
FAC 2005-19, FAR case 2006-025. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.


A. Background

    FAR Subpart 4.12, Annual Representations and Certifications, 
prescribes policies and procedures for prospective offerors to submit 
annual representations via the Online Representations and 
Certifications Application (ORCA). ORCA, located at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://orca.bpn.gov
, eliminates the administrative burden of submitting the 

same information to various contracting offices and establishes a 
common source for the Government to obtain the information. FAR 4.1201 
requires prospective contractors to complete annual representations and 
certifications in ORCA (and update them as necessary, but at least 
annually) in conjunction with their required registration in the 
Central Contractor Registration (CCR) database.
    FAR 4.1104 requires (with few exceptions as listed at FAR 4.1102) 
the use of FAR clause 52.204-7, Central Contractor Registration, which 
requires the contractor to register in CCR. FAR 4.1202 lists twenty-six 
representations and certifications that are included in ORCA and are 
therefore not to be included in solicitations that include the clause 
at 52.204-7, Central Contractor Registration.
    Of the twenty-six representations and certifications, the 
prescriptions for use of two associated clauses, (1) 52.223-9, Estimate 
of Percentage of Recovered Material Content for EPA-Designated 
Products, and (2) 52.223-14, Toxic Chemical Release Reporting, were 
determined to be problematic. The prescriptions for use of the clauses 
were dependent upon the associated provisions at 52.223-4, Recovered 
Material Certification, and 52.223-13, Certification of Toxic Chemical 
Release Reporting, being included in the solicitation. In instances 
where CCR is required, the annual certification in ORCA applies, and 
therefore neither provision will be included in the solicitation. 
Therefore, when applicable to the resultant contract, the Government 
may fail to include the associated clause because the provision was not 
included in the solicitation. Failure to include the clause may 
preclude receipt of information or certification required by statute.
    This interim rule amends FAR 23.406 and 23.906, both titled 
Solicitation provision and contract clause, to revise the prescriptions 
for the use of 52.223-9 and 52.223-14 to provide for use under the same 
circumstances as the prescription for use of their associated 
provisions. These revisions ensure compliance with the statutory 
requirements of 40 CFR part 247 and 42 U.S.C. 11023.
    This is not a significant regulatory action and, therefore, was not 
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 interim rule is not expected 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 
revises language that the Office of Management and Budget has already 
approved for obtaining representations and certifications under OMB 
Control Numbers 9000-0134 and 9000-0139 for compliance with Section 
6002 of the Resource Conservation and Recovery Act and the requirements 
of Executive Order 12969, Emergency Planning and Community Right-to-
Know Act of 1986. Therefore, an Initial Regulatory Flexibility Analysis 
has not been performed. The Councils will consider comments from small 

[[Page 46360]]

concerning the affected FAR Part 23 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. (FAC 2005-19, FAR case 2006-025), in 

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the FAR do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Numbers 
9000-0134 and 9000-0139.

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 the rule amends the FAR to address necessary 
changes to the prescriptions for the use of FAR clauses, allowing the 
proper receipt of certification information and ensuring compliance 
with the statutory requirements of 40 CFR part 247 and 42 U.S.C. 11023. 
However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will 
consider public comments received in response to this interim rule in 
the formation of the final rule.

List of Subjects in 48 CFR Part 23

    Government procurement.

    Dated: July 30, 2007.
Al Matera,
Acting Director, Contract Policy Division.

Therefore, DoD, GSA, and NASA amend 48 CFR part 23 as set forth below:


1. The authority citation for 48 CFR part 23 continues to read as 

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

2. Amend section 23.406 by revising the first sentence of paragraph (b) 
to read as follows:

23.406  Solicitation provision and contract clause.

* * * * *
    (b) Insert the clause at 52.223-9, Estimate of Percentage of 
Recovered Material Content for EPA-Designated Products, in 
solicitations and contracts exceeding $100,000 that are for, or specify 
the use of, EPA-designated products containing recovered materials. * * 
3. Amend section 23.906 by revising paragraph (b) to read as follows:

23.906  Solicitation provision and contract clause.

* * * * *
    (b) Insert the clause at 52.223-14, Toxic Chemical Release 
Reporting, in competitively awarded contracts exceeding $100,000 and 
competitively awarded 8(a) contracts, except when the determination at 
23.905(b) has been made.
[FR Doc. 07-3800 Filed 8-16-07; 8:45 am]