[Federal Register Volume 80, Number 171 (Thursday, September 3, 2015)]
[Rules and Regulations]
[Pages 53436-53438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21746]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 7, 23, and 52

[FAC 2005-84; FAR Case 2013-016; Item I; Docket 2013-0016, Sequence 1]
RIN 9000-AM71


Federal Acquisition Regulation; EPEAT Items

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are adopting as final, with changes, an 
interim rule amending the Federal Acquisition Regulation (FAR) to 
implement changes in the Electronic Product Environmental Assessment 
Tool (EPEAT[supreg]) registry.

DATES: Effective: October 5, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Gray, Procurement Analyst, 
at 202-208-6726, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-84, FAR Case 2013-
016.

SUPPLEMENTARY INFORMATION: 

[[Page 53437]]

I. Background

    DoD, GSA and NASA published an interim rule in the Federal Register 
at 79 FR 35859 on June 24, 2014, to expand the Federal requirement to 
procure EPEAT[supreg]-registered products beyond personal computer 
products to cover imaging equipment (i.e., copiers, digital 
duplicators, facsimile machines, mailing machines, multifunction 
devices, printers, and scanners) and televisions and modify the 
existing FAR requirements to recognize the revised standard applicable 
to computer products. One respondent submitted public comments on the 
interim rule. Comments were also received informally from within the 
Government.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the comments in the 
development of the final rule. A discussion of the comments is provided 
as follows:

A. Summary of Significant Changes in Response to Public Comments

    There is no significant change in the final rule in response to the 
public comments received.

B. Analysis of Public Comments

1. EPEAT[supreg] Issues
    Comment: The respondent expressed concern about the use of 
EPEAT[supreg] standards because it is a registered trademark and 
manufacturers must purchase an annual license. The respondent also 
expressed concern over the use of a private entity as a source of 
standards for Government purchasing. The respondent recommended that 
the Government rely on the underlying ANSI-accredited technical 
standards used by EPEAT[supreg], such as the IEEE 1680\TM\ family of 
standards, and accept third party certification of conformance to the 
IEEE 1680\TM\ family of standards. The respondent recommended issuing 
further guidance clarifying the reliance on the IEEE 1680\TM\ family of 
standards when new product categories are added.
    Response: The requirement to purchase ``EPEAT[supreg]-registered'' 
electronic products was established under the interim rule for FAR Case 
2006-030 which was published in the Federal Register at 72 FR 73215 on 
December 26, 2007. The FAR case implemented section 2(h) of Executive 
Order (E.O.) 13423, Strengthening Federal Environmental, Energy, and 
Transportation Management. Subsequently, E.O. 13514, Federal Leadership 
in Environmental, Energy, and Economic Performance, directed agencies 
to purchase EPEAT[supreg]-registered products as part of a broader goal 
to advance sustainable acquisition. Although E.O.s 13423 and 13514 have 
now been superseded by E.O. 13693, Planning for Federal Sustainability 
in the Next Decade, this final rule does not change the requirement to 
purchase EPEAT[supreg]-registered products. The FAR will be revised to 
be consistent with the new E.O. 13693, which does not endorse any 
private labels. It does, however, clearly require in section 3(l) that 
Federal agencies ensure a procurement preference for environmentally 
sustainable electronic products. EPEAT[supreg] continues to be an 
important tool for agencies to utilize to comply with the electronic 
stewardship goals that are required by E.O. 13693.
2. Interim Rule
    Comment: The respondent stated that the decision to publish this 
rule as an interim rule misapplied the ``urgent and compelling'' 
exception to the standard notice and comment process.
    Response: This action was appropriate because imaging equipment and 
television items have already been added to the EPEAT[supreg] registry. 
Therefore, under the requirements of E.O.s 13423 and 13514, agencies 
are already required to fulfill at least 95 percent of their annual 
acquisition requirement for electronic products with EPEAT[supreg]-
registered electronic products.

C. Other Changes

    Based on informal comments from within the Government, the final 
rule amends FAR 23.704(a) to reflect more clearly the language in E.O. 
13423 as it pertains to the requirement for agencies, when acquiring 
electronic product, to meet at least 95 percent of those requirements 
with an EPEAT[supreg]- registered electronic product. The exceptions to 
this requirement are also amended to align with both E.O.s. Products 
that fall within the exceptions in FAR paragraphs 23.704(a)(1)(i) 
through (iii) are not included when calculating the achievement of the 
95 percent goal. A determination by the agency head is not required if 
no EPEAT[supreg]-registered product meets agency requirements, but the 
agency head may provide an exemption in accordance with FAR 23.105.
    However, a determination is required, in accordance with agency 
procedures, if the agency decides not to acquire an EPEAT[supreg]-
registered product because the product will not be cost effective over 
the life of the product (FAR 23.704(a)(2)). Because the E.O.s do not 
provide an exception based on cost, such an acquisition would be 
included as noncompliant, when calculating achievement of the 95 
percent goal.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    Executive Order 13423 (signed January 24, 2007, and published in 
the Federal Register at 72 FR 3919 on January 26, 2007) requires 
Federal agencies to satisfy at least 95 percent of their 
requirements for electronic products with EPEAT[supreg]-registered 
electronic products unless there is not an EPEAT[supreg] standard 
for such product. As of today, products must conform to the IEEE 
1680\TM\ family of standards in order to be listed on the 
EPEAT[supreg] product registry. The EPEAT[supreg] requirement, 
including a specific requirement for the purchase of EPEAT[supreg]-
registered personal computer products, was added to the FAR by FAR 
Case 2006-030. Since that final rule was issued on January 15, 2009, 
the IEEE has published an updated standard for personal computer 
products and two additional standards, for imaging equipment and 
televisions, and these standards have been added to the 
EPEAT[supreg] system. The objective of this final rule is to 
implement the changes to the EPEAT[supreg] registry.
    No comments were raised by the public in response to the initial 
regulatory flexibility analysis.
    Searching within the EPEAT[supreg] registry on October 1, 2014, 
the following numbers of products were listed as registered in the 
United States:

[[Page 53438]]



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                Product category                      Bronze          Silver           Gold            Total
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Personal computer products......................              12             321           1,182           1,515
Imaging equipment...............................             263             450              81             794
Televisions.....................................               1             205              37             243
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    These numbers refer to products, not individual companies. 
However, most (90-100 percent) of the companies with products listed 
on the EPEAT[supreg] registry are large businesses. These companies 
pay an annual fee, based on a sliding scale determined by the firm's 
revenue for that product the previous year, in order to be able to 
list the products on the EPEAT[supreg] registry.
    However, purchasers often procure EPEAT[supreg]-registered 
products through resellers or distributors rather than directly from 
the manufacturers. These resellers are often small businesses. EPA's 
Office of Small Business Programs stated that the majority of the 
resellers and distributors for EPEAT[supreg]-registered products are 
categorized as small businesses. Further, only the actual 
manufacturer pays to list products on the EPEAT[supreg] registry. 
The resellers or distributors pay no fees but reap the benefit of 
the EPEAT[supreg] categorization. Therefore, there will be little or 
no impact on small businesses due to this rule.
    There are no reporting, recordkeeping, or other compliance 
requirements associated with this rule. The only requirement is that 
businesses submitting proposals to the Government be aware of the 
EPEAT[supreg] registry and Web site and refer to it during the 
preparation of proposals. Small entities can comply with the 
requirements either as manufacturers, resellers, or distributors.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration.

V. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 7, 23, and 52

    Government procurement.

    Dated: August 26, 2015.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

Interim Rule Adopted as Final With Changes

    Accordingly, the interim rule amending 48 CFR parts 7, 23, and 52, 
which was published in the Federal Register at 79 FR 35859 on June 24, 
2014, is adopted as a final rule with the following changes:

0
1. The authority citation for 48 CFR parts 7, 23, and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 7--ACQUISITION PLANS


7.103  [Amended]

0
2. Amend section 7.103 by removing from paragraph (p)(2) ``non-ozone 
depleting'' and adding ``non-ozone-depleting'' in its place.

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


23.000  [Amended]

0
3. Amend section 23.000 by removing from paragraph (d) ``non-ozone 
depleting'' and adding ``non-ozone-depleting'' in its place.


0
4. Amend section 23.704 by revising paragraph (a) and removing from 
paragraph (b)(1)(iii) ``Meets EPA'' and adding ``Meet EPA'' in its 
place, the revised text reads as follows:


23.704  Electronic products environmental assessment tool.

    (a) General. (1) As required by E.O.s 13423 and 13514, agencies, 
when acquiring an electronic product to meet their requirements, shall 
meet at least 95 percent of those requirements with Electronic Product 
Environmental Assessment Tool (EPEAT[supreg])-registered electronic 
products, unless--
    (i) There is no EPEAT[supreg] standard for such product;
    (ii) No EPEAT[supreg]-registered product meets agency requirements; 
or
    (iii) The agency head has provided an exemption in accordance with 
23.105.
    (2) Contracting officers, when acquiring an electronic product, 
except as specified in paragraphs (a)(1)(i), (ii), or (iii) of this 
section, shall acquire an EPEAT[supreg]-registered electronic product, 
unless the agency determines, in accordance with agency procedures, 
that the EPEAT[supreg]-registered product will not be cost effective 
over the life of the product.
    (3) This section applies to acquisitions of electronic products to 
be used in the United States, unless otherwise provided by agency 
procedures. When acquiring electronic products to be used outside the 
United States, agencies must use their best efforts to comply with this 
section.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
5. Amend section 52.212-5 by revising the date of the clause, 
paragraphs (b)(36)(ii) and (b)(39)(i), to read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Items (Oct 2015)

* * * * *
    (b) * * *
    _(36)(i) * * *
    (ii) Alternate I (OCT 2015) of 52.223-13.
* * * * *
    _(39)(i) 52.223-16, Acquisition of EPEAT[supreg]-Registered 
Personal Computer Products (OCT 2015) (E.O.s 13423 and 13514).
* * * * *


0
6. Amend section 52.223-13 by revising the date of the Alternate I; and 
removing from paragraph (b) of Alternate I ``EPEAT'' and adding 
``EPEAT[supreg]'' in its place. The revised text reads as follows:


52.223-13  Acquisition of EPEAT[supreg]-Registered Imaging Equipment.

* * * * *
    Alternate I (OCT 2015) * * *
* * * * *

0
7. Amend section 52.223-16 by revising the date of the clause; and 
removing from paragraph (c) ``EPEAT'' and adding ``EPEAT[supreg]'' in 
its place. The revised text reads as follows:


52.223-16  Acquisition of EPEAT[supreg]-Registered Personal Computer 
Products.

* * * * *

Acquisition of EPEAT[supreg]-Registered Personal Computer Products (OCT 
2015)

* * * * *
[FR Doc. 2015-21746 Filed 9-2-15; 8:45 am]
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