[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30197]


[[Page Unknown]]

[Federal Register: December 8, 1994]


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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 501, 538, and 552

[APD 2800.12A CHGE 58]

 

General Services Administration Acquisition Regulation: 
Contractor Identification of Products With Environmental Attributes

AGENCY: Office of Acquisition Policy, GSA.

ACTION: Final rule.

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SUMMARY: The General Services Administration Acquisition Regulation 
(GSAR) is amended to revise section 501.105; revise the prescription 
for the multiple award schedule (MAS) clause at 552.238-75, 
Identification of Energy-Efficient Office Equipment and Supplies 
Containing Recovered Materials or Other Environmental Attributes, to 
require its use in all MAS solicitations and contracts for supplies; 
and revise the clause to amend the definitions of energy-efficient 
office equipment and recovered materials, add a definition of 
remanufactured products, and make editorial changes.

EFFECTIVE DATE: December 16, 1994.

FOR FURTHER INFORMATION CONTACT:
Paul Linfield, Office of GSA Acquisition Policy (202) 501-1224.

SUPPLEMENTARY INFORMATION:

A. Public Comments

    An interim rule and a proposed rule were published for public 
comment in the Federal Register (59 FR 3657 dated January 26, 1994, and 
59 FR 6231 dated February 10, 1994, respectively). Both were intended 
to assist Federal agencies in satisfying requirements expressed in 
various statutes and executive orders to consider energy-efficiency and 
other environmental considerations in their procurement practices. Vice 
President Gore's National Performance Review (NPR) also believed that 
the GSA, as a major procuring agency and through its multiple awards 
schedules programs, could provide encouragement to suppliers and assist 
Federal agencies in meeting their statutory and executive order 
responsibilities. Federal agencies use the GSA MAS contracts to satisfy 
many of their supply requirements. In its report, Reinventing Federal 
Procurement, the NPR included a recommendation that would have multiple 
award schedule contractors identify energy-efficient products and 
products with other environmental attributes. The GSA believes this 
rule also implements the NPR recommendation.
    Comments received from ten companies and organizations were 
considered in formulating this final rule. These comments focused 
primarily on definitions and informational aspects of the regulation.
    One comment suggested substituting the term, ``environmentally 
preferable,'' for ``environmental attributes'' and inclusion of 
definitions for such terms as ``postconsumer material,'' 
``recyclable,'' ``recycling,'' and ``waste prevention'' in the 
regulation. These terms from Executive Order 12873, Federal 
Acquisition, Recycling, and Waste Prevention, with the exception of 
``recyclable,'' are not used in the GSA regulation. ``Recyclable'' is 
specifically addressed in guidance contained in 16 CFR Part 260 that is 
referred to in the regulation. Consequently, the GSA does not believe 
defining these terms is necessary.
    Furthermore, the GSA does not publish this rule to implement 
Executive Order 12873 nor to substitute for guidance the Environmental 
Protection Agency (EPA) is developing pursuant to section 503 of that 
executive order to assist Federal agencies in their purchasing of 
environmentally preferable products. However, the GSA believes its rule 
does not conflict with, but in fact, further policies expressed in 
Executive Order 12873.
    Three companies submitted substitute definitions for ``energy-
efficient office equipment.'' These substitute definitions were not 
accepted because of limitations in their applicability or because they 
could lead to unwarranted and improper comparisons of competing 
products. However, as a result of these comments, the definition was 
modified.
    One comment expressed concern with the definition of ``recovered 
materials.'' The concern was that rebuilt parts and similar products 
may not fall within the definition. Suggested revisions to the 
definition were not accepted. The definition used in the regulation is 
the statutory definition in the Resource Conservation and Recovery Act 
(42 U.S.C. 6903(19)) and is unchanged in this final rule. However, as a 
result of this comment and a second comment that also alluded to 
remanufactured products, a definition of ``remanufactured products'' 
was added to the regulation for clarity.
    The majority of the remaining comments involved informational 
aspects of the regulation. The significant issues were the potential 
conflict with the guidance currently being developed by the EPA for 
purchasing environmentally preferable products, the amount and kinds of 
information necessary to substantiate environmental claims, and 
verification of those claims.
    One organization suggested the criteria is used by the GSA is too 
limited and not consistent with the approach the EPA is taking. A 
second opposed the interim rule ``on the grounds that no compelling 
reasons for its issuance were presented and its issuance is premature 
in light of EPA's work under Executive Order 12873.'' Several comments 
were made that the regulation may encourage the purchase of products 
based upon one or two favorable environmental characteristics while 
ignoring potentially significant adverse environmental impacts in other 
stages of their life cycle or that the regulation may encourage 
questionable and unfounded claims. One stated that listing specific 
environmental attributes should be avoided because suppliers ``would 
have little enticement to innovate outside the attributes listed.'' It 
continued, ``Federal procurement programs should encourage the 
submission of information on the broad life cycle of a product in the 
areas of energy usage, raw material usage, air emissions, water 
emissions and solid waste production.'' To shortcut unfounded claims, 
another urged the GSA to require offerors to supply it with complete 
information about the specific evidence, test procedures and results to 
support any claim.
    Several comments questioned the GSA's decision to rely upon third 
party certifications. The significant issues raised were (1) the GSA 
should not delegate this responsibility, (2) ecolabels tend to be based 
upon limited or narrow criteria and are not consistent with the broad 
life cycle approach favored by an EPA concept paper, and (3) third 
party certification can be costly to suppliers.
    The GSA considered all of these comments in light of its limited 
objectives and anticipated benefits. GSA notes that its regulation does 
not limit contractors only to those environmental attributes expressly 
identified in the regulation, but instead merely requires them to have 
a reasonable basis substantiating any claim to an environmental 
attribute that is made. Neither does the GSA dictate to contractors how 
it must substantiate the environmental claim, but again provides 
flexibility. Third party verification is one option available to 
suppliers.
    The GSA also considered the anticipated benefits of the 
informational models suggested in the EPA concept paper and favored by 
some organizations that commented on the regulation. The burden 
involved in collecting and evaluating information involved in such an 
approach is not consistent with the GSA's MAS programs where contracts 
are awarded to multiple suppliers that offer the same generic types of 
products at various prices. Ordering activities are thus provided the 
opportunity to satisfy their requirements with the lowest cost product 
that has the features specifically meeting their needs. Life cycle 
analysis applied to environmental attributes does not further this 
objective because it has not been demonstrated to be a cost-effective 
tool. The GSA agrees with one organization's comment that more work is 
needed before information requests on the broad life cycle of a product 
would be useful because ``the tools to translate these concepts into 
practice--such as life cycle assessment and life cycle costing--are, on 
this date, still under development.''
    The GSA also notes that it is not unaware of the work the EPA is 
doing in developing guidance on purchasing environmentally preferable 
products. While the GSA will continue to work with the EPA, the 
objectives of this rule and the EPA's objectives do not coincide. 
Though there are common elements, the achievement of the GSA's limited 
objectives is not dependent upon the approach ultimately decided upon 
by the EPA to assist Federal agencies in the purchase of 
environmentally preferable products. Moreover, to satisfy the NPR 
recommendation, the GSA cannot defer its final rule pending the 
development and issuance of the EPA's guidance.
    Consequently, the GSA made no substantive changes to the final rule 
as a result of comments on the informational aspects of the regulation. 
Since it cannot anticipate when EPA's final guidance will be published, 
the GSA believes its regulation will encourage the identification of 
current and new products with environmental attributes and identify 
those products for Federal agencies that place orders against GSA MAS 
contracts. Such an outcome will be consistent with the policies 
expressed in various statutes and executive orders and satisfy the 
recommendation in the NPR report, Reinventing Federal Procurement.

B. Executive Order 12866

    This rule was reviewed by the Office of Management and Budget (OMB) 
in accordance with Executive Order 12866, Regulatory Planning and 
Review.

C. Regulatory Flexibility Act

    The rule is not expected to have an economic impact on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act.
    Under multiple award schedules, contractors currently are required 
to submit certain marketing information with their offers and to 
publish and distribute to ordering agencies commercial catalogs and/or 
pricelists. This rule would require those contractors to identify and 
describe those products that have environmental attributes.
    An initial regulatory flexibility analysis was prepared and 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration. Copies of the initial regulatory flexibility analysis 
were available for public comment. No comments were received on the 
impact of the rule on small business.
    The final regulatory flexibility analysis reflects the policy of 
the Federal Government to accommodate and encourage technological 
innovation and the development of products that reduce energy 
consumption, conserve natural resources, and are less harmful to 
consumers and the environment. The final regulatory flexibility 
analysis indicates that the rule will affect contractors, including 
small businesses under MAS solicitations. In FY 1992 the GSA awarded 
approximately 2,800 such contracts. Of this total, more than 2,000 (74 
percent) were awarded to small business concerns.

D. Paperwork Reduction Act

    The information collection requirement contained in this rule has 
been approved by OMB under section 3504(h) of the Paperwork Reduction 
Act and assigned OMB Control Number 3090-0262. The title of this 
collection is Identification of Products with Environmental Attributes. 
Requiring contractors to identify and describe products with 
environmental attributes is intended to stimulate the development of 
products that incorporate pollution prevention technologies and 
facilitate the marketing of such products to the Federal Government, 
the Nation's largest single consumer. Federal agencies are required to 
give preference to such products, when doing so is cost-effective and 
meets performance requirements. The estimated annual burden for this 
collection is 14,000 hours. This is based on an estimated average 
burden hour per response of 5 hours, a proposed frequency of one 
response per respondent, and an estimated number of likely respondents 
or 2,800.
    Any comments concerning the accuracy of the burden may be directed 
to the Director, Office of GSA Acquisition Policy (VP), 18th and F 
Streets, NW, Room 4006, Washington, DC 20405 and to the Office of 
Information and Regulatory Affairs of OMB, Attention Desk Officer for 
GSA, Washington, DC 20503.

List of Subjects in 48 CFR Parts 501, 538, and 552

    Government procurement.
    Accordingly, 48 CFR Parts 501, 538, and 552 are amended as follows:
    1. The authority citation for 48 CFR Parts 501, 538, and 552 
continues to read as follows:

    Authority: 40 U.S.C. 486(c).

PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION 
SYSTEM

    2. Section 501.105 is revised to read as follows:


501.105  OMB Approval under the Paperwork Reduction Act.

    The following OMB control numbers apply:

------------------------------------------------------------------------
                                                            OMB control 
                      GSAR reference                            No.     
------------------------------------------------------------------------
509.105-1(a).............................................  3090-0007    
510.004-70...............................................  3090-0203    
510.011(i)...............................................  3090-0246    
512.104(a)(2)............................................  3090-0204    
512.104(a)(4)............................................  3090-0204    
514.201(7)(a)............................................  3090-0200    
516.203-4(b).............................................  3090-0243    
516.505..................................................  3090-0248    
519.708(b)...............................................  3090-0252    
522.406-6................................................  1215-0140    
523.370..................................................  3090-0205    
525.105-70(d)............................................  3090-0198    
525.205..................................................  3090-0240    
532.502-3................................................  3090-0229    
532.905-70...............................................  9000-0102    
532.905-71...............................................  3090-0080    
537.110(a)...............................................  3090-0197    
537.110(b)...............................................  3090-0006    
538.203-71(a)............................................  3090-0121    
538.203-71(b)............................................  3090-0250    
538.203-71(d)............................................  3090-0262    
542.1107.................................................  3090-0027    
546.302-70...............................................  3090-0027    
546.302-71...............................................  3090-0027    
546.570..................................................  3090-0227    
552.210-74...............................................  3090-0203    
552.210-79...............................................  3090-0246    
552.212-1................................................  3090-0204    
552.212-71...............................................  3090-0204    
552.214-75...............................................  3090-0200    
552.216-71...............................................  3090-0243    
552.216-73...............................................  3090-0248    
552.216-74...............................................  3090-0248    
552.219-73...............................................  3090-0252    
552.223-71...............................................  3090-0205    
552.225-70...............................................  3090-0198    
552.225-75...............................................  3090-0240    
552.228-74...............................................  3090-0189    
552.232-74...............................................  3090-0229    
552.232-79...............................................  3090-0080    
552.237-70...............................................  3090-0197    
552.237-71...............................................  3090-0006    
552.238-70...............................................  3090-0250    
552.238-72...............................................  3090-0121    
552.238-75...............................................  3090-0262    
552.242-70...............................................  3090-0027    
552.246-70...............................................  3090-0027    
552.246-72...............................................  3090-0027    
552.249-71...............................................  3090-0227    
GSA-72...................................................  3090-0121    
GSA-72-A.................................................  3090-0121    
GSA-527..................................................  3090-0007    
GSA-618-D................................................  1215-0149    
GSA-1142.................................................  3090-0080    
GSA-1364.................................................  3090-0086    
GSA-1678.................................................  3090-0027    
GSA-2419.................................................  9000-0102    
570.802(c)...............................................  3090-0086    
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PART 538--GSA SCHEDULE CONTRACTING

    3. Section 538.203-71 is amended to revise paragraph (d) to read as 
follows:


538.203-71  Solicitation provisions and contract clauses.

* * * * *
    (d) The contracting officer shall insert the clause at 552.238-75, 
Identification of Energy-Efficient Office Equipment and Supplies 
Containing Recovered Materials or Other Environmental Attributes, in 
solicitations and contracts awarded for supplies under the multiple 
award schedule program.

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Section 552.238-75 is revised to read as follows:


552.238-75  Identification of Energy-Efficient Office Equipment and 
Supplies Containing Recovered Materials or Other Environmental 
Attributes.

    As prescribed in 538.203-71(d), insert the following clause:

Identification of Energy-Efficient Office Equipment and Supplies 
Containing Recovered Materials or Other Environmental Attributes (Sept 
1994)

    (a) Definitions. ``Energy-efficient office equipment,'' as used 
in this clause, means office equipment that, in representative use, 
provides equivalent or better performance and value to users, but 
uses significantly less energy than most functionally equivalent 
models.
    ``Recovered materials,'' as used in this clause, means waste 
material and by-products which have been recovered or diverted from 
solid waste, but such term does not include those materials and by-
products generated from, and commonly reused, within an original 
manufacturing process (42 U.S.C. 6903(19)). For paper, it also 
includes postconsumer materials, and manufacturing and certain other 
wastes. (42 U.S.C. 6962(h)).
    ``Remanufactured products,'' as used in this clause, means 
equipment or parts that have been factory remanufactured or rebuilt 
to meet new equipment or part performance specifications and have 
had no use subsequent to their remanufacture.
    (b) The offeror shall identify in its offer and include in any 
commercial catalogs and pricelists and any resultant Government 
catalogs or pricelists submitted to the Contracting Officer, energy-
efficient office equipment and supplies that contain recovered 
material, remanufactured products, or other environmental 
attributes. Examples of energy-efficient office equipment are 
microcomputers and associated equipment that meet the requirements 
of the Environmental Protection Agency's (EPA's) Energy Star 
Computers Program. Supplies that contain recovered materials and 
other environmental attributes include, but are not limited to, 
products identified in EPA procurement guidelines (40 CFR subchapter 
I) and products that are either degradable, ozone safe, recyclable, 
contain low volatile organic content compounds, contribute to source 
reduction, or otherwise are designed or manufactured to achieve 
environmental improvement. For example, an offeror can identify 
products that are safe or safer alternatives for more toxic or 
hazardous products and products that can be substituted for ones 
manufactured with toxic or hazardous materials. Such supplies shall 
satisfy the guidance contained in 16 CFR part 260, Guides for the 
Use of Environmental Marketing Claims.
    (c) An offeror, in identifying an item with an environmental 
attribute, shall possess evidence or rely upon a reasonable basis to 
substantiate the claim (see 16 CFR 260.5). The Government will 
accept an offeror's claim of an item's environmental attribute on 
the basis of--
    (1) Participation in a Federal agency sponsored program, e.g., 
EPA's Energy Star Computers Program;
    (2) Verification by an independent organization that specializes 
in certifying such claims; or
    (3) Possession of competent and reliable evidence. For any test, 
analysis, research, study or other evidence to be ``competent and 
reliable,'' it must have been conducted and evaluated in an 
objective manner by persons qualified to do so, using procedures 
generally accepted in the profession to yield accurate and reliable 
results.

(End of Clause)

    Dated: September 23, 1994.
Arthur E. Ronkovich,
Acting Associate Administrator, Office of Acquisition Policy.
[FR Doc. 94-30197 Filed 12-7-94; 8:45 am]
BILLING CODE 6820-61-M