[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Proposed Rules]
[Pages 51672-51694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16012]



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Vol. 88

Thursday,

No. 148

August 3, 2023

Part IV





Department of Defense





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General Services Administration





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National Aeronautics and Space Administration





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48 CFR Parts 1, 2, 4, et al.





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Federal Acquisition Regulations; Proposed Rules

  Federal Register / Vol. 88 , No. 148 / Thursday, August 3, 2023 / 
Proposed Rules  

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36, 
37, 39, 42, and 52

[FAR Case 2022-006, Docket No. 2022-0006, Sequence No. 1]
RIN 9000-AO43


Federal Acquisition Regulation: Sustainable Procurement

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

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to restructure and update the regulations 
to focus on current environmental and sustainability matters and to 
implement a requirement for agencies to procure sustainable products 
and services to the maximum extent practicable.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
October 2, 2023, to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2022-006 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2022-006''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2022-006''. Follow the instructions 
provided on the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case 2022-006'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite ``FAR Case 2022-
006'' in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. Public comments may be submitted as an individual, as an 
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s), 
please check https://www.regulations.gov, approximately two to three 
days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Hawes, Procurement 
Analyst, at 202-255-9194 or by email at [email protected], for 
clarification of content. For information pertaining to status, 
publication schedules, or alternate instructions for submitting 
comments if https://www.regulations.gov cannot be used, contact the 
Regulatory Secretariat Division at 202-501-4755 or [email protected]. 
Please cite FAR Case 2022-006.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR to restructure 
and update FAR part 23 to focus on current environmental and 
sustainability matters and to implement a requirement for agencies to 
procure sustainable products and services to the maximum extent 
practicable. On December 8, 2021, the President signed Executive Order 
(E.O.) 14057, Catalyzing Clean Energy Industries and Jobs Through 
Federal Sustainability. Section 208(a) directs agencies to reduce 
emissions, promote environmental stewardship, support resilient supply 
chains, drive innovation, incentivize markets for sustainable products 
and services, purchase sustainable products and services in accordance 
with relevant statutory requirements, and, to the maximum extent 
practicable, purchase sustainable products and services identified or 
recommended by the Environmental Protection Agency (EPA). The Executive 
Office of the President's Office of Management and Budget (OMB), 
Council on Environmental Quality (CEQ), and Climate Policy Office 
jointly issued Memorandum M-22-06 on the same date to provide direction 
for agency compliance with the E.O. Paragraph G of section I of the 
memorandum reiterates the requirement to purchase, to the maximum 
extent practicable and after meeting statutory mandates, sustainable 
products and services identified or recommended by EPA. The relevant 
purchasing requirements established by statute, as indicated in that 
memorandum, are for the following types of products:
     Products containing recovered material identified by EPA's 
Comprehensive Procurement Guideline Program;
     Biobased products in categories designated by the 
Department of Agriculture (USDA);
     Energy efficient products certified by ENERGY STAR[supreg] 
and energy and water efficient products designated by the Department of 
Energy Federal Energy Management Program (DOE-FEMP); and
     Products made with or containing acceptable alternatives 
to ozone-depleting substances listed by EPA's Significant New 
Alternatives Policy (SNAP) program.
    These statutory purchasing programs are currently implemented in 
FAR part 23, especially in subparts 23.2, 23.4, and 23.8.
    The required EPA programs, as listed in Memorandum M-22-06, that 
identify sustainable products and services include: WaterSense[supreg]; 
Safer Choice; SmartWay Transport partners and SmartWay products; and 
EPA Recommendations of Specifications, Standards, and Ecolabels for 
Federal Purchasing. The requirement to procure these types of 
environmentally preferable products and services are currently 
implemented at FAR subpart 23.7. Paragraph (b)(1) of FAR section 23.703 
directs agencies to employ acquisition strategies that maximize the 
utilization of environmentally preferable products and services (based 
on EPA-issued guidance). This subpart also currently includes the 
requirement to procure environmentally preferable products and 
Electronic Product Environmental Assessment Tool (EPEAT[supreg])-
registered products, which are examples of EPA Recommendations of 
Specifications, Standards, and Ecolabels for Federal Purchasing.
    In August 2022, CEQ issued Implementing Instructions for E.O. 
14057. Section 4.6 of the instructions reiterates the requirement to 
first ensure compliance with statutory purchasing programs and then 
ensure procurement of products and services identified by the required 
EPA programs in all contract actions and purchases. It also directed 
prioritization of multi-attribute products and services that meet at 
least one statutory purchasing program and one or more of the non-
statutory EPA programs. The instructions also delineate when it is 
considered not practicable to procure sustainable products and services 
and provide a listing of helpful resources for identifying and 
understanding sustainable products and services.
    The CEQ implementing instructions provide additional direction as 
it relates to Federal facility requirements, such as goals for 
pollution prevention and waste diversion and requirements for waste 
reduction. The instructions also provide direction for certain 
construction and modernization projects to meet and

[[Page 51673]]

(where practicable) exceed the CEQ's Guiding Principles for Sustainable 
Federal Buildings and Associated Instructions (Guiding Principles) 
(available at https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf).

II. Discussion and Analysis

    In addition to implementing the requirements in E.O. 14057 and the 
associated implementing instructions, DoD, GSA, and NASA are using this 
opportunity to restructure and streamline FAR part 23. As discussed in 
section II.A. of this preamble, under this effort, FAR part 23 is 
proposed to be amended to accomplish the following:
     Dedicate FAR part 23 to environmental matters.
     Consolidate purchasing programs requirements.
     Consolidate requirements related to hazardous and 
radioactive material.
     Consolidate Federal facility requirements.
    DoD, GSA, and NASA are proposing to implement the requirements of 
E.O. 14057, Memorandum M-22-06, and the CEQ E.O. 14057 implementing 
instructions related to sustainable products and services by 
consolidating them at FAR subpart 23.1 (see discussion in section II.B. 
of this preamble). This revised subpart will address both statutory and 
EPA purchasing programs, except for SmartWay Program requirements, 
which will be considered under a separate FAR rulemaking. The subpart 
includes the proposed policy and procedures for purchasing and 
prioritizing sustainable products and services, to include requirements 
for agency programs, exceptions, exemptions, and a new omnibus contract 
clause.
    DoD, GSA, and NASA are also proposing additional updates to 
requirements related to acquisition planning, special requirements for 
paper, waste reduction, construction and architect-engineer contracts, 
and information technology contracts to implement E.O. 14057 and the 
related CEQ implementing instructions. Several of these proposed 
changes update requirements established under an interim rule published 
under FAR Case 2010-001 (see 76 FR 31395, May 31, 2011) to align with 
current requirements under E.O. 14057. Any final rule resulting from 
this proposed rule will finalize the interim rule.

A. FAR Part 23 Restructuring

1. Dedicate FAR Part 23 to the Environment, Sustainable Acquisition, 
and Material Safety
    In order to dedicate part 23 to environmental matters, sustainable 
acquisition, and material safety, DoD, GSA, and NASA are proposing to 
transfer the following two subparts to FAR part 26, Other Socioeconomic 
Programs:
     FAR subpart 23.5, Drug-Free Workplace.
     FAR subpart 23.11, Encouraging Contractor Policies to Ban 
Text Messaging While Driving.
    This proposed rule does not propose any changes to the content of 
subpart 23.5 or 23.11, except to renumber the sections to 26.5 and 
26.6, respectively, and to move the clause prescription section for 
Drug-Free Workplace to the end of its subpart. The associated clauses 
at FAR 52.223-6, Drug-Free Workplace, and 52.223-18, Encouraging 
Contractor Policies to Ban Text Messaging While Driving, are also 
proposed to be renumbered as FAR clause 52.226-XX and 52.226-YY, 
respectively, to associate these clauses with FAR part 26. Conforming 
changes are proposed throughout the FAR to update cross-references.
2. Consolidate Purchasing Program Requirements
    DoD, GSA, and NASA are proposing to consolidate purchasing program 
requirements into a single subpart at FAR 23.1, to be titled 
``Sustainable Products and Services.'' This subpart will include 
overarching policy and procedures to implement E.O. 14057 requirements 
for purchasing sustainable products and services (see discussion in 
section II.B. of this preamble) and will include two new sections to 
outline existing statutory purchasing programs and required EPA 
purchasing programs (FAR sections 23.107 and 23.108, respectively). 
Existing content related to statutory purchasing programs in the 
following FAR subparts is proposed to be transferred to and streamlined 
in the new section at FAR 23.107, titled ``Statutory purchasing 
programs'':
     FAR subpart 23.2, Energy and Water Efficiency and 
Renewable Energy.
     FAR subpart 23.4, Recovered Materials and Biobased 
Products.
     FAR subpart 23.8, Ozone-Depleting Substances and 
Greenhouse Gases.
    The prescriptions for the following provisions and clauses 
associated with these subparts are transferred to FAR 23.109 organized 
under headings associated with the particular statutory purchasing 
programs:
     FAR provision 52.223-4, Recovered Material Certification.
     FAR clause 52.223-9, Estimate of Percentage of Recovered 
Material Content for EPA-designated Items.
     FAR provision 52.223-1, Biobased Product Certification,
     FAR clause 52.223-2, Reporting of Biobased Products Under 
Service and Construction Contracts.
     FAR clause 52.223-11, Ozone-Depleting Substances and High 
Global Warming Potential Hydrofluorocarbons.
     FAR clause 52.223-12, Maintenance, Service, Repair, or 
Disposal of Refrigeration Equipment and Air Conditioners.
     FAR clause 52.223-20, Aerosols.
     FAR clause 52.223-21, Foams.
    Changes to the content of these provisions and clauses, which 
implement various statutory certification and reporting requirements, 
are discussed under section II.B.6. of this preamble. The prescriptions 
for the clauses at FAR 52.223-15, Energy Efficiency in Energy-Consuming 
Products, and FAR 52.223-17, Affirmative Procurement of EPA-designated 
Items in Service and Construction Contracts, are not transferred to 
23.109; these clauses are proposed to be removed and reserved (also 
addressed in section II.B.6. of this preamble).
    The requirement to procure environmentally preferable products and 
EPEAT[supreg]-registered products currently implemented at FAR subpart 
23.7 is proposed to be removed and replaced by the requirement to 
procure products and services that meet EPA Recommendations of 
Specifications, Standards, and Ecolabels in the new section at FAR 
23.108-3. As discussed in section II.B.6. of this preamble, since EPEAT 
is one of EPA's recommendations, the following clauses associated with 
EPEAT and any alternates to these clauses are proposed to be removed 
and reserved:
     FAR 52.223-13, Acquisition of EPEAT[supreg]-Registered 
Imaging Equipment.
     FAR 52.223-14, Acquisition of EPEAT[supreg]-Registered 
Televisions.
     FAR 52.223-16, Acquisition of EPEAT[supreg]-Registered 
Personal Computer Products.
    As a result of this consolidation, FAR subpart 23.2 will be 
dedicated to energy savings performance contracts, FAR subpart 23.4 
will be repurposed to address Federal facility requirements (see 
discussion in section II.A.4 of this preamble), FAR subpart 23.7 will 
be removed, and FAR subpart 23.8 will be dedicated to greenhouse gas 
emissions. There are no proposed changes to the remaining content in 
FAR subpart 23.2

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related to energy savings performance contracts or subpart 23.8 related 
to greenhouse gas emissions disclosures, except to renumber the 
sections and paragraphs. Conforming changes are proposed throughout the 
FAR to update cross-references.
3. Consolidate Hazardous and Radioactive Material Requirements
    To further streamline FAR part 23, DoD, GSA, and NASA are proposing 
to consolidate the content of the following subparts in FAR subpart 
23.3 under the new title ``Hazardous Material Identification, Material 
Safety Data, and Notice of Radioactive Materials'':
     FAR subpart 23.3, Hazardous Material Identification and 
Material Safety Data.
     FAR subpart 23.6, Notice of Radioactive Material.
    This proposed rule does not include any proposed changes to the 
content of subpart 23.3 or 23.6, except to renumber the sections and 
paragraphs. Note, however, that DoD, GSA, and NASA have proposed 
changes to the greenhouse gas emissions disclosure requirements in 
subpart 23.8 under a separate proposed rule (see FAR case 2021-015, 
Disclosure of Greenhouse Gas Emissions and Climate-related Financial 
Risk, published 87 FR 68312, November 14, 2022). Conforming changes are 
proposed throughout the FAR to update cross-references.
4. Consolidate Federal Facility Requirements
    DoD, GSA, and NASA are proposing to consolidate the following 
content related to Federal facilities in FAR subpart 23.4:
     FAR subpart 23.10, Federal Compliance With Right-To-Know 
Laws and Pollution Prevention Requirements.
     FAR subpart 23.9, Contractor Compliance with Environmental 
Management Systems.
     FAR section 23.705 prescription for the clause at FAR 
52.223-10, Waste Reduction Program.
    Proposed changes to these subparts and associated clauses are 
described in section II.C.2. of this preamble. Conforming changes are 
proposed throughout the FAR to update cross-references.
5. Derivation and Distribution Tables
    Derivation and distribution tables are provided below to illustrate 
at the subpart level where content is derived from and where content 
will be distributed to as a result of this proposed rule. A 
presentation illustrating the overarching changes at the part/subpart 
level and more detailed tables illustrating changes at the section/
paragraph level are provided as supplemental documents to this proposed 
rule. To access the presentation and tables, go to https://www.regulations.gov, search for ``FAR Case 2022-006,'' click ``Open 
Docket,'' and view ``Supporting Documents''.
    The following derivation table illustrates where the contents in 
the proposed subparts in FAR parts 23 and 26 are derived from:

                            Derivation Table
------------------------------------------------------------------------
         Proposed FAR subpart                   Old FAR subpart
------------------------------------------------------------------------
23.1 Sustainable Products and          23.1 Sustainable Acquisition
 Services.                              Policy.
                                       23.2 Energy and Water Efficiency
                                        and Renewable Energy (Content
                                        related to energy-efficient
                                        products only).
                                       23.4 Use of Recovered Materials
                                        and Biobased Products.
                                       23.8 Ozone-Depleting Substances
                                        and Greenhouse Gases (Content
                                        related to ozone-depleting
                                        substances only).
23.2 Energy Savings Performance        23.2 Energy and Water Efficiency
 Contracts.                             and Renewable Energy (Content
                                        related to energy-savings
                                        performance contracts only).
23.3 Hazardous Material                23.3 Hazardous Material
 Identification, Material Safety        Identification and Material
 Data, and Notice of Radioactive        Safety Data.
 Materials.                            23.6 Notice of Radioactive
                                        Material.
23.4 Pollution Prevention,             23.9 Contractor Compliance with
 Environmental Management Systems,      Environmental Management
 and Waste Reduction.                   Systems.
                                       23.10 Federal Compliance With
                                        Right-To-Know Laws and Pollution
                                        Prevention Requirements.
23.8 Greenhouse Gas Emissions........  23.8 Ozone-Depleting Substances
                                        and Greenhouse Gases (Content
                                        related to greenhouse gas
                                        emission disclosures only).
26.5 Drug-Free Workplace.............  23.5 Drug-Free Workplace.
26.6 Encouraging Contractor Policies   23.11 Encouraging Contractor
 to Ban Text Messaging While Driving.   Policies to Ban Text Messaging
                                        While Driving.
------------------------------------------------------------------------

    The following distribution table illustrates where the current FAR 
part 23 subparts are distributed under this proposed rule:

                           Distribution Table
------------------------------------------------------------------------
           Old FAR subpart                 New FAR subpart or section
------------------------------------------------------------------------
23.1 Sustainable Acquisition Policy..  23.1 Sustainable Products and
                                        Services.
23.2 Energy and Water Efficiency and   23.107-3 Energy-consuming
 Renewable Energy.                      products.
                                       23.2 Energy Savings Performance
                                        Contracts.
23.3 Hazardous Material                23.3 Hazardous Material
 Identification and Material Safety     Identification, Material Safety
 Data.                                  Data, and Notice of Radioactive
                                        Materials.
23.4 Use of Recovered Materials and    23.107-1 Products containing
 Biobased Products.                     recovered materials.
                                       23.107-2 Biobased products.
23.5 Drug-Free Workplace.............  26.5 Drug-Free Workplace.
23.6 Notice of Radioactive Material..  23.3 Hazardous Material
                                        Identification, Material Safety
                                        Data, and Notice of Radioactive
                                        Materials.

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23.7 Contracting for Environmentally   23.108-3 Products and services
 Preferable Products and Services.      that are subject to EPA
                                        Recommendations of
                                        Specifications, Standards, and
                                        Ecolabels.
23.8 Ozone-Depleting Substances and    23.107-4 Products that contain,
 Greenhouse Gases.                      use, or are manufactured with
                                        ozone-depleting substances or
                                        products that contain or use
                                        high global warming potential
                                        hydrofluorocarbons.
                                       23.8 Greenhouse Gas Emissions.
23.9 Contractor Compliance with        23.4 Pollution Prevention,
 Environmental Management Systems.      Environmental Management
                                        Systems, and Waste Reduction.
23.10 Federal Compliance With Right-   23.4 Pollution Prevention,
 To-Know Laws and Pollution             Environmental Management
 Prevention Requirements.               Systems, and Waste Reduction.
23.11 Encouraging Contractor Policies  26.6 Encouraging Contractor
 to Ban Text Messaging While Driving.   Policies to Ban Text Messaging
                                        While Driving.
------------------------------------------------------------------------

B. Sustainable Products and Services

    The following is a summary of the proposed changes to FAR subpart 
23.1, to be titled ``Sustainable Products and Services,'' to implement 
requirements for purchasing sustainable products and services in E.O. 
14057, Memorandum M-22-06, and the CEQ implementing instructions.
1. Definitions
    A definition of ``sustainable products and services'' is proposed 
in FAR 2.101 and is applicable wherever the term is used in the FAR. 
The term is defined as products and services that are subject to and 
meet statutory purchasing program requirements or other EPA purchasing 
program requirements. For the statutory purchasing programs, the 
definition references the following types of products and includes a 
reference to the source statute, the lead agency implementing 
regulations, and the program website:
     Products containing recovered material designated by the 
U.S. Environmental Protection Agency (EPA) under the Comprehensive 
Procurement Guidelines.
     Energy efficient products that are ENERGY STAR[supreg] 
certified or Federal Energy Management Program (FEMP)-designated 
products.
     Biobased products meeting the USDA content requirements 
under the BioPreferred[supreg] program.
     Acceptable chemicals, products, and manufacturing 
processes listed under EPA's SNAP program, which ensures a safe and 
smooth transition away from substances that contribute to the depletion 
of stratospheric ozone.
    The definition identifies the following required EPA purchasing 
programs and provides the link to each associated program website:
     WaterSense[supreg] labeled (water efficient) products and 
services.
     Safer Choice-certified products (products that contain 
safer chemical ingredients).
     Products and services that meet or exceed EPA 
Recommendations of Specifications, Standards, and Ecolabels.
    As a result of the proposed changes described in section II.A. of 
this preamble, most of the definitions associated with the existing 
statutory purchasing programs are consolidated in FAR section 23.101, 
since these terms will only be used in FAR subpart 23.1. This includes 
the definitions of ``EPA-designated item,'' ``global-warming 
potential,'' ``high global warming potential,'' ``hydrofluorocarbons,'' 
and ``ozone-depleting substances.'' The definition of the term ``USDA-
designated item'' is also transferred, but the term itself is changed 
to ``USDA-designated product category'' to better align with USDA 
program requirements.
    The definitions of ``biobased product'' and ``recovered material'' 
in FAR 2.101 are also relevant to this revised subpart, but will remain 
in FAR part 2 since these terms are used throughout the FAR. Changes 
are proposed to the definition of ``biobased product'' to implement 
section 9002 of the Agricultural Act of 2014 (Pub. L. 113-79) and 
section 9001 of the Agriculture Improvement Act of 2018 (Pub. L. 115-
334), which revised the definition of ``biobased product'' (see 7 
U.S.C. 8101) for the purposes of the biobased procurement program. 
Changes are also proposed to the definition of ``recovered material'' 
to remove a pointer to an alternative definition applicable to FAR 
subpart 11.3 (see discussion in section II.C.1. of this preamble) and 
to add the statutory citation for the definition.
    In addition, this rule proposes moving the definition of ``United 
States'' from FAR section 23.001 to FAR section 23.101. This change 
will make the definition applicable only in FAR subpart 23.1 where the 
statutory requirements for purchasing sustainable products and services 
are being consolidated. The definition is revised to cite Memorandum M-
22-06 as the source of the definition and to clarify the definition is 
for the term when it is used in a geographical sense. Paragraph (9) of 
the definition of ``United States'' in FAR section 2.101 (the 
definition that is applicable throughout the FAR, except as specified) 
will also be revised to point to FAR section 23.101 as the source for 
the definition that is applicable to FAR subpart 23.1.
    The existing definition of ``contract action'' currently in FAR 
section 23.101 remains. This definition, however, is revised to align 
with Memorandum M-22-06 by removing reference to any non-FAR based 
agreements. The list of excluded actions that are not subject to the 
FAR is not necessary, since definitions in the FAR are only applicable 
to actions that are subject to the FAR.
2. Scope and Authorities
    Per FAR 23.100, Scope, the proposed subpart provides policies and 
procedures for the procurement of sustainable products and services. 
The requirements of FAR subpart 23.1 are applicable to all contract 
actions, including those using FAR part 12 procedures for the 
acquisition of commercial products, including commercially available 
off-the-shelf (COTS) items, and commercial services and acquisitions 
valued at or below the micro-purchase threshold. FAR section 23.102 is 
revised to cite E.O. 14057, Memorandum M-22-06, and the CEQ 
implementing instructions, as well as the authorities for the existing 
statutory purchasing programs to be consolidated at FAR section 23.107.
3. Policy
    FAR 23.103(a) outlines the policy that agencies shall procure 
sustainable products and services to the maximum extent practicable. 
Procuring sustainable products and services will be considered 
practicable, unless an agency cannot: (1) competitively acquire a 
product or service within a reasonable

[[Page 51676]]

performance schedule; (2) acquire a product or service that meets 
reasonable performance requirements; or (3) acquire a product or 
service at a reasonable price. For ENERGY STAR[supreg] or FEMP-
designated products, a price is reasonable if it is cost-effective over 
the life of the product taking energy cost savings into account. This 
standard maintains existing exceptions to the statutory mandates to 
purchase certain energy-efficient products, biobased products, and 
products containing recovered material. This rule proposes to apply 
this standard of what is ``practicable'' to the other categories of 
sustainable products and services.
    FAR 23.103(b) establishes requirements for prioritizing sustainable 
products and services. Specifically, when procuring sustainable 
products and services, agencies shall ensure compliance with all 
applicable statutory purchasing programs (consolidated in FAR section 
23.107) and prioritize multi-attribute sustainable products and 
services, i.e., that meet the requirements of both a statutory 
purchasing program and a required EPA purchasing program. The 
prioritization also notes that contracting officers are not required to 
procure products and services that meet the required EPA purchasing 
programs (see programs listed in section 23.108 of subpart 23.1) when 
doing so would conflict with statutes, Executive orders, or regulations 
that impose domestic manufacturing and content requirements.
    Finally, this proposed rule will revise the description of required 
products under contract actions for services that will be subject to 
the new policy; FAR 23.103(c) will describe such products as those that 
are: (1) delivered to the Government during performance; (2) acquired 
by the contractor for use in performing services under a Government 
contract where the cost of the products is a direct cost to a 
Government contract; or (3) furnished by the contractor for use by the 
Government, including use at Government-owned contractor-operated 
facilities. Paragraph (c)(2) reflects a change from the existing 
description of products acquired by the contractor for use in 
performing services at a Federally controlled facility to ensure 
products used in service contracts that are a direct cost to the 
Government are sustainable products. In addition, this description 
clarifies that products provided by the contractor during performance 
at Government-owned contractor-operated facilities are expected to be 
sustainable products. These changes are necessary to ensure that the 
Government procures sustainable products and services to the maximum 
extent practicable pursuant to E.O. 14057, Memorandum M-22-06, and the 
CEQ implementing instructions.
4. Procedures
    General procedures to carry out the new policy are provided at FAR 
23.104. Procuring sustainable products and services is generally 
considered practicable, but the contracting officer may consider a 
procurement not practicable based on a written justification from the 
requirements official. At FAR section 23.105, the rule will also 
continue to provide for certain exceptions, such as for weapon systems 
and contracts performed outside of the United States, unless the agency 
head determines that such application is in the interest of the United 
States, and other existing exceptions provided by statute. The proposed 
exemptions at FAR 23.106 are revised to align with the exemption 
authority provided in section 602 of E.O. 14057 to allow agency heads 
to exempt certain activities and acquisitions. The exemptions also 
allow the Director of National Intelligence to exempt certain 
intelligence activities. Some agency head exemptions require written 
notification to the Chair of the CEQ. Finally, a proposed exemption is 
included at FAR 23.106 where an agency head determines the supplies or 
services are to be used to facilitate defense against or recovery from 
cyber, nuclear, biological, chemical, or radiological attack; to 
facilitate provision of international disaster assistance; or to 
support response to an emergency or major disaster. In such 
circumstances, the agency head determination serves as the written 
justification, and the contracting officer is encouraged, but not 
required to procure sustainable products and services.
    When there is a written justification that it is not practicable to 
procure sustainable products or services or an exception or exemption 
applies, and only some of the potential sustainable products and 
services are covered by the justification, exception, or exemption, the 
contracting officer must ensure that the solicitation and contract 
identify any sustainable products or services that are not subject to 
the requirements of FAR subpart 23.1 and the associated clause at FAR 
52.223-XX, Sustainable Products and Services.
5. Purchasing Program Requirements
    The specific requirements and resources associated with the 
purchasing programs will be consolidated in sections 23.107 and 23.108. 
FAR sections 23.107-1 through 23.107-4 will address the existing 
requirements for the four statutory purchasing programs for: products 
containing recovered materials; biobased products; energy-consuming and 
water-consuming products; and products that contain, use, or are 
manufactured with ozone-depleting substances and products that contain 
or use high global warming potential hydrofluorocarbons. Within these 
sections are summaries of the overarching programs, references to 
statutory authority and lead agency implementing regulations, agency 
program requirements, any special procedures for contracting officers, 
and web addresses for primary program resources and information. FAR 
sections 23.108-1 through 23.108-3 will address the required EPA 
purchasing programs: water efficient products; chemically-intensive 
products; and products and services that are subject to EPA 
Recommendations of Specifications, Standards, and Ecolabels. Each 
section describes the EPA program and provides web addresses for access 
to additional information about and resources for the programs.
6. Provisions and Clauses
    FAR 23.109(a) prescribes a new clause at FAR 52.223-XX, Sustainable 
Products and Services, for use in all solicitations and contracts 
unless there is a written justification that it is not practicable to 
procure sustainable products and services, or an authorized exception 
or exemption applies, and the scope of the justification, exception, or 
exemption covers all potential sustainable products and services under 
a contract.
    This clause directs contractors to deliver and furnish sustainable 
products and services for Government use, including use at Government-
owned contractor-operated facilities; incorporate sustainable products 
and services into the construction of a public building or public 
works; and furnish sustainable products and services for contractor use 
in performing services under the contract, where the cost of the 
products is a direct cost to the contract (versus costs that are 
normally applied to a contractor's general and administrative expenses 
or indirect costs). However, the contractor is not required to provide 
sustainable products or services where the contracting officer has 
identified in the solicitation that a certain product or service is not 
subject to the clause. The clause provides direction to the contractor 
on how to prioritize statutory and multi-attribute sustainable products 
and services and refers the contractor to

[[Page 51677]]

the Green Procurement Compilation (available at https://sftool.gov/greenprocurement) as a resource that can be reviewed for a 
comprehensive list of sustainable products and services and other 
related sustainability guidance.
    As discussed in section III. of this preamble, this new omnibus 
clause is included in the clause at FAR 52.212-5, Contract Terms and 
Conditions Required To Implement Statutes or Executive Orders--
Commercial Products and Commercial Services, and the clause at FAR 
52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services). In the clause at FAR 
52.212-5, the contracting officer will check the box next to FAR clause 
52.223-XX to show that it applies to acquisition of commercial products 
and commercial services; this will be the case unless there is a 
written justification, exception, or exemption that covers all 
potential sustainable products and services in an acquisition. For 
simplified acquisitions, a new paragraph proposed at FAR 13.302-5 
directs the contracting officer to remove FAR clause 52.223-XX from the 
clause at FAR 52.213-4 when there is a written justification, 
exception, or exemption that covers all potential sustainable products 
and services in an acquisition.
    As mentioned in section II.A.2. of this preamble, several of the 
existing prescriptions for the provisions and clauses associated with 
statutory purchasing programs are transferred to FAR section 23.109:
     Paragraph (b) of this section provides the existing 
prescriptions for the provision at FAR 52.223-4 and the clause at FAR 
52.223-9 associated with EPA-designated items.
     Paragraph (c) of this section provides the existing 
prescriptions for the provision at FAR 52.223-1 and the clause at FAR 
52.223-2 related to biobased products in USDA-designated product 
categories.
     Paragraph (d) of this section, provides the existing 
prescriptions for the clauses at FAR 52.223-11, 52.223-12, 52.223-20, 
and 52.223-21 related to products containing ozone-depleting substances 
and hydrofluorocarbons.
    Except for FAR provision 52.223-1, there are no proposed changes to 
the existing prescriptions for these provisions and clauses, except to 
relocate content to the new consolidated section. The prescription for 
FAR 52.223-1, Biobased Product Certification, is revised to highlight 
an existing categorical exception for certain biobased products (see 
FAR 23.105(d)). Based on this exception, certification is not required 
for a solicitation that includes biobased products to be used in 
military equipment (products or systems designed or procured for combat 
or combat-related missions), spacecraft systems, or launch support 
equipment.
    There are no substantive changes proposed to the content of 
provision FAR 52.223-1, except to update the statutory references. 
Changes are proposed to the clause at FAR 52.223-2, to include a title 
change, the addition of defined terms, and removal of purchasing 
language that is now covered by the omnibus clause at FAR 52.223-XX. As 
a result, this clause will focus on the existing reporting requirements 
for biobased products in USDA-designated products, which are unchanged 
as a result of this proposed rule.
    Changes are also proposed in FAR clauses 52.223-11 and 52.223-12 to 
remove the requirements to track and report annually in the System for 
Award Management the amount of hydrofluorocarbon contained in, added 
to, or taken out of equipment or appliances under a contract. While the 
underlying requirement for alternatives to higher global warming 
potential hydrofluorocarbons remains in the FAR, the Government is 
looking towards other greenhouse gas management and tracking efforts.
    While there is no change to the prescription for Alternate I of FAR 
clause 52.223-9, Estimate of Percentage of Recovered Material Content 
for EPA-Designated Items, this alternate is proposed for removal from 
the list of annual representations and certifications at FAR 4.1202 and 
in the provision at FAR 52.204-8, Annual Representations and 
Certifications. The alternate requires a contractor employee to certify 
that (1) they are an officer or employee responsible for the 
performance of the contract and (2) that the percentage of recovered 
material content for EPA-designated items met the applicable contract 
specifications or other contractual requirements. This certification 
should occur at the end of contract performance, not at the entity 
level.
    The clauses at FAR 52.223-15, Energy Efficiency in Energy-Consuming 
Products, and FAR 52.223-17, Affirmative Procurement of EPA-designated 
Items in Service and Construction Contracts, are proposed to be removed 
and reserved. These clauses direct contractors to provide in the 
performance of the contract energy efficient products or products 
containing recovered material content that are EPA-designated items. 
Both clauses are considered subsumed by the new omnibus clause at FAR 
52.223-XX, which directs contractors to provide sustainable products 
and services in the performance of the contract, including ENERGY 
STAR[supreg] products, FEMP-designated products, and products 
containing recovered material designated by the EPA.
    As mentioned in section II.A.2 of this preamble, all of the clauses 
associated with EPEAT[supreg] requirements and their associated 
prescription in FAR subpart 23.7 are proposed to be removed and 
reserved. These clauses are also no longer necessary, since the 
requirement to procure products and services that meet EPA 
Recommendations of Specifications, Standards, and Ecolabels is 
addressed in the new omnibus clause at FAR 52.223-XX. As discussed in 
section II.A.2. of this preamble, EPEAT[supreg] is one of EPA's 
Recommendations of Specifications, Standards, and Ecolabels.
7. Cross-References
    This proposed rule will also update cross-references throughout the 
FAR to the requirements now consolidated in FAR subpart 23.1. 
Specifically, the listings of various purchasing programs in the 
following FAR sections are proposed to be replaced with a cross-
reference to requirements related to the procurement of sustainable 
products and services (as defined in 2.101) in accordance with FAR 
subpart 23.1:
     FAR 7.103(p)(1) regarding acquisition planning 
requirements.
     FAR 11.002(d)(1) and (2) regarding describing agency 
needs.
     FAR 13.201(f) regarding acquisition at or below the micro-
purchase threshold.
     FAR 42.302(a)(68)(ii) regarding contract administration 
requirements.
    In addition, a revision is proposed at FAR 37.102(i) to change the 
cross-reference from FAR part 23 to FAR subpart 23.1. A revision is 
also proposed at FAR 39.101(a)(1)(ii) to refer to FAR subpart 23.1 
instead of just EPEAT[supreg] standards in reference to acquiring 
information technology.

C. Other Changes

1. Special Requirements for Paper
    The special requirements for paper in FAR subpart 4.3 and FAR 
section 11.303 are proposed for removal. This subpart and section 
implemented requirements from E.O. 13423, Strengthening Federal 
Environmental, Energy, and Transportation Management, and E.O. 13514, 
Federal Leadership in Environmental, Energy, and Economic Performance, 
both of which are revoked.

[[Page 51678]]

FAR subpart 4.3 promotes the use of electronic commerce and directs 
agencies to require contractors to print or copy double-sided on at 
least 30 percent postconsumer fiber paper, whenever practicable, for 
paper documents related to an acquisition to be submitted to the 
Government. The clause at FAR 52.204-4, Printed or Copied Double-Sided 
on Postconsumer Fiber Content Paper, requires printing or copying 
single-sided on at least 30 percent postconsumer fiber paper. Also, 
section 11.303 establishes additional content standards for paper. 
These special requirements for paper are no longer necessary, given 
that electronic commerce is the primary means of conducting 
acquisition-related activities, printing double-sided on recycled paper 
is a common practice, and agencies will be required to procure products 
(including paper) that meet the minimum recovered material content 
standards established by the EPA Comprehensive Procurement Guidelines.
2. Federal Facility Requirements
    As discussed in section II.A.4. of this preamble, this proposed 
rule seeks to consolidate requirements related to Federal facilities in 
a single subpart. The following is a summary of the proposed changes to 
the content of the subpart.
a. Pollution Prevention and Right-to-Know Laws
    The existing requirements currently in FAR subpart 23.10 and the 
clause at FAR 52.223-5, Pollution Prevention and Right-to-Know 
Information, are based on statute. This rule proposes to transfer the 
contents of the subpart and the prescription for the clause to FAR 
subpart 23.4. Alternates I and II to this clause, however, are being 
removed, since the alternates implement content from revoked Executive 
orders. This proposed rule does not make any changes to the remaining 
existing content, except to renumber the sections and paragraphs and 
turn the content currently at FAR 23.1002 into a definition of 
``Federal facility.'' Conforming changes are proposed throughout the 
FAR to update cross-references.
b. Environmental Management Systems
    This rule proposes to transfer existing requirements in FAR subpart 
23.9 related to contractor compliance with an agency environmental 
management systems (EMS) to FAR subpart 23.4. This rule proposes 
changes to the policy to clarify that section 23.404 and the clause at 
FAR 52.223-19, Compliance with Environmental Management Systems, apply 
if an agency uses an EMS and contractor activities affect aspects of 
the agency's environmental management. This proposed change aligns with 
E.O. 14057 and the CEQ implementing instructions, which give agencies 
discretion to use an EMS to achieve the goals in E.O. 14057. Conforming 
changes are proposed throughout the FAR to update cross-references.
c. Waste Reduction Programs
    This rule proposes to update FAR clause 52.223-10, Waste Reduction 
Program, to replace the reference to section 3(e) of E.O. 13423 with a 
reference to section 207 of E.O. 14057. This FAR clause is prescribed 
for use in all solicitations and contracts for contractor operation of 
Government-owned or -leased facilities and all solicitations and 
contracts for support services at Government-owned or -operated 
facilities; it requires the contractor to maintain a program to promote 
cost-effective waste reduction in all operations and facilities covered 
by a contract. The new E.O. and CEQ implementing instructions provide 
direction to agencies on pollution prevention and reducing waste, 
therefore this clause is retained; however, the prescription is 
transferred to FAR subpart 23.4 where facility-related requirements 
have been consolidated.
3. Construction and Architect-Engineer Contracts
    This rule proposes to update agency requirements for construction 
and architect-engineer contracts at FAR 36.104(b)(1). Currently, 
agencies must ensure that all new construction, major renovation, or 
repair and alteration of Federal buildings complies with the Guiding 
Principles for Federal Leadership in High-Performance and Sustainable 
Buildings. This proposed rule will update this paragraph to align with 
the directive in the CEQ implementing instructions that all new 
construction and modernization projects greater than 25,000 gross 
square feet are designed, constructed, and maintained to meet and, 
wherever practicable, exceed Federal sustainable design and operations 
principles for new construction and modernization projects in 
accordance with the CEQ's Guiding Principles for Sustainable Federal 
Buildings and Associated Instructions (Guiding Principles) (available 
at https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf); and that all 
renovation projects of existing Federal buildings must use, to the 
greatest extent technically feasible and practicable, Federal 
sustainable design and operations principles for existing buildings in 
accordance with the Guiding Principles. FAR 36.104(b)(2) is also 
proposed to be removed and the goals in FAR 36.104(b)(5) are updated to 
require agencies to divert at least 50 percent of non-hazardous 
construction and demolition materials and debris.
4. Content Proposed for Removal
    This rule proposes to remove the terms ``renewable energy'' and 
``renewable energy technology'' from FAR section 2.101. As a result of 
the streamlining described in this proposed rule to direct agencies to 
procure sustainable products and services, including energy and water 
efficient products, the terms are no longer used in FAR parts 7, 11, or 
23.
    The term ``water consumption intensity'' is currently used at FAR 
23.202 to describe broad agency policies from prior E.O.s to reducing 
potable water consumption intensity; while this objective is still 
relevant, such requirements are already implemented in the CEQ Guiding 
Principles for Sustainable Federal Buildings and associated 
instructions (Guiding Principles). As discussed in section II.C.3. of 
this preamble, FAR 36.104 directs agencies to ensure that all new 
construction, major renovation, or repair and alteration of Federal 
buildings complies with the Guiding Principles.
    Similarly, the direction at FAR 23.202(b)(2) and (3) for agencies 
to use and manage water through water-efficient means, including storm 
water management in accordance with section 438 of the Energy 
Independence and Security Act of 2007 (42 U.S.C. 17094), are covered in 
the CEQ Guiding Principles and, thus, proposed for removal.
    Finally, the agency policy objectives described at FAR 23.703 are 
proposed for removal, since these objectives are covered by the 
streamlined procedures proposed under this rule. FAR 23.002 includes an 
overarching policy statement for the streamlined FAR part. In addition, 
the statement at FAR 23.703 regarding the statutory requirement to 
procure plastic ring carriers that are degradable (7 U.S.C. 8102(c)(1)) 
is proposed for removal, since the EPA implementing regulations at 40 
CFR part 238 are directed at manufacturers and importers of plastic 
ring carriers. The implementing regulations also provide information on 
an approved consensus standard for plastic ring carriers, which may be 
incorporated into design

[[Page 51679]]

documents or scopes of work, as appropriate.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT), for Commercial Products (Including Commercially 
Available Off-the-Shelf (COTS) Items), and for Commercial Services

    The new clause proposed at FAR 52.223-XX, Sustainable Products and 
Services, is prescribed at FAR 23.109(a) for use in all solicitations 
and contracts, unless a justification, exception, or exemption applies 
to all potential sustainable products and services in an acquisition. 
The new omnibus clause will be required to be included in covered 
solicitations and contracts valued at or below the simplified 
acquisition threshold and for commercial products, including COTS 
items, or commercial services. It is necessary to apply the 
requirements of this clause to these types of acquisition to achieve 
the intended policy outcome, which is for the Government to meet 
statutory purchasing program requirements and to procure sustainable 
products and services under required EPA purchasing programs to the 
maximum extent practicable.
    The following FAR clauses are proposed for removal under this FAR 
case and will no longer be listed in FAR clause 52.212-5, Contract 
Terms and Conditions Required To Implement Statutes or Executive 
Orders--Commercial Products and Commercial Services, as applicable to 
acquisitions of commercial products or commercial services:
     FAR 52.223-13, Acquisition of EPEAT[supreg]-Registered 
Imaging Equipment, and its Alternate I.
     FAR 52.223-14, Acquisition of EPEAT[supreg]-Registered 
Televisions, and its Alternate I.
     FAR 52.223-15, Energy Efficiency in Energy-Consuming 
Products.
     52.223-16, Acquisition of EPEAT[supreg]-Registered 
Personal Computer Products, and its Alternate I.
    Since it is proposed for removal, FAR clause 52.223-15 will also no 
longer be listed in 52.213-4, Terms and Conditions--Simplified 
Acquisitions (Other Than Commercial Products and Commercial Services), 
as applicable to simplified acquisitions.
    This rule does not include any proposed changes to the existing 
prescriptions for other FAR part 23 solicitation provisions or contract 
clauses, except to renumber the section or paragraph where content has 
been relocated to a new FAR part or subpart.

IV. Severability

    If any portion (e.g., section, clause, sentence) of this proposed 
rulemaking is held to be invalid or unenforceable facially, or as 
applied to any entity or circumstance, it shall be severable from the 
remainder of this rulemaking, and shall not affect the remainder 
thereof, or its application to entities not similarly situated or to 
other dissimilar circumstances. The various portions of this rule are 
independent and serve distinct purposes. Even if one aspect were 
rendered invalid, the other benefits of these rules would still be 
applicable. As an illustrative but not exhaustive example, were a court 
to stay or invalidate the proposed changes to subpart 23.1 regarding 
sustainable products and services, the agencies would intend the 
broader restructuring of FAR part 23 to remain effective.

V. Expected Impact of the Rule

A. FAR Part 23 Restructuring

    Currently, FAR part 23 addresses various policy initiatives, 
ranging from requirements related to procuring sustainable products and 
services and other energy and environmental matters to requirements for 
a drug-free workplace and encouraging contractors to ban texting while 
driving. The FAR part has been revised to provide a cohesive message on 
the important role of sustainable acquisition and to provide clear 
policy and directions for the contracting and contractor communities. 
The proposed changes to restructure FAR part 23 will establish a clear 
and simplified framework for the Government to communicate requirements 
related to environmental matters and sustainable acquisition.
    The proposed transfer of non-environmental matters to FAR part 26 
is the first step to focus the messaging in FAR part 23 on the 
environment and sustainable acquisition. Then, within FAR part 23, 
existing content on similar topics, such as purchasing requirements, 
hazardous and radioactive material requirements, and Federal facility 
requirements, will be consolidated into single subparts to ensure that 
the contracting workforce is able to easily access and understand 
related policies and procedures. Finally, content based on revoked 
Executive orders, such as double-sided copying and printing 
requirements in FAR clause 52.204-4 and the alternates to FAR clause 
52.223-5, is proposed for removal (see sections II.C.1. and II.C.2.a of 
this preamble). In addition, the contractors will no longer be required 
to comply with the annual hydrofluorocarbon reporting requirements 
contained in FAR clauses 52.223-11 and 52.223-12, which are proposed 
for removal (see discussion in section II.B.6. of this preamble).

B. Sustainable Products and Services

    This proposed rule will not only consolidate content in FAR subpart 
23.1, but also streamline and standardize the policy and procedures for 
purchasing sustainable products and services, which will help agencies 
and industry better understand and comply with the purchasing program 
requirements already implemented in the FAR. In accordance with 
direction provided under E.O. 14057, this rule proposes to require 
agencies to purchase sustainable products and services to the maximum 
extent practicable. This requirement is not new. Agencies are already 
required to ensure that the overwhelming majority of their contract 
actions meet the various purchasing program requirements. For example:
     FAR subpart 23.1 currently requires Federal agencies to 
advance sustainable acquisition by ensuring that 95 percent of new 
contract actions for the supply of products and for the acquisition of 
services (including construction) require that the products are energy-
efficient (ENERGY STAR[supreg] or Federal Energy Management Program 
(FEMP)-designated); water-efficient; biobased; environmentally 
preferable, or non-toxic or less toxic alternatives); non-ozone 
depleting; or made with recovered materials.
     The existing statutory purchasing program requirements 
described in the proposed rule for consolidation in FAR section 23.107 
are currently implemented in FAR subparts 23.2, 23.4, and 23.8.
     The requirement to procure products and services that meet 
other EPA purchasing programs described in proposed FAR section 23.108 
clarifies the existing requirement at FAR 23.703(b)(1) for agencies to 
maximize the use of environmentally preferable products and services 
(based on EPA-issued guidance).
     While this proposed rule introduces the WaterSense[supreg] 
label by name, FAR subpart 23.7 already directs agencies to maximize 
environmentally preferable products and services based on EPA-issued 
guidance and to promote water conservation, which would include EPA's 
WaterSense[supreg] program. In addition, FAR subpart 23.2 currently 
directs agencies to procure DOE FEMP-designated products, which include 
water-consuming products with the WaterSense[supreg] label, and the CEQ 
Guiding Principles directed for use at

[[Page 51680]]

FAR 36.104 also address requirements for WaterSense[supreg] products.
     While the Safer Choice ecolabel is not currently 
referenced by name in the FAR, FAR subpart 23.7 directs agencies to 
give preference to the procurement of acceptable alternative chemicals 
and products that reduce overall risks to human health. Safer Choice is 
also a well-known ecolabel for products that contain safer chemicals, a 
label that many public institutions, private companies, and individuals 
seek out regardless of a directive to avoid exposure to toxic 
chemicals.
    Under this proposed rule, agencies will be required to continue 
ensuring that products and services meet statutory purchasing program 
requirements and to prioritize multi-attribute products and services, 
which are products and services that meet more than one statutory 
purchasing program and one or more required EPA purchasing programs. 
What is practicable is defined in a uniform manner for all purchasing 
programs and aligns with existing statutory basis for not procuring 
energy-efficient products, biobased products, and products containing 
recovered material. In addition, the existing exceptions (such as those 
for acquisitions performed outside the United States, weapon systems, 
space systems, etc.) are maintained in this proposed rule. The proposed 
exemptions are also generally maintained, though an additional 
exemption for response to national emergencies is also provided.
    Finally, this proposed rule seeks to establish a standard way for 
agencies to communicate the requirements for sustainable products and 
services to contractors via a new proposed contract clause at FAR 
52.223-XX, Sustainable Products and Services. This new clause will 
enable agencies to communicate requirements for sustainable products 
and services in a uniform manner and to better enforce the requirement 
to procure sustainable products and services as a standard term and 
condition of a contract. In addition to making clear that agencies 
expect to have sustainable products and services delivered in 
performance of the contract, the proposed rule introduces a requirement 
that contracting officers to identify in the solicitation and contract 
any products and services that are subject to an exception or exemption 
per a written justification from the requiring activity. While 
contracting officers already work with requiring activities to document 
when they are not able to meet the existing statutory purchasing 
requirements, this proposed rule will ensure that this information is 
clearly communicated to offerors and contractors.
    According to data available in the Federal Procurement Data System 
for fiscal years 2019 through 2021, on average approximately 85,826 
contractors are awarded Federal contracts each year, of which 
approximately 61,797 contractors are small businesses. These 
contractors should be familiar with the existing purchasing 
requirements proposed for consolidation in FAR subpart 23.1. However, 
contractors will need to become familiar with the new omnibus clause at 
FAR 52.223-XX where they will find all applicable purchasing program 
requirements in one place. Contractors will no longer be required to 
review the stand-alone provisions and clauses at FAR 52.223-13, 52.223-
14, 52.223-15, 52.223-16, and 52.223-17 proposed for removal under this 
rule, all of which provide varying instructions to contractors on the 
requirements for existing purchasing programs, such as ENERGY 
STAR[supreg], FEMP, products containing recovered material, and 
EPEAT[supreg]-registered electronic products.
    As stated, the policy for agencies to procure sustainable products 
and services is not new with the majority of these requirements being 
in place since 2011 though agencies have had some discretion in how to 
implement. This proposed rule will help the Government ensure it is 
meeting its goal to procure sustainable products and services to the 
maximum extent practicable in order to reduce emissions, save natural 
resources, and protect individuals, communities, and the environment. 
Contractors that do not currently prioritize or propose sustainable 
products and services when developing offers in response to Government 
contracts may need to adjust their internal processes and supply 
chains, as necessary, to ensure that they are in fact delivering 
sustainable products and services under Government contracts. While 
this additional burden is acknowledged, it is not possible to quantify 
the potential burden for such activities or to estimate the number of 
entities potentially impacted by this change in means of policy 
communication and enforcement.

C. Other Changes

    While the clause at FAR 52.204-4 to require printing and copying 
double-sided on postconsumer fiber content paper is removed, the impact 
is not considered significant, since the majority of acquisitions are 
conducted electronically. Contractors will no longer be required to 
report information on hydrofluorocarbons under contracts that contain 
FAR clause 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons, and 52.223-12, Maintenance, 
Service, Repair, or Disposal of Refrigeration Equipment and Air 
Conditioners, a reduction in burden for contractors. The alternates to 
FAR clause 52.223-5, Pollution Prevention and Right-to-Know 
Information, and associated reporting requirements related to agency 
EMS are also removed; however, per FAR 52.223-19, contractors will 
still be required to comply with any agency specific requirements for 
EMS.

VI. 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 a significant regulatory action and, therefore, was subject to 
review under Section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA expect this proposed rule when final 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. 601-612. 
An Initial Regulatory Flexibility Analysis (IRFA) has been performed 
and is summarized as follows:

    E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through 
Federal Sustainability, directs agencies to reduce emissions, 
promote environmental stewardship, support resilient supply chains, 
drive innovation, and incentivize markets for sustainable products 
and services. As part of this effort and pursuant to the OMB, CEQ, 
and CPO Memorandum M-22-06 and the CEQ Implementing Instructions for 
E.O. 14057, agencies are required to purchase, to the maximum extent 
practicable and after meeting statutory mandates, sustainable 
products and services identified or recommended by EPA.
    DoD, GSA, and NASA are proposing to amend the FAR to restructure 
and update FAR part 23 to focus on current environmental and 
sustainability matters and to implement the requirements in E.O. 
14057 and associated implementing instructions for agencies to 
procure sustainable products and services to the maximum extent 
practicable. Promulgation of the FAR is authorized by 40

[[Page 51681]]

U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy 
provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
    This proposed rule seeks to streamline FAR part 23 by dedicating 
the part to environmental matters, consolidating purchasing program 
requirements in FAR subpart 23.1, dedicating FAR subpart 23.2 to 
energy savings performance contracts, consolidating hazardous and 
radioactive material requirements in FAR subpart 23.3, consolidating 
Federal facility requirements in FAR subpart 23.4, and dedicating 
FAR subpart 23.8 to requirements associated with greenhouse gas 
emissions.
    This rule proposes to implement the E.O. 14057 requirements for 
sustainable products and services in FAR subpart 23.1. As a result 
of this rule, the requirement for Federal agencies to ensure that 95 
percent of new contract actions are for sustainable products and 
services is replaced with the requirement for agencies to procure 
sustainable products and services to the maximum extent practicable. 
In prioritizing sustainable products and services, agencies shall 
ensure they are meeting existing statutory mandates and prioritize 
multi-attribute products and services, which are those that meet 
both statutory and other required EPA purchasing program 
requirements.
    Any small business competing on Federal contracts for products 
or services will need to become familiar with this rule. According 
to data available in the Federal Procurement Data System for fiscal 
years 2019 through 2021, on average approximately 85,826 contractors 
are awarded Federal contracts each year, of which approximately 
61,797 contractors (72 percent) are small businesses.
    Small businesses who do business with the Federal Government 
should be familiar with the existing statutory purchasing program 
requirements currently at FAR subparts 23.2, 23.4, and 23.8, as well 
as the requirement for agencies to procure environmentally 
preferable products, including EPEAT[supreg]-registered electronic 
products, in FAR subpart 23.7. Small businesses will need to become 
familiar with the new omnibus clause at FAR 52.223-XX, Sustainable 
Products and Services, which streamlines the purchasing program 
requirements in an omnibus clause. Small businesses will need to 
validate and ensure that they are providing products and services 
that fall into the following categories, unless the contracting 
officer has specified that certain sustainable products or services 
are not subject to the clause:
     Products containing recovered material designated by 
the EPA under the Comprehensive Procurement Guidelines (CPG) (see 
https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
     Energy efficient products that are ENERGY STAR[supreg] 
certified or Federal Energy Management Program (FEMP)-designated 
products (see https://www.energy.gov/eere/femp/search-energy-efficient-products and https://www.energystar.gov/products?s=mega).
     Biobased products meeting the content requirement of 
the U.S. Department of Agriculture (USDA) under the 
BioPreferred[supreg] program (see https://www.biopreferred.gov).
     Acceptable chemicals, products, and manufacturing 
processes listed under EPA's Significant New Alternatives Policy 
(SNAP) program, which ensures a safe and smooth transition away from 
substances that contribute to the depletion of stratospheric ozone 
(see https://www.epa.gov/snap).
     WaterSense[supreg] labeled (water efficient) products 
and services (see https://www.epa.gov/watersense/watersense-products).
     Safer Choice-certified products (products that contain 
safer chemical ingredients) (see https://www.epa.gov/saferchoice/products).
     Products and services that meet EPA Recommendations of 
Specifications, Standards, and Ecolabels, demonstrated through third 
party certification (see https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
    In addition to the resources identified for each purchasing 
program above, small businesses may also consult the Green 
Procurement Compilation available at https://sftool.gov/greenprocurement, which provides a comprehensive list of required 
sustainable products and services and other related sustainability 
guidance.
    Finally, several existing reporting requirements are being 
removed. Small businesses will no longer be required to report 
information on hydrofluorocarbons under contracts that contain FAR 
clause 52.223-11, Ozone-Depleting Substances and High Global Warming 
Potential Hydrofluorocarbons, and 52.223-12, Maintenance, Service, 
Repair, or Disposal of Refrigeration Equipment and Air Conditioners. 
Reporting requirements associated with agency EMSs in the alternates 
to FAR clause 52.223-5, Pollution Prevention and Right-to-Know 
Information, are also removed, though small businesses would still 
be required to comply with any agency specific requirements for EMS.
    This proposed rule does not duplicate, overlap, or conflict with 
other Federal rules. This proposed rule will continue to implement 
the following lead agency regulations on the statutory purchasing 
program requirements:
     EPA regulations on a Comprehensive Procurement 
Guideline for Products Containing Recovered Materials (40 CFR part 
247).
     Department of Energy regulations on Agency Procurement 
of Energy Efficient Products (10 CFR part 436, subpart C).
     USDA regulations on Guidelines for Designating Biobased 
Products for Federal Procurement (7 CFR part 3201).
     EPA regulations on the Protection of Stratospheric 
Ozone; Significant New Alternatives Policy Program (40 CFR part 82, 
subpart G).
    This rule does not include any proposed changes to the current 
greenhouse gas disclosure requirements at FAR 23.8 and the provision 
at FAR 52.223-22, except to renumber the section and paragraph 
numbers. DoD, GSA, and NASA have proposed changes to these 
requirements under a separate proposed rule (see FAR case 2021-015, 
Disclosure of Greenhouse Gas Emissions and Climate-related Financial 
Risk, published at 87 FR 68312, November 14, 2022).
    There are no significant alternatives to the proposed rule that 
would accomplish the stated objectives to ensure that agencies 
procure sustainable products and services to the maximum extent 
practicable.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this proposed rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2022-006), 
in correspondence.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies because 
the proposed rule contains information collection requirements. The 
rule proposes to renumber FAR clause 52.223-6 to 52.226-XX and transfer 
its information collection requirements from OMB Control Number 9000-
0107 to the new OMB Control Number 9000-0XXX for FAR part 26. The rule 
also proposes to remove the information collection requirements 
associated with coverage of EMS and facility compliance audits under 
FAR clause 52.223-5, and the requirement for contractors to report 
certain information related to hydrofluorocarbon content under FAR 
clauses 52.223-11 and 52.223-12. Accordingly, the Regulatory 
Secretariat Division has submitted to OMB a request for approval of a 
revision to ``OMB Control Number 9000-0107, Federal Acquisition 
Regulation Part 23 Requirements'' and approval of ``OMB Control Number 
9000-0XXX, Federal Acquisition Regulation Part 26 Requirements.''

A. Public Reporting Burden

    Public reporting burden for this collection of information includes 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.

[[Page 51682]]

1. OMB Control Number 9000-0XXX, Federal Acquisition Regulation Part 26 
Requirements
    The annual reporting burden is estimated as follows:
    Respondents: 228.
    Total Annual Responses: 228.
    Total Burden Hours: 114.
2. OMB Control Number 9000-0107, Federal Acquisition Regulation Part 23 
Requirements
    The annual reporting burden is estimated as follows:
    Respondents: 34,527.
    Total Annual Responses: 160,600.
    Total Burden Hours: 706,089.

B. Request for Comments Regarding Paperwork Burden

    Submit comments on these collections of information no later than 
October 2, 2023 through https://www.regulations.gov and follow the 
instructions on the site. All items submitted must cite ``OMB Control 
Number 9000-0XXX, Federal Acquisition Regulation Part 26 
Requirements,'' or ``OMB Control Number 9000-0107, Federal Acquisition 
Regulation Part 23 Requirements,'' as applicable. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting. If there are difficulties submitting comments, 
contact the GSA Regulatory Secretariat Division at 202-501-4755 or 
[email protected]. For both sets of information collections, public 
comments are particularly invited on:
     The necessity of this collection of information for the 
proper performance of the functions of Federal Government acquisitions, 
including whether the information will have practical utility;
     The accuracy of the estimate of the burden of this 
collection of information;
     Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
     Ways to minimize the burden of the collection of 
information on respondents, including the use of automated collection 
techniques or other forms of information technology.
    Requesters may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat Division by 
calling 202-501-4755 or emailing [email protected]. Please cite OMB 
Control Number 9000-0107, Federal Acquisition Regulation Part 23 
Requirements, or OMB Control Number 9000-0XXX, Federal Acquisition 
Regulation Part 26 Requirements, in all correspondence.

List of Subjects in 48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13, 
15, 18, 23, 26, 36, 37, 39, 42, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2, 
4, 5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36, 37, 39, 42, and 52 as 
set forth below:

0
1. The authority citation for 48 CFR parts 1, 2, 4, 5, 7, 9, 10, 11, 
12, 13, 15, 18, 23, 26, 36, 37, 39, 42, and 52 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
2. In section 1.106, amend the table by--
0
a. Removing the entry for ``23.602'';
0
b. Revising the entry for ``52.223-2'';
0
c. Removing the entry for ``52.223-4'';
0
d. Revising the entry for ``52.223-5'';
0
e. Removing the entry for ``52.223-6(b)(5)'';
0
f. Revising the entries for ``52.223-9'', ``52.223-11'', ``52.223-12'', 
and ``52.223-22''; and
0
g. Adding in numerical order an entry for ``52.226-XX''.
    The revisions and addition read as follows:


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                            OMB control
                       FAR segment                              No.
------------------------------------------------------------------------
 
                                * * * * *
52.223-2................................................       9000-0107
52.223-5................................................       9000-0107
 
                                * * * * *
52.223-9................................................       9000-0107
52.223-11...............................................       9000-0107
52.223-12...............................................       9000-0107
52.223-22...............................................       9000-0107
 
                                * * * * *
52.226-XX...............................................       9000-XXXX
 
                                * * * * *
------------------------------------------------------------------------

PART 2--DEFINITIONS OF WORDS AND TERMS

0
3. Amend section 2.101, in paragraph (b)(2) by--
0
a. Revising the definition ``Biobased product'';
0
b. In the definition of ``Conviction'', removing ``23.5'' and 
``23.503'' and adding ``26.5'' and ``26.503'' in their places, 
respectively;
0
c. In the definition of ``Energy-savings performance contract'':
0
i. Removing ``Energy-savings performance contract'' and adding ``Energy 
savings performance contract'' in its place; and
0
ii. Revising paragraph (3);
0
d. Revising the definition of ``Environmentally preferable'';
0
e. Removing the definitions of ``Global warming potential'' and ``High 
global warming potential hydrofluorocarbons'';
0
f. Revising the definition of ``Recovered material'';
0
g. Removing the definitions of ``Renewable energy'' and ``Renewable 
energy technology'';
0
h. In the definition of ``Sustainable acquisition'', removing from the 
introductory text ``acquiring goods'' and adding ``acquiring products'' 
in its place;
0
i. Adding in alphabetical order the definition ``Sustainable products 
and services'';
0
j. In the definition of ``United States'', revising paragraph (9); and
0
k. Removing the definition ``Water consumption intensity''.
    The revisions and addition read as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    Biobased product means a product determined by the U.S. Department 
of Agriculture to be a commercial product or industrial product (other 
than food or feed) that is composed, in whole or in significant part, 
of biological products, including renewable domestic agricultural 
materials and forestry materials, or that is an intermediate ingredient 
or feedstock. The term includes, with respect to forestry materials, 
forest products that meet biobased content requirements, 
notwithstanding the market share the product holds, the age of the 
product, or whether the market for the product is new or emerging (7 
U.S.C. 8101) (7 CFR 3201.2).
* * * * *
    Energy savings performance contract * * *

[[Page 51683]]

    (3) Guarantee future energy and cost savings to the Government (42 
U.S.C. 8287) (10 CFR 436.31).
    Environmentally preferable means, in the case of a product or 
service, having a lesser or reduced effect on human health and the 
environment when compared with competing products or services that 
serve the same purpose. This comparison may consider raw materials 
acquisition, production, manufacturing, packaging, distribution, reuse, 
operation, maintenance, or disposal of the product or service (section 
314 of Pub. L. 107-314, 10 U.S.C. Chapter 223 Note).
* * * * *
    Recovered material means waste materials and by-products recovered 
or diverted from solid waste, but the term does not include those 
materials and by-products generated from, and commonly reused within, 
an original manufacturing process (42 U.S.C. 6903).
* * * * *
    Sustainable products and services means products and services that 
are subject to and meet the following applicable statutory mandates and 
directives for purchasing:
    (1) Statutory purchasing programs. (i) Products containing 
recovered material designated by the U.S. Environmental Protection 
Agency (EPA) under the Comprehensive Procurement Guidelines (42 U.S.C. 
6962) (40 CFR part 247) (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
    (ii) Energy- and water-efficient products that are ENERGY 
STAR[supreg] certified or Federal Energy Management Program (FEMP)-
designated products (42 U.S.C. 8259b) (10 CFR part 436, subpart C) 
(https://www.energy.gov/eere/femp/search-energy-efficient-products) 
(https://www.energystar.gov/products?s=mega).
    (iii) Biobased products meeting the content requirement of the U.S. 
Department of Agriculture under the BioPreferred[supreg] program (7 
U.S.C. 8102) (7 CFR part 3201) (https://www.biopreferred.gov).
    (iv) Acceptable chemicals, products, and manufacturing processes 
listed under EPA's Significant New Alternatives Policy (SNAP) program, 
which ensures a safe and smooth transition away from substances that 
contribute to the depletion of stratospheric ozone (42 U.S.C. 7671l) 
(40 CFR part 82, subpart G) (https://www.epa.gov/snap).
    (2) Required EPA purchasing programs. (i) WaterSense[supreg] 
labeled (water efficient) products and services (https://www.epa.gov/watersense/watersense-products).
    (ii) Safer Choice-certified products (products that contain safer 
chemical ingredients) (https://www.epa.gov/saferchoice/products).
    (iii) Products and services that meet EPA Recommendations of 
Specifications, Standards, and Ecolabels (https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
* * * * *
    United States * * *
    (9) For use in subpart 23.1, see definition at 23.101.
* * * * *

PART4--ADMINISTRATIVE AND INFORMATION MATTERS

Subpart 4.3 [Removed and Reserved]

0
4. Remove and reserve subpart 4.3.


4.602  [Amended]

0
5. Amend section 4.602 by removing from paragraph (a)(3) ``products, 
and high-performance'' and adding ``products, services, and high-
performance'' in its place.


4.1202  [Amended]

0
6. Amend section 4.1202 by removing paragraph (a)(25) and redesignating 
paragraphs (a)(26) through (34) as paragraphs (a)(25) through (33).

PART 5--PUBLICIZING CONTRACT ACTIONS

0
7. Amend section 5.207 by revising paragraph (c)(11) to read as 
follows:


5.207  Preparation and transmittal of synopses.

* * * * *
    (c) * * *
    (11) Sustainable acquisition requirements, such as a description of 
high-performance sustainable building practices required, if for 
design, construction, renovation, repair, or deconstruction (see part 
23 and 36.104).
* * * * *

PART 7--ACQUISITION PLANNING

0
8. Amend section 7.103 by revising paragraph (p) to read as follows:


7.103  Agency-head responsibilities.

* * * * *
    (p) Ensuring that agency planners--
    (1) Comply with the policy in 11.002(d) regarding procurement of 
sustainable products and services (as defined in 2.101) in accordance 
with subpart 23.1;
    (2) Comply with the Guiding Principles for Sustainable Federal 
Buildings and Associated Instructions (Guiding Principles), for the 
design, construction, renovation, repair, or deconstruction of Federal 
buildings (see 36.104). The Guiding Principles can be accessed at 
https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf; and
    (3) Require contractor compliance with Federal environmental 
requirements, when the contractor is operating Government-owned 
facilities or vehicles, to the same extent as the agency would be 
required to comply if the agency operated the facilities or vehicles.
* * * * *
0
9. Amend section 7.105 by revising paragraph (b)(17) to read as 
follows:


7.105  Contents of written acquisition plans.

* * * * *
    (b) * * *
    (17) Environmental and energy conservation objectives. Discuss--
    (i) All applicable environmental and energy conservation objectives 
associated with the acquisition (see part 23);
    (ii) The applicability of an environmental assessment or 
environmental impact statement (see 40 CFR part 1502);
    (iii) The proposed resolution of environmental issues; and
    (iv) Any sustainable acquisition requirements to be included in the 
solicitation and contract (see 11.002 and part 23).
* * * * *

PART 9--CONTRACTOR QUALIFICATIONS


9.405  [Amended]

0
10. Amend section 9.405 by removing from paragraph (a) ``23.506(e)'' 
and adding ``26.505(e)'' in its place.


9.406-1  [Amended]

0
11. Amend section 9.406-1 by removing from paragraph (c) ``23.506(e)'' 
and adding ``26.505(e)'' in its place.


9.406-2  [Amended]

0
12. Amend section 9.406-2 by--
0
a. Removing from paragraph (b)(1)(ii)(A) ``52.223-6'' and adding 
``52.226-XX'' in its place; and
0
b. Removing from paragraph (b)(1)(ii)(B) ``23.504'' and adding 
``26.504'' in its place.


9.406-4  [Amended]

0
13. Amend section 9.406-4 by removing from paragraph (a)(1)(i) 
``23.506'' and adding ``26.505'' in its place.

[[Page 51684]]

9.407-1  [Amended]

0
14. Amend section 9.407-1 by removing from paragraph (d) ``23.506(e)'' 
and adding ``26.505(e)'' in its place.


9.407-2  [Amended]

0
15. Amend section 9.407-2 by--
0
a. Removing from paragraph (a)(4)(i) ``52.223-6'' and adding ``52.226-
XX'' in its place; and
0
b. Removing from paragraph (a)(4)(ii) ``23.504'' and adding ``26.504'' 
in its place.

PART 10--MARKET RESEARCH

0
16. Amend section 10.001 by revising paragraph (a)(3)(v) to read as 
follows:


10.001  Policy.

    (a) * * *
    (3) * * *
    (v) Ensure maximum practicable use of sustainable products and 
services (as defined in 2.101) in accordance with subpart 23.1;
* * * * *

PART 11--DESCRIBING AGENCY NEEDS

0
17. Amend section 11.002 by revising paragraphs (d)(1) and (d)(2) 
introductory text and adding paragraph (d)(3) to read as follows:


11.002  Policy.

* * * * *
    (d)(1) Agencies shall procure sustainable products and services (as 
defined in 2.101) in accordance with subpart 23.1.
    (2) Unless it is not practicable (see 23.104(a)) or an exception or 
exemption applies (see 23.105 and 23.106, respectively), agencies shall 
incorporate the use of sustainable products and services when--
* * * * *
    (3) The Green Procurement Compilation (GPC) available at https://sftool.gov/greenprocurement provides a comprehensive list of 
sustainable products and services and other related sustainable 
acquisition guidance. Agencies should--
    (i) Consult the GPC when determining which purchasing programs 
apply to a specific product or service; and
    (ii) Incorporate into agency requirements any required standards, 
specifications, or ecolabels identified in the GPC for a specific 
product or service.
* * * * *


11.301  [Removed]

0
18. Remove section 11.301.


11.302  [Redesignated as 11.301]

0
19. Redesignate section 11.302 as section 11.301.


11.303  [Removed]

0
20. Remove section 11.303.


11.304  [Redesignated as 11.302]

0
21. Redesignate section 11.304 as section 11.302.

PART 12--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES


12.503  [Amended]

0
22. Amend section 12.503 by removing from paragraph (a)(8) ``23.501'' 
and adding ``26.501'' in its place.


12.504  [Amended]

0
23. Amend section 12.504 by removing from paragraph (a)(10) ``23.5'' 
and adding ``26.5'' in its place.

PART 13--SIMPLIFIED ACQUISITION PROCEDURES


13.006  [Amended]

0
24. Amend section 13.006 by removing from paragraph (f) ``52.223-6'' 
and adding ``52.226-XX'' in its place.


13.201  [Amended]

0
25. Amend section 13.201 by removing from paragraph (f) ``subparts 
23.1, 23.2, 23.4, and 23.7'' and adding ``subpart 23.1'' in its place.
0
26. Amend section 13.302-5 by adding paragraph (d)(5) to read as 
follows:


13.302-5  Clauses.

* * * * *
    (d) * * *
    (5) The contracting officer shall delete 52.223-XX, Sustainable 
Products and Services, from the clause at 52.213-4 and mark the 
paragraph as reserved when--
    (i)(A) There is a written justification in accordance with 
23.104(a) that it is not practicable to procure sustainable products 
and services;
    (B) An exception under 23.105 applies; or
    (C) An exemption under 23.106 applies; and
    (ii) The scope of the written justification, exception, or 
exemption covers the entirety of the contract action requirements.

PART 15--CONTRACTING BY NEGOTIATION


15.603  [Amended]

0
27. Amend section 15.603 by removing from paragraph (e) ``energy-
savings'' and adding ``energy savings'' in its place.

PART 18--EMERGENCY ACQUISITIONS

0
28. Amend section 18.202 by adding paragraph (e) to read as follows:


18.202  Defense or recovery from certain events.

* * * * *
    (e) Sustainable products and services. Contracting officers are 
encouraged, but not required, to procure sustainable products and 
services if the head of the agency determines the supplies or services 
are to be used to facilitate defense against or recovery from cyber, 
nuclear, biological, chemical, or radiological attack; to facilitate 
provision of international disaster assistance; or to support response 
to an emergency or major disaster (see 23.106(c)).

PART 23--ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY

0
29. Revise the heading for part 23 to read as set forth above.
0
30. Revise section 23.000 to read as follows:


23.000  Scope of part.

    This part prescribes acquisition policies and procedures supporting 
the Government's program to protect and improve the quality of the 
environment, to foster markets for sustainable products and services, 
and to ensure proper handling and notification of hazardous materials.
0
31. Amend section 23.001 by--
0
a. Removing the definition of ``Greenhouse gases'' and adding the 
definition of ``Greenhouse gas'' in its place; and
0
b. Removing the definition ``United States''.
    The addition reads as follows:


23.001  Definitions.

* * * * *
    Greenhouse gas means carbon dioxide, methane, nitrous oxide, 
hydrofluorocarbons, perfluorocarbons, nitrogen trifluoride, or sulfur 
hexafluoride.
* * * * *
0
32. Revise section 23.002 to read as follows:


23.002  Policy.

    In accordance with section 208(a) of Executive Order 14057, 
Catalyzing Clean Energy Industries and Jobs Through Federal 
Sustainability, agencies shall reduce emissions, including greenhouse 
gas emissions; promote environmental stewardship; support resilient 
supply chains; drive

[[Page 51685]]

innovation; and incentivize markets for sustainable products and 
services.
0
33. Revise subpart 23.1 to read as follows:
Subpart 23.1--Sustainable Products and Services
Sec.
23.100 Scope of subpart.
23.101 Definitions.
23.102 Authorities.
23.103 Policy.
23.104 General procedures.
23.105 Exceptions.
23.106 Exemptions.
23.107 Statutory purchasing programs.
23.107-1 Products containing recovered materials.
23.107-2 Biobased products.
23.107-3 Energy-consuming products and water-consuming products.
23.107-4 Products that contain, use, or are manufactured with ozone-
depleting substances or products that contain or use high global 
warming potential hydrofluorocarbons.
23.108 Required Environmental Protection Agency purchasing programs.
23.108-1 Water-efficient products.
23.108-2 Chemically-intensive products.
23.108-3 Products and services that are subject to EPA 
Recommendations of Specifications, Standards, and Ecolabels.
23.109 Solicitation provisions and contract clauses.

Subpart 23.1--Sustainable Products and Services


23.100  Scope of subpart.

    This subpart provides policies and procedures for procuring 
sustainable products and services. This subpart applies to all contract 
actions, including those using part 12 procedures for the acquisition 
of commercial products, including commercially available off-the-shelf 
(COTS) items, and commercial services and acquisitions valued at or 
below the micro-purchase threshold.


23.101  Definitions.

    As used in this subpart--
    Contract action means any oral or written action that results in 
the purchase, rent, or lease of supplies or equipment, services, or 
construction.
    Environmental Protection Agency (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 recommended recovered material 
content levels and other purchasing recommendations in a related 
Recovered Materials Advisory Notice (RMAN) (available at https://www.epa.gov/smm/regulatory-background-comprehensive-procurement-guideline-program-cpg#rman).
    Global warming potential means how much a given mass of a chemical 
contributes to global warming over a given time period compared to the 
same mass of carbon dioxide. Carbon dioxide's global warming potential 
is defined as 1.0.
    High global warming potential hydrofluorocarbons means any 
hydrofluorocarbons in a particular end use for which EPA's Significant 
New Alternatives Policy (SNAP) program has identified other acceptable 
alternatives that have lower global warming potential. The SNAP list of 
alternatives is found at 40 CFR part 82, subpart G, with supplemental 
tables of alternatives available at https://www.epa.gov/snap/.
    Hydrofluorocarbons means compounds that only contain hydrogen, 
fluorine, and carbon.
    Ozone-depleting substance means any substance the EPA designates in 
40 CFR part 82 as--
    (1) Class I, including, but not limited to, chlorofluorocarbons, 
halons, carbon tetrachloride, and methyl chloroform; or
    (2) Class II, including, but not limited to, 
hydrochlorofluorocarbons.
    United States, as defined in the Executive Office of the 
President's Office of Management and Budget, Council on Environmental 
Quality, and Climate Policy Office Memorandum M-22-06, when used in a 
geographical sense means--
    (1) The fifty States;
    (2) The District of Columbia;
    (3) The commonwealths of Puerto Rico and the Northern Mariana 
Islands;
    (4) The territories of Guam, American Samoa, and the United States 
Virgin Islands; and
    (5) Associated territorial waters and airspace.
    U.S. Department of Agriculture (USDA)-designated product category 
means a generic grouping of products that are or can be made with 
biobased materials--
    (1) That are listed by USDA in a procurement guideline (7 CFR part 
3201, subpart B); and
    (2) For which USDA has provided purchasing recommendations 
(available at https://www.biopreferred.gov).


23.102  Authorities.

    (a) Section 208 of Executive Order 14057, Catalyzing Clean Energy 
Industries and Jobs Through Federal Sustainability, dated December 8, 
2021.
    (b) Paragraph G of section I of the Executive Office of the 
President's Office of Management and Budget, Council on Environmental 
Quality, and Climate Policy Office Memorandum M-22-06, Catalyzing Clean 
Energy Industries and Jobs Through Federal Sustainability, dated 
December 8, 2021.
    (c) Implementing instructions for Executive Order 14057, Catalyzing 
Clean Energy Industries and Jobs Through Federal Sustainability, dated 
August 2022.
    (d) The authorities referenced in 23.107 for statutory purchasing 
programs.


23.103  Policy.

    (a) Agencies shall procure sustainable products and services (as 
defined in 2.101) to the maximum extent practicable.
    (1) Procuring sustainable products and services is considered 
practicable, unless the agency cannot acquire products or services--
    (i) Competitively within a reasonable performance schedule;
    (ii) That meet reasonable performance requirements; or
    (iii) At a reasonable price.
    (2) For ENERGY STAR[supreg] or Federal Energy Management Program 
(FEMP)-designated products, a price is reasonable if it is cost-
effective over the life of the product taking energy cost savings into 
account (42 U.S.C. 8259b(b)(2)). Life-cycle cost savings tools are 
available at https://www.energystar.gov/buildings/save_energy_commercial_buildings/ways_save/energy_efficient_products 
and https://www.nrel.gov/analysis/tech-lcoe.html.
    (b) When procuring sustainable products and services, agencies 
shall--
    (1) Ensure compliance with all applicable statutory purchasing 
program requirements (see 23.107); and
    (2) Prioritize multi-attribute sustainable products and services 
(see 23.104(c)(2)).
    (c) Regarding products under contract actions for services, the 
contractor is required to provide products that meet the definition of 
sustainable products and services at 2.101, if the products are--
    (1) Delivered to the Government during performance;
    (2) Acquired by the contractor for use in performing services under 
a Government contract where the cost of the products is a direct cost 
to a Government contract (versus costs which are normally applied to a 
contractor's general and administrative expenses or indirect costs); or
    (3) Furnished by the contractor for use by the Government, 
including use at Government-owned contractor-operated facilities.

[[Page 51686]]

23.104  General procedures.

    (a) Maximum extent practicable. If the requiring activity submits a 
written justification addressing the reasons described in 23.103(a), 
the contracting officer may consider it not practicable to procure 
sustainable products or services. A written justification may be for a 
specific product or service or at the line item or contract level. The 
contracting officer shall maintain the written justification in the 
contract file.
    (b) Identification. The contracting officer shall ensure the 
solicitation and contract identify any products and services that are 
not subject to the requirements of this subpart and the clause at 
52.223-XX, Sustainable Products and Services, based on the written 
justification under paragraph (a) of this section, an exception at 
23.105, or an exemption at 23.106, unless the justification, exception, 
or exemption covers the entirety of the contract action requirements.
    (c) Prioritization. Agencies shall prioritize sustainable products 
and services as follows:
    (1) Procure products and services that meet all applicable 
statutory purchasing program requirements (see 23.107). When both an 
EPA-designated item (see 23.107-1) and a biobased product in a USDA-
designated product category (see 23.107-2) could be used for the same 
purposes, and both meet the agency's needs, procure the EPA-designated 
item.
    (2) Consistent with other statutory procurement requirements, 
prioritize multi-attribute sustainable products and services, which are 
those that meet all applicable statutory purchasing program 
requirements (see 23.107) and one or more required EPA purchasing 
programs (see 23.108).
    (3) If no statutory purchasing program requirements apply, procure 
sustainable products and services that meet required EPA purchasing 
program requirements (see 23.108).
    (4) Procure products and services that meet required EPA purchasing 
programs (see paragraph (2) of the definition of ``sustainable products 
and services'' in 2.101) unless doing so would conflict with statute, 
Executive order, or regulation that impose domestic manufacturing and 
content requirements, such as the Buy American statute (41 U.S.C. 
chapter 83; see part 25) and the Berry Amendment (10 U.S.C. 4862).
    (d) Resource. The Green Procurement Compilation (GPC) available at 
https://sftool.gov/greenprocurement provides a comprehensive list of 
sustainable products and services and other related sustainable 
acquisition guidance. In addition to the resources identified for each 
purchasing program listed in 23.107 and 23.108, agencies should consult 
the GPC when determining which purchasing programs apply to a specific 
product or service.


23.105  Exceptions.

    The following are excepted from the requirement to procure 
sustainable products and services:
    (a) Contracts performed outside of the United States, unless the 
agency head determines that such application is in the interest of the 
United States.
    (b) Weapon systems; however, compliance with applicable agency 
affirmative procurement programs is required for recovered materials 
per 23.107-1 (see 23.109(b)) (42 U.S.C. 6962) and for alternatives for 
ozone depleting substances per 23.107-4 (see 23.109(d)) (42 U.S.C. 
7671l), unless a written justification exists as described at 23.104(a) 
(42 U.S.C. 6962(c)(1) and 7 U.S.C. 8102(a)(1)(B)).
    (c) Energy-consuming products or systems designed or procured for 
combat or combat-related missions are not subject to the requirements 
in 23.107-3 (42 U.S.C. 8259b(a)(5)).
    (d) Biobased products to be used in military equipment (products or 
systems designed or procured for combat or combat-related missions), 
spacecraft systems, or launch support equipment are not subject to the 
requirements in 23.107-2 (7 CFR 3201.3(e)).


23.106  Exemptions.

    (a) The Director of National Intelligence may exempt an 
intelligence activity of the United States and related personnel, 
resources, and facilities to the extent the Director determines 
necessary to protect intelligence sources and methods from unauthorized 
disclosure.
    (b) The head of an agency may exempt the following:
    (1) Particular agency activities and related personnel, resources, 
and facilities when it is in the interest of national security, to 
protect intelligence sources and methods from unauthorized disclosure, 
or where necessary to protect undercover law enforcement operations 
from unauthorized disclosure. The agency shall notify the Chair of the 
Council on Environmental Quality (CEQ) in writing within 30 days of 
issuance of the exemption under this paragraph (b)(1).
    (2) On an individual or class basis, any manned and unmanned 
vehicle, vessel, aircraft, or non-road equipment that is used in combat 
support, combat service support, military tactical or relief 
operations, or training for such operations or spaceflight vehicles, 
including associated ground-support equipment.
    (c) Contracting officers are encouraged, but not required, to 
procure sustainable products and services if the head of the agency 
determines the supplies or services are to be used to facilitate 
defense against or recovery from cyber, nuclear, biological, chemical, 
or radiological attack; to facilitate provision of international 
disaster assistance; or to support response to an emergency or major 
disaster.
    (d) The head of the agency may submit to the President, through the 
Chair of CEQ, a request for an exemption of an agency activity, and 
related personnel, resources, and facilities from this subpart for any 
reason not otherwise addressed in this section.


23.107  Statutory purchasing programs.

    Agencies shall ensure compliance with statutory purchasing program 
requirements described in 23.107-1 through 23.107-4.


23.107-1  Products containing recovered materials.

    (a) Authorities. The Resource Conservation and Recovery Act of 1976 
(RCRA), 42 U.S.C. 6962, as implemented at 40 CFR part 247.
    (b) EPA Comprehensive Procurement Guidelines (CPG) Program. Under 
RCRA, EPA must designate items that are or can be made with recovered 
materials and must also recommend practices to assist procuring 
agencies in meeting their obligations.
    (c) Applicability. (1) This section applies to contract actions 
involving an EPA-designated item, if--
    (i) The price of the EPA-designated item exceeds $10,000; or
    (ii) The aggregate amount paid for multiple purchases of the EPA-
designated item, or a functionally equivalent item, in the preceding 
fiscal year was $10,000 or more.
    (2) While micro-purchases are included in determining the aggregate 
amount paid under paragraph (c)(1) of this section, it is not necessary 
for an agency to track micro-purchases when--
    (i) The agency anticipates the aggregate amount paid will exceed 
$10,000; or
    (ii) The agency intends to establish or continue an affirmative 
procurement program as described in paragraph (d) of this section in 
the following fiscal year.
    (d) Agency affirmative procurement program. An agency shall 
establish an affirmative procurement program for EPA-designated items 
if the agency's purchases of EPA-designated items

[[Page 51687]]

exceed the threshold set forth in paragraph (c)(1) of this section.
    (1) Agency affirmative procurement programs must include--
    (i) A recovered materials preference program;
    (ii) A program to promote the recovered materials preference 
program;
    (iii) A program for requiring reasonable estimates and 
certification of recovered material used in the performance of 
contracts, including a preaward certification that products will meet 
EPA recommendations (see 52.223-4, Recovered Material Certification), 
and either an estimate or a certification at contract completion (see 
52.223-9, Estimate of Percentage of Recovered Material Content for EPA-
Designated Items, and its Alternate), as well as agency procedures for 
verification of estimates and certifications;
    (iv) Annual review and monitoring of the effectiveness of the 
affirmative procurement program; and
    (v) Guidance for purchases of EPA-designated items at or below the 
micro-purchase threshold.
    (2) Technical or requirements personnel and procurement personnel 
are responsible for the preparation, implementation, and monitoring of 
affirmative procurement programs.
    (3) Agencies have a period of 1 year to revise their affirmative 
procurement program(s) after the designation of any new item by EPA.
    (e) Procedures. The following procedures apply when the thresholds 
set forth in paragraph (c)(1) of this section are exceeded.
    (1) Once an item has been designated by EPA, agencies shall 
purchase conforming products to the maximum extent practicable in 
accordance with 23.104(a), unless a justification, exception, or 
exemption applies (see 23.104(a), 23.105, and 23.106, respectively).
    (2) Agencies may use their own specifications or commercial product 
descriptions when procuring products containing recovered materials; 
however, the contract should specify that the product is composed of 
the--
    (i) Highest percentage of recovered materials practicable; or
    (ii) Minimum content standards in accordance with EPA's RMANs.
    (3) When acquiring products with recovered material, the 
contracting officer may request information or data on such products, 
including recycled content or related product standards (see 
11.301(c)).
    (f) Resources. (1) For information on EPA-designated items and 
associated minimum content standards, see https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products.
    (2) Contracting officers should also consult their agency's 
affirmative procurement program for agency-specific guidance.


23.107-2  Biobased products.

    (a) Authorities. (1) The Farm Security and Rural Investment Act of 
2002 (FSRIA), 7 U.S.C. 8102, as implemented at 7 CFR part 3201.
    (2) The Energy Policy Act of 2005, Public Law 109-58.
    (b) USDA BioPreferred[supreg] Program. The BioPreferred Program was 
created in the 2002 Farm Bill and is managed by the USDA. The goal of 
the BioPreferred Program is to increase the purchase and use of 
biobased products (as defined in 2.101) by agencies.
    (c) Applicability. (1) This section applies to contract actions 
involving a biobased product in a USDA-designated product category if--
    (i) The price of the biobased product exceeds $10,000; or
    (ii) The aggregate amount paid for multiple purchases of the 
biobased product, or for a functionally equivalent product, in the 
preceding fiscal year was $10,000 or more.
    (2) While micro-purchases are included in determining the aggregate 
amount paid under paragraph (c)(1) of this section, it is not necessary 
for an agency to track micro-purchases when--
    (i) The agency anticipates the aggregate amount paid will exceed 
$10,000; or
    (ii) The agency intends to establish or continue an affirmative 
procurement program in the following fiscal year.
    (d) Agency affirmative procurement program. An agency shall 
establish an affirmative procurement program for biobased products in 
USDA-designated product categories if the agency's purchases of such 
products exceed the threshold set forth in paragraph (c)(1) of this 
section.
    (1) Agency affirmative procurement programs must include--
    (i) A biobased products preference program;
    (ii) A program to promote the biobased products preference program;
    (iii) A program for requiring preaward certification that products 
meet USDA recommendations (see 52.223-1, Biobased Product 
Certification) and reporting on biobased products used in performance 
of contracts (see 52.223-2, Reporting of Biobased Products Under 
Service and Construction Contracts); and
    (iv) Annual review and monitoring of the effectiveness of the 
program.
    (2) Technical or requirements personnel and procurement personnel 
are responsible for the preparation, implementation, and monitoring of 
affirmative procurement programs.
    (3) Agencies have a period of 1 year to revise their procurement 
program(s) after USDA updates any USDA-designated product categories.
    (e) Procedures. The following procedures apply when the thresholds 
set forth in paragraph (c)(1) of this section are exceeded.
    (1) Once a biobased product is included in a USDA-designated 
product category, agencies shall purchase conforming products to the 
maximum extent practicable in accordance with 23.104(a), unless a 
justification, exception, or exemption applies (see 23.104(a), 23.105, 
and 23.106, respectively).
    (2) Agencies may use their own specifications or commercial product 
descriptions when procuring biobased products; however, the contract 
should specify that the biobased product is composed of the--
    (i) Highest percentage of biobased material practicable; or
    (ii) USDA's recommended minimum contents standards.
    (3) When acquiring biobased products, the contracting officer may 
request information or data on such products, including biobased 
content or related standards of the products (see 11.301(c)).
    (4) Agencies shall treat as eligible for the preference for 
biobased products, products from designated countries, as defined in 
25.003, provided that those products--
    (i) Meet the criteria for the definition of biobased product, 
except that the products need not meet the requirement that renewable 
agricultural materials or forestry materials in such product must be 
domestic; and
    (ii) Otherwise meet all requirements for participation in the 
preference program.
    (f) Resources. (1) For information on USDA-designated product 
categories and minimum content standards for biobased products, see 
https://www.biopreferred.gov.
    (2) Contracting officers should also consult their agency's 
affirmative procurement program for agency-specific guidance.


23.107-3  Energy-consuming products and water-consuming products.

    (a) Authorities. (1) Energy Policy and Conservation Act (42 U.S.C. 
6361(a)(1)).
    (2) National Energy Conservation Policy Act (42 U.S.C. 8253, 8259b, 
and 8262g).

[[Page 51688]]

    (3) Executive Order 11912 of April 13, 1976, Delegations of 
Authority under the Energy Policy and Conservation Act.
    (4) Executive Order 13221 of July 31, 2001, Energy-Efficient 
Standby Power Devices.
    (b) Programs--(1) ENERGY STAR[supreg] Program. The ENERGY 
STAR[supreg] program is a voluntary product-labeling initiative that 
identifies and promotes energy and water efficiency and the reduction 
of greenhouse gas emissions. This joint U.S. EPA and Department of 
Energy program helps buyers save money and protect the environment 
through energy- and water-efficient products and practices.
    (2) Federal Energy Management Program (FEMP). FEMP publishes 
acquisition guidance to help Federal buyers meet requirements for 
purchasing energy-efficient and water-efficient products. In addition, 
in product categories not covered by the ENERGY STAR[supreg] program, 
FEMP sets efficiency requirements for product categories that have the 
potential to generate significant Federal energy savings.
    (c) Procedures. To the maximum extent practicable in accordance 
with 23.104(a), unless a justification, exception, or exemption applies 
(see 23.104(a), 23.105, and 23.106, respectively)--
    (1) When acquiring energy- and water-consuming products listed in 
the ENERGY STAR[supreg] Program or FEMP--
    (i) Agencies shall purchase ENERGY STAR[supreg] certified or FEMP-
designated products; and
    (ii) For products that consume power in a standby mode and are 
listed on FEMP's Low Standby Power Devices product listing at https://www.energy.gov/eere/femp/low-standby-power-product-list, agencies 
shall--
    (A) Purchase items that meet FEMP's standby power wattage 
recommendation or document the reason for not purchasing such items; or
    (B) If FEMP has listed a product without a corresponding wattage 
recommendation, purchase items that use no more than one watt in their 
standby power consuming mode. When it is impracticable to meet the one-
watt requirement, agencies shall purchase items with the lowest standby 
wattage practicable; and
    (2) When contracting for services or construction that will include 
the provision of energy- and water-consuming products, agencies shall 
specify products that comply with the applicable requirements in 
paragraph (c)(1) of this section.
    (d) Resources. (1) For information on products under the ENERGY 
STAR[supreg] Program, go to https://www.energystar.gov/products.
    (2) For information on energy-efficient products, go to https://www.energy.gov/eere/femp/search-energy-efficient-products.
    (3) For information on low standby power products at https://www.energy.gov/eere/femp/low-standby-power-product-purchasing-requirements-and-compliance-resources.


23.107-4  Products that contain, use, or are manufactured with ozone-
depleting substances or products that contain or use high global 
warming potential hydrofluorocarbons.

    (a) Authorities. (1) Title VI of the Clean Air Act (42 U.S.C. 7671, 
et seq.).
    (2) Section 706 of Division D, title VII of the Omnibus 
Appropriations Act, 2009 (Pub. L. 111-8).
    (3) EPA regulations, Protection of Stratospheric Ozone (40 CFR part 
82).
    (b) Program. The EPA SNAP Program.
    (c) Agency programs. Agencies shall implement cost-effective 
programs to minimize the procurement of materials and substances that 
contribute to the depletion of stratospheric ozone and/or result in the 
use, release, or emission of high global warming potential 
hydrofluorocarbons.
    (d) Procedures. Agencies shall--
    (1) Give preference to the procurement of acceptable alternative 
chemicals, products, and manufacturing processes that reduce overall 
risks to human health and the environment by minimizing--
    (i) The depletion of ozone in the upper atmosphere; and
    (ii) The potential use, release, or emission of high global warming 
potential hydrofluorocarbons;
    (2) In preparing specifications and purchase descriptions and in 
the acquisition of products and services--
    (i) Comply with the requirements of title VI of the Clean Air Act; 
section 706 of division D, title VII of Public Law 111-8; and 40 CFR 
82.84(a)(2) through (5);
    (ii) Substitute acceptable alternatives to ozone-depleting 
substances, as identified under 42 U.S.C. 7671k, to the maximum extent 
practicable, as provided in 40 CFR 82.84(a)(1), except in the case of 
Class I substances being used for specified essential uses, as 
identified under 40 CFR 82.4(n); and
    (iii) Unless a particular contract requires otherwise, specify 
that, when feasible, contractors shall use another acceptable 
alternative in lieu of a high global warming potential 
hydrofluorocarbon in products and services in a particular end use for 
which EPA's SNAP program has identified other acceptable alternatives 
that have lower global warming potential.
    (e) Resource. Refer to EPA's SNAP program website at https://www.epa.gov/snap for the list of alternatives found at 40 CFR part 82, 
subpart G, as well as supplemental tables of alternatives.


23.108  Required Environmental Protection Agency purchasing programs.

    In accordance with 23.104(c), contracting officers shall, after 
meeting statutory purchasing program requirements in 23.107, purchase 
to the maximum extent practicable products and services that meet EPA 
purchasing program requirements described in 23.108-1 through 23.108-3.


23.108-1  Water-efficient products.

    (a) Program. EPA's WaterSense[supreg] Program makes it easy to find 
and select water-efficient products that can save water, energy, and 
money. WaterSense[supreg]-labeled products are backed by independent, 
third-party certification and meet EPA's specifications for water 
efficiency and performance.
    (b) Resource. For additional information on WaterSense[supreg] 
products, see https://www.epa.gov/watersense/watersense-products.


23.108-2  Chemically-intensive products.

    (a) Program. Safer Choice is EPA's label for products that contain 
safer chemicals. Every chemical, regardless of percentage, in a Safer 
Choice-certified product is evaluated through EPA's rigorous scientific 
process and only the safest ingredients are allowed.
    (b) Resource. For information on Safer Choice-certified products, 
see https://www.epa.gov/saferchoice.


23.108-3  Products and services that are subject to EPA Recommendations 
of Specifications, Standards, and Ecolabels.

    (a) Program. The EPA Environmentally Preferable Purchasing (EPP) 
Program helps Federal agencies identify and procure environmentally 
preferable products and services to meet zero emissions and other 
sustainable procurement goals by providing Recommendations of 
Specifications, Standards, and Ecolabels. The EPP recommendations give 
preference to multi-attribute or life-cycle based standards and 
ecolabels that address key environmental and human health impact areas 
and where product conformance is determined by a

[[Page 51689]]

competent third-party certification body.
    (b) Resource. For additional information on EPA Recommendations of 
Specifications, Standards, and Ecolabels, see https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing.


23.109  Solicitation provisions and contract clauses.

    (a) General. Insert the clause at 52.223-XX, Sustainable Products 
and Services, in solicitations and contracts--
    (1) Unless--
    (i) The requiring activity has provided a written justification 
that it is not practicable to procure sustainable products and services 
(see 23.104(a));
    (ii) An exception under 23.105 applies; or
    (iii) An exemption under 23.106 applies; and
    (2) The scope of the written justification, exception, or exemption 
covers the entirety of the contract action requirements.
    (b) EPA-designated items. Except for the acquisition of COTS 
items--
    (1) Insert the provision at 52.223-4, Recovered Material 
Certification, in solicitations that require the delivery or specify 
the use of EPA-designated items; and
    (2) Insert the clause at 52.223-9, Estimate of Percentage of 
Recovered Material Content for EPA-designated Items, in solicitations 
and contracts exceeding $150,000 that are for, or specify the use of, 
EPA-designated items containing recovered materials. If technical 
personnel advise that estimates can be verified, use the clause with 
its Alternate I.
    (c) Biobased products in USDA-designated product categories. (1) 
Insert the provision at 52.223-1, Biobased Product Certification, in 
solicitations, other than for acquisitions described at 23.105(d), 
that--
    (i) Require the delivery or specify the use of biobased products in 
USDA-designated product categories; or
    (ii) Include the clause at 52.223-2.
    (2) Insert the clause at 52.223-2, Reporting of Biobased Products 
Under Service and Construction Contracts, in service and construction 
solicitations and contracts, unless the contract will not involve the 
use of biobased products in USDA-designated product categories at 
https://www.biopreferred.gov or 7 CFR part 3201.
    (d) Products containing ozone-depleting substances and 
hydrofluorocarbons. Except for contracts for supplies that will be 
delivered outside the United States and its outlying areas, or 
contracts for services that will be performed outside the United States 
and its outlying areas, insert the following clauses:
    (1) 52.223-11, Ozone-Depleting Substances and High Global Warming 
Potential Hydrofluorocarbons, in solicitations and contracts for--
    (i) Refrigeration equipment (in product or service code (PSC) 
4110);
    (ii) Air conditioning equipment (PSC 4120);
    (iii) Clean agent fire suppression systems/equipment (e.g., 
installed room flooding systems, portable fire extinguishers, aircraft/
tactical vehicle fire/explosion suppression systems) (in PSC 4210);
    (iv) Bulk refrigerants and fire suppressants (in PSC 6830);
    (v) Solvents, dusters, freezing compounds, mold release agents, and 
any other miscellaneous chemical specialty that may contain ozone-
depleting substances or high global warming potential 
hydrofluorocarbons (in PSC 6850);
    (vi) Corrosion prevention compounds, foam sealants, aerosol mold 
release agents, and any other preservative or sealing compound that may 
contain ozone-depleting substances or high global warming potential 
hydrofluorocarbons (in PSC 8030);
    (vii) Fluorocarbon lubricants (primarily aerosols) (in PSC 9150); 
and
    (viii) Any other manufactured end products that may contain or be 
manufactured with ozone-depleting substances.
    (2) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners, in solicitations and 
contracts that include the maintenance, service, repair, or disposal 
of--
    (i) Refrigeration equipment, such as refrigerators, chillers, or 
freezers; or
    (ii) Air conditioners, including air conditioning systems in motor 
vehicles.
    (3) 52.223-20, Aerosols, in solicitations and contracts--
    (i) For products that may contain high global warming potential 
hydrofluorocarbons as a propellant, or as a solvent; or
    (ii) That involve maintenance or repair of electronic or mechanical 
devices.
    (4) 52.223-21, Foams, in solicitations and contracts for--
    (i) Products that may contain high global warming potential 
hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons 
as a foam blowing agent, such as building foam insulation or appliance 
foam insulation; or
    (ii) Construction of buildings or facilities.
0
34. Revise subpart 23.2 to read as follows:
Subpart 23.2--Energy Savings Performance Contracts
Sec.
23.200 Scope.
23.201 Authorities.
23.202 Policy.

Subpart 23.2--Energy Savings Performance Contracts


23.200  Scope.

    (a) This subpart prescribes policies and procedures for using an 
energy savings performance contract to obtain energy-efficient 
technologies at Government facilities without Government capital 
expense.
    (b) This subpart applies to acquisitions in the United States and 
its outlying areas. Agencies conducting acquisitions outside of these 
areas must use their best efforts to comply with this subpart.


23.201  Authorities.

    This subpart implements the National Energy Conservation Policy Act 
(42 U.S.C. 8287).


23.202  Policy.

    (a) Agencies should make maximum use of the authority provided in 
the National Energy Conservation Policy Act (42 U.S.C. 8287) to use an 
energy savings performance contract (ESPC), when life-cycle cost-
effective to reduce energy use and cost in the agency's facilities and 
operations.
    (b)(1) Under an ESPC, an agency can contract with an energy service 
company for a period not to exceed 25 years to improve energy 
efficiency in one or more agency facilities at no direct capital cost 
to the United States Treasury. The energy service company finances the 
capital costs of implementing energy conservation measures and 
receives, in return, a contractually determined share of the cost 
savings that result.
    (2) Except as provided in 10 CFR 436.34, ESPC's are subject to 
subpart 17.1.
    (c) To solicit and award an ESPC, the contracting officer--
    (1) Must use the procedures, selection method, and terms and 
conditions provided in 10 CFR part 436, subpart B; and
    (2) May use the ``Qualified List'' of energy service companies 
established by the Department of Energy and other agencies.
    (d) For procedures related to unsolicited proposals for energy 
savings performance contracts, see 15.603(e).

[[Page 51690]]

    (e) For more information see https://energy.gov/eere/femp/energy-savings-performance-contracts-federal-agencies.
0
35. Revise the heading for subpart 23.3 to read as follows:

Subpart 23.3--Hazardous Material Identification, Material Safety 
Data, and Notice of Radioactive Materials

0
36. Revise section 23.300 to read as follows:


23.300  Scope of subpart.

    This subpart prescribes policies and procedures for the following:
    (a) Acquiring deliverable items, other than ammunition and 
explosives, that require the furnishing of data involving hazardous 
materials. Agencies may prescribe special procedures for ammunition and 
explosives.
    (b) Providing notification of radioactive materials prior to 
delivery.
0
37. Revise the heading of section 23.302 to read as follows:


23.302  Hazardous material identification and notice of material safety 
data.

* * * * *


23.303  [Redesignated as 23.304]

0
38. Redesignate section 23.303 as section 23.304.
0
39. Add a new section 23.303 to read as follows:


23.303  Notice of radioactive materials.

    (a) The clause at 52.223-7, Notice of Radioactive Materials, 
requires the contractor to notify the contracting officer prior to 
delivery of radioactive material.
    (b) Upon receipt of the notice, the contracting officer shall 
notify receiving activities so that appropriate safeguards can be 
taken.
    (c) The clause permits the contracting officer to waive the 
notification if the contractor states that the notification on prior 
deliveries is still current. The contracting officer may waive the 
notice only after consultation with cognizant technical 
representatives.
    (d) The contracting officer is required to specify in the clause at 
52.223-7, the number of days in advance of delivery that the contractor 
will provide notification. The determination of the number of days 
should be done in coordination with the installation/facility radiation 
protection officer (RPO). The RPO is responsible for ensuring the 
proper license, authorization, or permit is obtained prior to receipt 
of the radioactive material.
0
40. Revise newly redesignated section 23.304 to read as follows:


23.304  Contract clauses.

    (a)(1) The contracting officer shall insert the clause at 52.223-3, 
Hazardous Material Identification and Material Safety Data, in 
solicitations and contracts if the contract will require the delivery 
of hazardous materials as defined in 23.301.
    (2) If the contract is awarded by an agency other than the 
Department of Defense, the contracting officer shall use the clause at 
52.223-3 with its Alternate I.
    (b) The contracting officer shall insert the clause at 52.223-7, 
Notice of Radioactive Materials, in solicitations and contracts for 
supplies that are or that contain--
    (1) Radioactive material requiring specific licensing under 
regulations issued pursuant to the Atomic Energy Act of 1954; or
    (2) Radioactive material not requiring specific licensing in which 
the specific activity is greater than 0.002 microcuries per gram or the 
activity per item equals or exceeds 0.01 microcuries. Such supplies 
include, but are not limited to, aircraft, ammunition, missiles, 
vehicles, electronic tubes, instrument panel gauges, compasses, and 
identification markers.
0
41. Revise subpart 23.4 to read as follows:
Subpart 23.4--Pollution Prevention, Environmental Management Systems, 
and Waste Reduction
Sec.
23.400 Scope of subpart.
23.401 Definitions.
23.402 Authorities.
23.403 Emergency planning and toxic release reporting.
23.404 Environmental management systems.
23.405 Waste reduction program.
23.406 Contract clauses.

Subpart 23.4--Pollution Prevention, Environmental Management 
Systems, and Waste Reduction


23.400  Scope of subpart.

    This subpart prescribes policies and procedures for--
    (a) Obtaining information needed for Government compliance with 
right-to-know laws and pollution prevention requirements;
    (b) Contractor compliance with environmental management systems; 
and
    (c) Ensuring waste reduction at Federal facilities.


23.401  Definitions.

    As used in this subpart--
    Federal agency means an executive agency (see 2.101).
    Federal facility means a facility owned or operated by a Federal 
agency in the customs territory of the United States.


23.402  Authorities.

    (a) Emergency Planning and Community Right-to-Know Act of 1986, 42 
U.S.C. 11001-11050 (EPCRA).
    (b) Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109 (PPA).
    (c) Executive Order 14057, Catalyzing Clean Energy Industries and 
Jobs Through Federal Sustainability, dated December 8, 2021.


23.403  Emergency planning and toxic release reporting.

    (a) Federal facilities are required to comply with the emergency 
planning and toxic release reporting requirements in EPCRA and PPA.
    (b) Pursuant to EPCRA, PPA, and any agency implementing procedures, 
every contract that provides for performance on a Federal facility 
shall require the contractor to provide information necessary for the 
Federal agency to comply with paragraph (a) of this section.


23.404  Environmental management systems.

    Agencies may implement an environmental management system (EMS) 
when it aligns with and supports its agency's mission needs and 
facilitates implementation and progress toward E.O. 14057 goals. If an 
agency uses an EMS for contractor operation of Government-owned or -
leased facilities or vehicles, and contractor activities affect the 
agency's environmental management aspects--
    (a) EMS requirements shall be included in contracts to ensure 
proper implementation and execution of EMS roles and responsibilities; 
and
    (b) The contracting officer shall--
    (1) Specify the EMS directives with which the contractor must 
comply; and
    (2) Ensure contractor compliance to the same extent as the agency 
would be required to comply, if the agency operated the facilities or 
vehicles.


23.405  Waste reduction program.

    To support pollution prevention and agency efforts to minimize 
waste in accordance with E.O. 14057, contracts for contractor operation 
of Government-owned or -leased facilities or for support services at 
Government-owned or -operated facilities shall require the contractor 
to promote cost-effective waste reduction in all operations and 
facilities covered by the contract.

[[Page 51691]]

23.406  Contract clauses.

    (a) Insert the clause at 52.223-5, Pollution Prevention and Right-
to-Know Information, in solicitations and contracts that provide for 
performance, in whole or in part, on a Federal facility.
    (b) Insert the clause at 52.223-19, Compliance With Environmental 
Management Systems, in solicitations and contracts for contractor 
operation of Government-owned or -leased facilities or vehicles located 
in the United States, if an agency uses an EMS and contractor 
activities affect aspects of the agency's environmental management. For 
facilities located outside the United States, the agency head may 
determine that use of the clause is in the best interest of the 
Government.
    (c) Insert the clause at 52.223-10, Waste Reduction Program, in 
solicitations and contracts for contractor operation of Government-
owned or -leased facilities and all solicitations and contracts for 
support services at Government-owned or -operated facilities.

Subpart 23.5 [Transferred to Part 26]

0
42. Transfer subpart 23.5, consisting of sections 23.500 through 
23.506, to part 26.

Subpart 23.6 [Removed and Reserved]

0
43. Remove and reserve subpart 23.6, consisting of sections 23.601 and 
23.602.

Subpart 23.7 [Removed and Reserved]

0
44. Remove and reserve subpart 23.7, consisting of sections 23.700 
through 23.705.
0
45. Revise subpart 23.8 to read as follows:
Subpart 23.8--Greenhouse Gas Emissions
Sec.
23.800 Scope of subpart.
23.801 Policy.
23.802 Solicitation provision.

Subpart 23.8--Greenhouse Gas Emissions


23.800  Scope of subpart.

    This subpart addresses public disclosure of greenhouse gas 
emissions and reduction goals.


23.801  Policy.

    In order to better understand both direct and indirect greenhouse 
gas emissions that result from Federal activities, offerors that are 
registered in the System for Award Management (SAM) and received $7.5 
million or more in Federal contract awards in the prior Federal fiscal 
year are required to--
    (a) Represent whether they publicly disclose greenhouse gas 
emissions;
    (b) Represent whether they publicly disclose a quantitative 
greenhouse gas emissions reduction goal; and
    (c) Provide the website for any such disclosures.


23.802  Solicitation provision.

    The provision at 52.223-22, Public Disclosure of Greenhouse Gas 
Emissions and Reduction Goals--Representation, is required only when 
52.204-7, System for Award Management, is included in the solicitation 
(see 52.204-8, Annual Representations and Certifications).

Subpart 23.9 [Removed and Reserved]

0
46. Remove and reserve subpart 23.9, consisting of sections 23.900 
through 23.903.

Subpart 23.10 [Removed and Reserved]

0
47. Remove and reserve subpart 23.10, consisting of sections 23.1000 
through 23.1005.

Subpart 23.11 [Transferred to Part 26]

0
48. Transfer subpart 23.11, consisting of sections 23.1101 through 
23.1105, to part 26.

PART 26--OTHER SOCIOECONOMIC PROGRAMS

Subpart 23.5 [Redesignated as Subpart 26.5]

0
49. Redesignate newly transferred subpart 23.5, consisting of sections 
23.500 through 23.506, as subpart 26.5 as indicated in the table below:

------------------------------------------------------------------------
            Old section                          New section
------------------------------------------------------------------------
                   23.500                               26.500
                   23.501                               26.501
                   23.502                               26.502
                   23.503                               26.503
                   23.504                               26.504
                   23.505                               26.506
                   23.506                               26.505
------------------------------------------------------------------------

26.504  [Amended]

0
50. Amend newly redesignated section 26.504 by--
0
a. Removing from the last sentence of paragraph (a)(5) ``postion'' and 
adding ``position'' in its place; and
0
b. Removing from the end of paragraph (a)(6)(i) ``; or'' and adding a 
period in its place.


26.505  [Amended]

0
51. Amend newly redesignated section 26.505 by removing from paragraph 
(d)(1) ``52.223-6'' and adding ``52.226-XX'' in its place.


26.506  [Amended]

0
52. Amend newly redesignated section 26.506 by removing ``23.501'' and 
``52.223-6'' and adding ``26.501'' and ``52.226-XX'' in their places, 
respectively.

Subpart 23.11 [Redesignated as Subpart 26.6]

0
53. Redesignate newly transferred subpart 23.11, consisting of sections 
23.1101 through 23.1105, as subpart 26.6 as indicated in the table 
below:

------------------------------------------------------------------------
            Old section                          New section
------------------------------------------------------------------------
                  23.1101                               26.601
                  23.1102                               26.602
                  23.1103                               26.603
                  23.1104                               26.604
                  23.1105                               26.605
------------------------------------------------------------------------

26.605  [Amended]

0
54. Amend newly redesignated section 26.605 by removing ``52.223-18'' 
and adding ``52.226-YY'' in its place.

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


36.001  [Amended]

0
55. Amend section 36.001 by--
0
a. Removing from the definition of ``Construction and demolition 
materials and debris'' the phrase ``means materials and debris 
generated'' and adding the phrase ``means waste materials and debris 
generated'' in its place;
0
b. Revising the definition of ``Diverting''; and
0
c. Adding the definition ``Modernization project'' in alphabetical 
order.
    The revision and addition read as follows:


36.001  Definitions.

* * * * *
    Diverting means redirecting materials from disposal in landfills or 
incinerators to recycling or recovery, excluding diversion to waste-to-
energy facilities.
    Modernization project means a project that includes the 
comprehensive replacement or restoration of virtually all major 
systems, interior finishes (such as ceilings, partitions, doors, and 
floor finishes), and building features.
0
56. Amend section 36.104 by revising paragraph (b) to read as follows:


36.104  Policy.

* * * * *
    (b) Agencies shall implement high-performance sustainable building 
design, construction, renovation, repair, commissioning, operation and

[[Page 51692]]

maintenance, management, and deconstruction practices so as to--
    (1) Ensure that--
    (i) All new construction and modernization projects greater than 
25,000 gross square feet are designed, constructed, and maintained to 
meet and, wherever practicable, exceed Federal sustainable design and 
operations principles for new construction and modernization projects 
in accordance with the Council on Environmental Quality's Guiding 
Principles for Sustainable Federal Buildings and Associated 
Instructions (Guiding Principles) (available at https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf); and
    (ii) All renovation projects of existing Federal buildings must 
use, to the greatest extent technically feasible and practicable, 
Federal sustainable design and operations principles for existing 
buildings in accordance with the Guiding Principles;
    (2) Identify alternatives to renovation that reduce existing 
assets' deferred maintenance costs;
    (3) Ensure that rehabilitation of federally-owned historic 
buildings utilizes best practices and technologies in retrofitting to 
promote long-term viability of the buildings; and
    (4) Ensure pollution prevention and eliminate waste by diverting at 
least 50 percent of non-hazardous construction and demolition materials 
and debris.


36.601-3  [Amended]

0
57. Amend section 36.601-3 by removing from paragraph (a)(2) ``subpart 
23.2'' and adding ``23.107-3'' in its place.

PART 37--SERVICE CONTRACTING


37.102  [Amended]

0
58. Amend section 37.102 by removing from paragraph (i) ``part 23'' and 
adding ``subpart 23.1 (see 23.103(c))'' in its place.

PART 39--ACQUISITION OF INFORMATION TECHNOLOGY

0
59. Amend section 39.101 by revising paragraphs (a)(1)(ii) and (iii) to 
read as follows:


39.101  Policy.

    (a)(1) * * *
    (ii) The requirements for sustainable products and services (as 
defined in 2.101) in accordance with subpart 23.1;
    (iii) Policies to enable power management and other energy-
efficient or environmentally preferable features on all agency 
electronic products; and
* * * * *

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
60. Amend section 42.302 by--
0
a. Removing from paragraph (a)(66) ``23.5'' and adding ``26.5'' in its 
place; and
0
b. Revising paragraphs (a)(68)(ii) and (iii).
    The revision reads as follows:


42.302  Contract administration functions.

    (a) * * *
    (68) * * *
    (ii) Monitoring contractor compliance with specifications or other 
contractual requirements requiring the delivery, use, or furnishing of 
sustainable products and services (as defined in 2.101) in accordance 
with subpart 23.1. This must occur as part of the quality assurance 
procedures set forth in part 46; and
    (iii) As required in the contract, ensuring that the contractor 
complies with the reporting requirements relating to recovered material 
content (see 52.223-9) and biobased products (see 52.223-2) utilized in 
contract performance.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.204-4  [Removed and Reserved]

0
61. Remove and reserve section 52.204-4.
0
62. Amend section 52.204-8 by--
0
a. Revising the date of the provision and paragraph (c)(1)(xvii);
0
b. Removing from the end of paragraph (c)(1)(xix) the parenthesis;
0
c. Removing paragraph (c)(2)(vi); and
0
d. Redesignating paragraphs (c)(2)(vii) and (viii) as paragraphs 
(c)(2)(vi) and (vii).
    The revisions read as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (DATE)

* * * * *
    (c)(1) * * *
    (xvii) 52.223-1, Biobased Product Certification. This provision 
applies to solicitations that require the delivery or specify the 
use of biobased products in USDA-designated product categories; or 
include the clause at 52.223-2, Reporting of Biobased Products Under 
Service and Construction Contracts.
* * * * *


52.211-5  [Amended]

0
63. Amend section 52.211-5 by removing from the introductory text 
``11.304'' and adding ``11.302'' in its place.
0
64. Amend section 52.212-5 by--
0
a. Revising the date of the clause and paragraphs (b)(39) and (40);
0
b. Removing paragraphs (b)(41) through (45);
0
c. Redesignating paragraphs (b)(46) and (47) as paragraphs (b)(41) and 
(42);
0
d. Revising newly redesignated paragraphs (b)(41) and (42) and adding 
paragraph (b)(43);
0
e. Redesignating paragraphs (b)(48) through (55) as paragraphs (b)(44) 
through (51);
0
f. Adding a new paragraph (b)(52); and
0
g. Redesignating paragraphs (b)(56) through (64) as paragraphs (b)(53) 
through (61).
    The revisions and additions read as follows:


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

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (DATE)

* * * * *
    (b) * * *
    _ (39) 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons (DATE) (42 U.S.C. 7671, et 
seq.).
    _ (40) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners (DATE) (42 U.S.C. 7671, 
et seq.).
    _ (41) 52.223-20, Aerosols (JUN 2016) (42 U.S.C. 7671, et seq.).
    _ (42) 52.223-21, Foams (JUN 2016) (42 U.S.C. 7671, et seq.).
    _ (43) 52.223-XX, Sustainable Products and Services (DATE) (E.O. 
14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C. 
7671l).
* * * * *
    _ (52) 52.226-YY, Encouraging Contractor Policies to Ban Text 
Messaging While Driving (DATE) (E.O. 13513).
* * * * *
0
65. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (a)(1)(viii) through (xi) as paragraphs 
(a)(1)(ix) through (xii) and adding a new paragraph (a)(1)(viii);
0
c. Revising paragraphs (b)(1)(xi) through (xiii);
0
d. Removing paragraph (b)(1)(xiv);
0
e. Redesignating paragraphs (b)(1)(xv) through (xxi) as paragraphs 
(b)(1)(xiv) through (xx); and
0
f. Revising newly redesignated paragraphs (b)(1)(xiv) and (xv).
    The revisions and addition read as follows:

[[Page 51693]]

52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) (DATE)

    (a) * * *
    (1) * * *
    (viii) 52.223-XX, Sustainable Products and Services (DATE) (E.O. 
14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C. 
7671l).
* * * * *
    (b) * * *
    (1) * * *
    (xi) 52.223-5, Pollution Prevention and Right-to-Know 
Information (MAY 2011) (42 U.S.C. 11001-11050 and 13101-13109) 
(Applies to services performed on Federal facilities).
    (xii) 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons (DATE) (42 U.S.C. 7671, et 
seq.) (Applies to contracts for products as prescribed at FAR 
23.109(d)(1)).
    (xiii) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners (DATE) (42 U.S.C. 7671, 
et seq.) (Applies to maintenance, service, repair, or disposal of 
refrigeration equipment and air conditioners).
    (xiv) 52.223-20, Aerosols (DATE) (42 U.S.C. 7671, et seq.) 
(Applies to contracts for products that may contain high global 
warming potential hydrofluorocarbons as a propellant or as a 
solvent; or contracts for maintenance or repair of electronic or 
mechanical devices).
    (xv) 52.223-21, Foams (DATE) (42 U.S.C. 7671, et seq.) (Applies 
to contracts for products that may contain high global warming 
potential hydrofluorocarbons or refrigerant blends containing 
hydrofluorocarbons as a foam blowing agent; or contracts for 
construction of buildings or facilities.
* * * * *
0
66. Revise section 52.223-1 to read as follows:


52.223-1  Biobased Product Certification.

    As prescribed in 23.109(c)(1), insert the following provision:

Biobased Product Certification (DATE)

    As required by the Farm Security and Rural Investment Act of 
2002 (7 U.S.C. 8101(4)) and the Energy Policy Act of 2005 (7 U.S.C. 
8102(a)(2)(F)), the offeror certifies, by signing this offer, that 
biobased products (within categories of products listed by the 
United States Department of Agriculture in 7 CFR part 3201, subpart 
B) to be used or delivered in the performance of the contract, other 
than biobased products that are not purchased by the offeror as a 
direct result of this contract, will comply with the applicable 
specifications or other contractual requirements.


(End of provision)
0
67. Revise section 52.223-2 to read as follows:


52.223-2  Reporting of Biobased Products Under Service and Construction 
Contracts.

    As prescribed in 23.109(c)(2), insert the following clause:

Reporting of Biobased Products Under Service and Construction Contracts 
(DATE)

    (a) Definitions. As used in this clause--
    Biobased product means a product determined by the U.S. 
Department of Agriculture (USDA) to be a commercial product or 
industrial product (other than food or feed) that is composed, in 
whole or in significant part, of biological products, including 
renewable domestic agricultural materials and forestry materials, or 
that is an intermediate ingredient or feedstock. The term includes, 
with respect to forestry materials, forest products that meet 
biobased content requirements, notwithstanding the market share the 
product holds, the age of the product, or whether the market for the 
product is new or emerging. (7 U.S.C. 8101) (7 CFR 3201.2).
    USDA-designated product category means a generic grouping of 
products that are or can be made with biobased materials--
    (1) That are listed by USDA in a procurement guideline (7 CFR 
part 3201, subpart B); and
    (2) For which USDA has provided purchasing recommendations 
(available at https://www.biopreferred.gov).
    (b) The Contractor shall report to https://www.sam.gov, with a 
copy to the Contracting Officer, on the product types and dollar 
value of any biobased products in USDA-designated product categories 
purchased by the Contractor during the previous Government fiscal 
year, between October 1 and September 30; and
    (c) Submit this report no later than--
    (1) October 31 of each year during contract performance; and
    (2) At the end of contract performance.

0
68. Amend section 52.223-3 by revising the introductory text and the 
introductory text of Alternate I to read as follows:


52.223-3  Hazardous Material Identification and Material Safety Data.

    As prescribed in 23.304(a)(1), insert the following clause:
* * * * *
    Alternate I (JUL 1995) As prescribed in 23.304(a)(2), add the 
following paragraph (i) to the basic clause:
* * * * *


52.223-4  [Amended]

0
69. Amend section 52.223-4 by removing from the introductory text 
``23.406(c)'' and adding ``23.109(b)(1)'' in its place.
0
70. Amend section 52.223-5 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Removing paragraph (c)(6), Alternate I, and Alternate II.
    The revision reads as follows:


52.223-5  Pollution Prevention and Right-to-Know Information.

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

Pollution Prevention and Right-to-Know Information (DATE)

* * * * *


52.223-6  [Redesignated as 52.226-XX]

0
71. Redesignate section 52.223-6 as section 52.226-XX.
0
72. Amend section 52.223-7 by:
0
a. Revising the section heading; and
0
b. Removing from the introductory text ``23.602'' and adding 
``23.304(b)'' in its place.
    The revision reads as follows:


52.223-7  Notice of Radioactive Materials.

* * * * *


52.223-9  [Amended]

0
73. Amend section 52.223-9 by removing from the introductory text and 
the introductory text of Alternate I ``23.406(d)'' and adding 
``23.109(b)(2)'' in its place.
0
74. Amend section 52.223-10 by--
0
a. Revising the introductory text and the date of the clause; and
0
b. Removing from paragraph (b) ``3(e) of Executive Order 13423'' and 
adding ``207 of Executive Order 14057'' in its place.
    The revisions read as follows:


52.223-10  Waste Reduction Program.

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

Waste Reduction Program (DATE)

* * * * *
0
75. Amend section 52.223-11 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Removing paragraph (c); and
0
c. Redesignating paragraph (d) as paragraph (c).
    The revisions read as follows:


52.223-11  Ozone-Depleting Substances and High Global Warming Potential 
Hydrofluorocarbons.

    As prescribed in in 23.109(d)(1), insert the following clause:

Ozone-Depleting Substances and High Global Warming Potential 
Hydrofluorocarbons (DATE)

* * * * *
0
76. Amend section 52.223-12 by--
0
a. Revising the introductory text, the date of the clause, and 
paragraph (c)(4);
0
b. Removing paragraph (d); and
0
c. Redesignating paragraph (e) as paragraph (d).
    The revisions read as follows:

[[Page 51694]]

52.223-12  Maintenance, Service, Repair, or Disposal of Refrigeration 
Equipment and Air Conditioners.

    As prescribed in 23.109(d)(2), insert the following clause:

Maintenance, Service, Repair, or Disposal of Refrigeration Equipment 
and Air Conditioners (DATE)

* * * * *
    (c) * * *
    (4) Using reclaimed hydrofluorocarbons to service and repair 
refrigeration and air conditioning equipment, where feasible.
* * * * *


52.223-13 through 52.223-17  [Removed and Reserved]

0
76. Remove and reserve sections 52.223-13 through 52.223-17.


52.223-18  [Redesignated as 52.226-YY]

0
77. Redesignate section 52.223-18 as section 52.226-YY.


52.223-19  [Amended]

0
78. Amend section 52.223-19 in the introductory text by removing 
``23.903'' and adding ``23.406(b)'' in its place.


52.223-20  [Amended]

0
79. Amend section 52.223-20 in the introductory text by removing 
``23.804(a)(3)'' and adding ``23.109(d)(3)'' in its place.


52.223-21  [Amended]

0
80. Amend section 52.223-21 in the introductory text by removing 
``23.804(a)(4)'' and adding ``23.109(d)(4)'' in its place.


52.223-22  [Amended]

0
81. Amend section 52.223-22 in the introductory text by removing 
``23.804(b)'' and adding ``23.802'' in its place.
0
82. Add section 52.223-XX to read as follows:


52.223-XX  Sustainable Products and Services.

    As prescribed in 23.109(a), insert the following clause:

Sustainable Products and Services (DATE)

    (a) Definitions. As used in this clause--
    Biobased product means a product determined by the U.S. 
Department of Agriculture (USDA) to be a commercial product or 
industrial product (other than food or feed) that is composed, in 
whole or in significant part, of biological products, including 
renewable domestic agricultural materials and forestry materials, or 
that is an intermediate ingredient or feedstock. The term includes, 
with respect to forestry materials, forest products that meet 
biobased content requirements, notwithstanding the market share the 
product holds, the age of the product, or whether the market for the 
product is new or emerging. (7 U.S.C. 8101) (7 CFR 3201.2).
    Recovered material means waste materials and by-products 
recovered or diverted from solid waste, but the term does not 
include those materials and by-products generated from, and commonly 
reused within, an original manufacturing process. (42 U.S.C. 6903).
    Sustainable products and services means products and services 
that are subject to and meet the following applicable statutory 
mandates and directives for purchasing:
    (1) Statutory purchasing programs.
    (i) Products containing recovered material designated by the 
U.S. Environmental Protection Agency (EPA) under the Comprehensive 
Procurement Guidelines (42 U.S.C. 6962) (40 CFR part 247) (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
    (ii) Energy- and water-efficient products that are ENERGY 
STAR[supreg] certified or Federal Energy Management Program (FEMP)-
designated products. (42 U.S.C. 8259b) (10 CFR part 436, subpart C) 
(https://www.energy.gov/eere/femp/search-energy-efficient-products) 
and (https://www.energystar.gov/products?s=mega).
    (iii) Biobased products meeting the content requirement of the 
USDA under the BioPreferred[supreg] program. (7 U.S.C. 8102) (7 CFR 
part 3201) (https://www.biopreferred.gov).
    (iv) Acceptable chemicals, products, and manufacturing processes 
listed under EPA's Significant New Alternatives Policy (SNAP) 
program, which ensures a safe and smooth transition away from 
substances that contribute to the depletion of stratospheric ozone. 
(42 U.S.C. 7671l) (40 CFR part 82, subpart G) (https://www.epa.gov/snap).
    (2) Required EPA purchasing programs.
    (i) WaterSense[supreg] labeled (water efficient) products and 
services (https://www.epa.gov/watersense/watersense-products).
    (ii) Safer Choice-certified products (products that contain 
safer chemical ingredients) (https://www.epa.gov/saferchoice/products).
    (iii) Product and services that meet EPA Recommendations of 
Specifications, Standards, and Ecolabels (https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
    (b) Requirements.
    (1) Except as provided in paragraph (b)(2) of this clause, in 
the performance of this contract, the Contractor shall--
    (i) Deliver and furnish sustainable products and services for 
Government use, including use at Government-owned contractor-
operated facilities;
    (ii) Incorporate sustainable products and services into the 
construction of a public building or public works; and
    (iii) Furnish sustainable products and services for use in 
performing services under this contract, where the cost of the 
products is a direct cost to this contract (versus costs which are 
normally applied to the Contractor's general and administrative 
expenses or indirect costs).
    (2) The contract will identify any products or services that are 
not subject to this clause.
    (3) Sustainable products and services must meet the applicable 
standards, specifications, or other program requirements at time of 
quote or offer submission.
    (c) Prioritization. The Contractor shall prioritize sustainable 
products and services as follows:
    (1) Provide products and services that meet all applicable 
statutory purchasing program requirements. When both an EPA-
designated item and a biobased product in a USDA-designated product 
category could be used for the same purposes, and both meet the 
agency's needs, procure the EPA-designated item.
    (2) Prioritize multi-attribute sustainable products and 
services, which are those that meet all applicable statutory 
purchasing program requirements and one or more required EPA 
purchasing programs.
    (3) If no statutory purchasing program requirements apply, 
procure sustainable products and services that meet required EPA 
purchasing program requirements.
    (4) Procure products and services that meet required EPA 
purchasing programs (see paragraph (2) of the definition of 
``sustainable products and services'' in paragraph (a) of this 
clause) unless doing so would conflict with statute, Executive 
order, or regulation that impose domestic manufacturing and content 
requirements, such as the Buy American statute (41 U.S.C. chapter 
83; see FAR part 25) and the Berry Amendment (10 U.S.C. 4862).
    (d) Resource. The Green Procurement Compilation (GPC) available 
at https://sftool.gov/greenprocurement provides a comprehensive list 
of sustainable products and services and sustainable acquisition 
guidance. The Contractor should review the GPC when determining 
which purchasing programs apply to a specific product or service.


(End of clause)
0
83. Amend newly redesignated section 52.226-XX by--
0
a. Revising the introductory text and the date of the clause; and
0
b. Removing from paragraph (d) ``23.506'' and adding ``26.505'' in its 
place.
    The revisions read as follows:


52.226-XX  Drug-Free Workplace.

    As prescribed in 26.506, insert the following clause:

Drug-Free Workplace (DATE)

* * * * *
0
84. Amend newly redesignated section 52.226-YY by revising the 
introductory text and the date of the clause to read as follows:


52.226-YY  Encouraging Contractor Policies To Ban Text Messaging While 
Driving.

    As prescribed in 26.605, insert the following clause:

Encouraging Contractor Policies To Ban Text Messaging While Driving 
(DATE)

* * * * *
[FR Doc. 2023-16012 Filed 8-1-23; 8:45 am]
BILLING CODE 6820-EP-P