[Federal Register Volume 72, Number 85 (Thursday, May 3, 2007)]
[Proposed Rules]
[Pages 24554-24557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2168]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 12, 23, 42, and 52

[FAR Case 2005-039; Docket 2007-0001; Sequence 2]
RIN 9000-AK69


Federal Acquisition Regulation; FAR Case 2005-039, Use of 
Products Containing Recovered Materials In Service and Construction 
Contracts

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 clarify language within the FAR 
on the use of products containing recovered materials, pursuant to the 
Resource Conservation and Recovery Act of 1976, and Executive Order 
13101 ``Greening the Government Through Waste Prevention, Recycling, 
and Federal Acquisition.''

DATES: Interested parties should submit written comments to the FAR 
Secretariat on or before July 2, 2007 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments identified by FAR case 2005-039 by any of 
the following methods:
     Federal eRulemaking Portal: 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 2006-001) and click on the ``Submit'' button. Please 
include any personal and/or business information 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 FAR case 2005-
039 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement 
Analyst, at (202) 219-1813 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
FAR Secretariat at (202) 501-4755. Please cite FAR case 2005-039.

SUPPLEMENTARY INFORMATION:

A. Background

    DOD, GSA, and NASA propose to amend the Federal Acquisition 
Regulation (FAR) to clarify language within the FAR on the use of 
products containing recovered materials, pursuant to the Resource 
Conservation and Recovery Act of 1976, and Executive Order 13101 
``Greening the Government Through Waste Prevention, Recycling, and 
Federal Acquisition.'' The Councils are aware that Executive Order 
13423, ``Strengthening Federal Environmental, Energy, and 
Transportation Management,'' revoked E.O. 13101; however, E.O. 13101 is 
not eliminated from Subpart 23.4 under this rule, as other conforming 
changes will

[[Page 24555]]

be required. A future FAR case will make the conforming changes as a 
result of the E.O. 13423.
    This rule proposes to revise Subpart 23.4, Use of Products 
Containing Recovered Materials, and associated provisions and clauses 
in FAR Part 52, with conforming changes in FAR Parts 12, 23, and 42, 
to--
    (1) Provide for consistency when referring to products containing 
recovered materials;
    (2) Clarify that the requirement for products containing recovered 
materials applies when agencies require the delivery or specify the use 
of EPA-designated items, and when agencies award contracts for services 
or construction unless the service or construction contract will not 
involve the use of such items;
    (3) Prescribe a new clause for use in service and construction 
contracts when appropriate; and
    (4) Revise the Recovered Material Certification provision to 
reflect the changes proposed by this rule.
    The Resource Conservation and Recovery Act (RCRA) was enacted by 
Congress in 1976 to establish a system for managing non-hazardous and 
hazardous solid wastes in an environmentally sound manner. 
Specifically, it provides for the management of hazardous wastes from 
the point of origin to the point of final disposal. RCRA also promotes 
resource recovery and waste minimization. RCRA is designed to protect 
human health and the environment; reduce or eliminate the generation of 
hazardous wastes; and conserve energy and natural resources. Section 
6002 of the RCRA acknowledges the importance of recycling by mandating 
that government agencies increase their purchases of products 
containing recovered materials.
    RCRA also specifies that the Environmental Protection Agency (EPA) 
develop and issue procurement guidelines that designate specific items 
made with recovered materials. EPA-designated items containing 
recovered materials are items listed by EPA in a procurement guideline, 
and for which EPA has provided purchasing recommendations in a related 
Recovered Materials Advisory Notice (RMAN). Agencies shall purchase and 
require maximum use of EPA-designated items, taking into consideration 
competition, price, availability, and performance.
    Other RCRA sections mandate the revision of specifications 
requiring the exclusive use of virgin materials (RCRA Section 6002(d)), 
and the development of an affirmative procurement program (RCRA Section 
6002(i)) that sets forth each agency's policies and procedures for 
implementing the requirements of Section 6002 of RCRA. Under the EPA 
program, Federal agencies may choose not to acquire (or require the use 
of) products containing recovered materials if they are not available 
in a reasonable timeframe, not reasonably priced, or do not meet 
performance standards. 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.
    Solicitation of Public Comment. The Councils, along with the Office 
of Federal Procurement Policy (OFPP), wish to ensure that the EPA 
preference program includes the acquisition of products and services 
(including construction). In furtherance of its responsibility under 
section 6002, OFPP seeks to better understand the application of 
acquisition of services coverage and welcomes feedback. In commenting, 
please include citations, as appropriate, to relevant sources of 
information that may be used to substantiate the basis for your 
comments.

B. Regulatory Flexibility Act

    This proposed 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 the proposed 
rule prescribes a new clause when agencies purchase Environmental 
Protection Agency (EPA)-designated items, and when purchasing services 
(including construction) that could include the use of such items. The 
proposed rule applies to all small business entities who contract with 
the Federal Government for delivery of EPA-designated items or 
performance of services or construction contracts that involve the use 
of EPA-designated items. The Councils recognize that the EPA preference 
program has not been consistently implemented by Government agencies in 
services and construction acquisitions. However, with some exceptions, 
many agencies have fully implemented the program. To assess the impact 
of the rule, the Councils requested information and assistance from the 
Office of the Federal Environmental Executive (OFEE). The Councils 
considered the information provided by OFEE in preparation of the 
Initial Regulatory Flexibility Analysis (IRFA), the content of which is 
summarized as follows:
    Executive Order (E.O.) 13101 requires that agencies track and 
report annually to OFEE on their environmental accomplishments in 
waste prevention, recycling, and acquisition. Reporting is required 
on solid waste prevention practices, recycling and waste 
minimization goals and practices, implementation of environmentally 
preferable purchasing programs, contract compliance information, 
management controls, goals for training, auditing, purchasing and 
waste diversion, and purchases of EPA-designated recycled-content 
products. In addition, Section 6002 of the Resource Conservation and 
Recovery Act (RCRA) requires the Office of Federal Procurement 
Policy to report to Congress every two (2) years on the actions 
taken by the Federal agencies to implement the statute.
    Information obtained from OFEE indicates that many agencies have 
fully implemented the recovered material content program. The 
content of the RCRA reports, combined with (1) an OFEE baseline 
study conducted on Federal agency green building activities, (2) 
annual White House Closing the Circle Awards nominations in the 
green purchasing, green building, and pollution/waste prevention 
categories, and (3) discussions with agencies (including tours of 
facilities and reviews of training programs), indicates that most 
agencies have been incorporating the requirement to use products 
with recycled content in services and construction contracts for 
some time.
    The Councils recognize that the rule may affect small entities 
performing contracts for those agencies that have not fully 
implemented the program in service and construction contracts, the 
number of entities affected, and the extent to which they will be 
affected, may be significant. The rule may affect the types of 
products these businesses use during contract performance. 
Assistance is available to all firms at the EPA Comprehensive 
Procurement Guidelines website, http://www.epa.gov/cpg. EPA provides 
guidance on identifying products containing recovered materials, 
including Product Fact Sheets and a Supplier Database. Options to 
comply with the requirements of the rule can be as simple as 
purchasing products made with recovered materials to be used in 
service and construction contracts. The rule does not impose new 
requirements that impose a burden on contractors.
    The FAR Secretariat has submitted a copy of the IRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. Interested 
parties may obtain a copy from the FAR Secretariat. We invite comments 
from small business concerns and other interested parties on this 
issue. The Councils will consider comments from small entities 
concerning the affected FAR parts 12, 23, 42, 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 2005-039), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the

[[Page 24556]]

FAR do not impose additional information collection requirements to the 
paperwork burden previously approved under OMB Control Number 9000-0134 
on January 4, 2005.

List of Subjects in 48 CFR Parts 12, 23, 42, and 52

    Government procurement.

    Dated: April 24, 2007.
Al Matera,
Acting Director, Contract Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 12, 23, 
42, and 52 as set forth below:
    1. The authority citation for 48 CFR parts 12, 23, 42, and 52 
continues to read as follows:

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

PART 12--ACQUISITION OF COMMERCIAL ITEMS

    2. Amend section 12.301 by revising paragraph (e)(3) to read as 
follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (e) * * *
    (3) The contracting officer may use the provisions and clauses 
contained in Part 23 regarding the use of products containing recovered 
materials when appropriate for the item being acquired.
* * * * *

PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE


23.000  [Amended]

    3. Amend section 23.000 by removing from paragraph (d) ``that use'' 
and adding ``containing'' in its place.
    4. Revise Subpart 23.4, consisting of sections 23.400 through 
23.406, to read as follows:

SUBPART 23.4--USE OF PRODUCTS CONTAINING RECOVERED MATERIALS


23.400  Scope of subpart.

    (a) The procedures in this subpart apply to all agency acquisitions 
of an Environmental Protection Agency (EPA)-designated item, if--
    (1) The price of a designated item exceeds $10,000; or
    (2) The aggregate amount paid for designated items, or for 
functionally-equivalent designated items, in the preceding fiscal year 
was $10,000 or more.
    (b) While micro-purchases are included in determining the aggregate 
amount paid under paragraph (a)(2) of this section, it is not 
recommended that an agency track micro-purchases when--
    (1) The agency anticipates the aggregate amount paid will exceed 
$10,000; or
    (2) The agency intends to establish or continue an affirmative 
procurement program in the following fiscal year.


23.401  Definition.

    As used in this subpart--
    EPA-designated item means a product that is or can be made with 
recovered material--
    (1) That is listed by EPA in a procurement guideline (40 CFR part 
247); and
    (2) For which EPA has provided purchasing recommendations in a 
related Recovered Materials Advisory Notice (RMAN) (available at http://www.epa.gov/epaoswer/non-hw/procure/backgrnd.htm).


23.402  Authorities.

    (a) The Resource Conservation and Recovery Act of 1976 (RCRA), 42 
U.S.C. 6962, requires agencies responsible for drafting or reviewing 
specifications used in agency acquisitions to--
    (1) Eliminate from those specifications any requirement excluding 
the use of recovered materials or requiring products to be manufactured 
from virgin materials; and
    (2) Require, for EPA-designated products, using recovered materials 
to the maximum extent practicable without jeopardizing the intended end 
use of the item.
    (b) RCRA also requires--
    (1) EPA to prepare guidelines on the availability, sources, and 
potential uses of recovered materials and associated products, 
including solid waste management services; and
    (2) Agencies to develop and implement affirmative procurement 
programs for EPA-designated products within 1 year after EPA's 
designation.
    (c) Executive Order 13101 requires that the agency head--
    (1) Work to increase and expand markets for recovered materials 
through greater Government preference and demand for such products 
consistent with the demands of efficiency and cost-effectiveness; and
    (2) Develop and implement affirmative procurement programs in 
accordance with direction in RCRA and the Executive order.


23.403  Policy.

    Government policy on the use of products containing recovered 
materials considers cost, availability of competition, and performance. 
Agencies shall assure the use of products containing recovered 
materials to the maximum extent practicable without jeopardizing the 
intended use of the product while maintaining a satisfactory level of 
competition at a reasonable price. Such products shall meet the 
reasonable performance standards of the agency and be acquired 
competitively, in a cost-effective manner. Except as provided at 
23.404(b), virgin material shall not be required by the solicitation 
(see 11.302).


23.404  Agency affirmative procurement programs.

    (a) An agency must establish an affirmative procurement program for 
EPA-designated items if the agency's purchases of the designated items 
exceed the threshold set forth in 23.400.
    (1) Agencies have a period of 1 year to revise their procurement 
program(s) after the designation of any new item by EPA.
    (2) Technical or requirements personnel and procurement personnel 
are responsible for the preparation, implementation, and monitoring of 
affirmative procurement programs.
    (3) Agency affirmative procurement programs must include--
    (i) A recovered materials preference program;
    (ii) An agency promotion program;
    (iii) A program for requiring reasonable estimates, certification, 
and verification of recovered material used in the performance of 
contracts; and
    (iv) Annual review and monitoring of the effectiveness of the 
program.
    (b) Agency affirmative procurement programs must require that 100 
percent of purchases of EPA-designated items contain recovered 
material, unless the item cannot be acquired--
    (1) Competitively within a reasonable timeframe;
    (2) Meeting reasonable performance standards; or
    (3) At a reasonable price.
    (c) Agency affirmative procurement programs must provide guidance 
for purchases of EPA-designated items at or below the micro-purchase 
threshold.
    (d) Agencies may use their own specifications or commercial product 
descriptions when procuring products containing recovered materials. 
The contract should specify that the product--
    (1) Contains the highest percent of recovered materials 
practicable; or

[[Page 24557]]

    (2) Meets the minimum content standards in accordance with the 
recommendations in EPA's Recovered Materials Advisory Notices.


23.405  Procedures.

    (a) Designated items and procurement guidelines. Contracting 
officers should refer to EPA's list of EPA-designated items (available 
via the Internet at http://www.epa.gov/cpg/products.htm) and to their 
agencies' affirmative procurement programs when purchasing products 
that contain recovered material, or services or construction that could 
include the use of products that contain recovered material.
    (b) Procurement exemptions. (1) Once an item has been designated by 
EPA, agencies shall purchase conforming products unless it is 
determined that conforming products cannot be acquired--
    (i) Competitively within a reasonable timeframe;
    (ii) Meeting reasonable performance standards; or
    (iii) At a reasonable price.
    (2) When an exemption is used for an EPA-designated item or the 
procurement of a product containing recovered material specifies a 
content level lower than the EPA recommended recovered materials 
content levels, the contracting officer shall place a written 
justification in the contract file.


23.406  Solicitation provision and contract clauses.

    (a) Insert the provision at 52.223-4, Recovered Material 
Certification, in solicitations that--
    (1) Require the delivery or specify the use of EPA-designated 
items; or
    (2) Include the clause at 52.223-XX, Affirmative Procurement of 
EPA-designated Items In Service and Construction Contracts.
    (b) Insert the clause at 52.223-9, Estimate of Percentage of 
Recovered Material Content for EPA-designated Items, in solicitations 
and contracts exceeding $100,000 that include the provision at 52.223-
4. If technical personnel advise that estimates can be verified, use 
the clause with its Alternate I.
    (c) Insert the clause at 52.223-XX, Affirmative Procurement of EPA-
designated Items In Service and Construction Contracts, in service or 
construction solicitations and contracts unless the contract will not 
involve the use of EPA-designated items.

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

    5. Amend section 42.302 by revising paragraph (a)(68)(ii) to read 
as follows:


42.302  Contract administration functions.

    (a) * * *
    (68) * * *
    (ii) Monitoring contractor compliance with specifications or other 
contractual requirements requiring the delivery or use of 
environmentally preferable products, energy-efficient products, and 
products containing recovered materials. This must occur as part of the 
quality assurance procedures set forth in Part 46; and
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Revise the provision in section 52.223-4 to read as follows:


52.223-4  Recovered Material Certification.

* * * * *

RECOVERED MATERIAL CERTIFICATION (DATE)

    As required by the Resource Conservation and Recovery Act of 
1976 (42 U.S.C. 6962(c)(3)(A)(i)), the offeror certifies, by signing 
this offer, that the percentage of recovered materials content for 
EPA-designated items to be delivered or used in the performance of 
the contract will be at least the amount required by the applicable 
contract specifications or other contractual requirements.
    (End of provision)
    7. Amend section 52.223-9 by--
    a. Revising the section heading;
    b. Revising the clause heading;
    c. Revising paragraph (b)(1); and
    d. In Alternate I by--
    1. Revising the date of Alternate I; and
    2. Revising the introductory paragraph of the certification in 
paragraph (b).
    The revised text reads as follows.


52.223-9  Estimate of Percentage of Recovered Material Content for EPA-
Designated Items.

* * * * *

ESTIMATE OF PERCENTAGE OF RECOVERED MATERIAL CONTENT FOR EPA-DESIGNATED 
ITEMS (DATE)

* * * * *
    (b) * * *
    (1) Estimate the percentage of the total recovered material 
content for EPA-designated item(s) delivered and/or used in contract 
performance, including, if applicable, the percentage of 
postconsumer material content; and
* * * * *
    Alternate I (Date). * * *
    (b) * * *
    CERTIFICATION
    I, ------------------------------ (name of certifier), am an 
officer or employee responsible for the performance of this contract 
and hereby certify that the percentage of recovered material content 
for EPA-designated items met the applicable contract specifications 
or other contractual requirements.
* * * * *
    8. Add section 52.223-XX to read as follows:


52.223-XX  Affirmative Procurement of EPA-designated Items In Service 
and Construction Contracts.

    As prescribed in 23.406(c), insert the following clause:

AFFIRMATIVE PROCUREMENT OF EPA-DESIGNATED ITEMS IN SERVICE AND 
CONSTRUCTION CONTRACTS (DATE)

    (a) In the performance of this contract, the Contractor shall 
make maximum use of products containing recovered materials that are 
EPA-designated items unless the product cannot be acquired--
    (1) Competitively within a timeframe providing for compliance 
with the contract performance schedule;
    (2) Meeting contract performance requirements; or
    (3) At a reasonable price.
    (b) Information about this requirement is available at EPA's 
Comprehensive Procurement Guidelines Web site, http://www.epa.gov/cpg/. The list of EPA-designated items is available at http://www.epa.gov/cpg/products.htm.
    (End of clause)
[FR Doc. 07-2168 Filed 5-2-07; 8:45 am]
BILLING CODE 6820-EP-S