[Federal Register Volume 72, Number 85 (Thursday, May 3, 2007)]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-2168]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 12, 23, 42, and 52
[FAR Case 2005-039; Docket 2007-0001; Sequence 2]
Federal Acquisition Regulation; FAR Case 2005-039, Use of
Products Containing Recovered Materials In Service and Construction
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to clarify language within the FAR
on the use of products containing recovered materials, pursuant to the
Resource Conservation and Recovery Act of 1976, and Executive Order
13101 ``Greening the Government Through Waste Prevention, Recycling,
and Federal Acquisition.''
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before July 2, 2007 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2005-039 by any of
the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for any document by first selecting the proper document types
and selecting ``Federal Acquisition Regulation'' as the agency of
choice. At the ``Keyword'' prompt, type in the FAR case number (for
example, FAR Case 2006-001) and click on the ``Submit'' button. Please
include any personal and/or business information inside the document.
You may also search for any document by clicking on the ``Advanced
search/document search'' tab at the top of the screen, selecting from
the agency field ``Federal Acquisition Regulation'', and typing the FAR
case number in the keyword field. Select the ``Submit'' button.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2005-
039 in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement
Analyst, at (202) 219-1813 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAR case 2005-039.
DOD, GSA, and NASA propose to amend the Federal Acquisition
Regulation (FAR) to clarify language within the FAR on the use of
products containing recovered materials, pursuant to the Resource
Conservation and Recovery Act of 1976, and Executive Order 13101
``Greening the Government Through Waste Prevention, Recycling, and
Federal Acquisition.'' The Councils are aware that Executive Order
13423, ``Strengthening Federal Environmental, Energy, and
Transportation Management,'' revoked E.O. 13101; however, E.O. 13101 is
not eliminated from Subpart 23.4 under this rule, as other conforming
be required. A future FAR case will make the conforming changes as a
result of the E.O. 13423.
This rule proposes to revise Subpart 23.4, Use of Products
Containing Recovered Materials, and associated provisions and clauses
in FAR Part 52, with conforming changes in FAR Parts 12, 23, and 42,
(1) Provide for consistency when referring to products containing
(2) Clarify that the requirement for products containing recovered
materials applies when agencies require the delivery or specify the use
of EPA-designated items, and when agencies award contracts for services
or construction unless the service or construction contract will not
involve the use of such items;
(3) Prescribe a new clause for use in service and construction
contracts when appropriate; and
(4) Revise the Recovered Material Certification provision to
reflect the changes proposed by this rule.
The Resource Conservation and Recovery Act (RCRA) was enacted by
Congress in 1976 to establish a system for managing non-hazardous and
hazardous solid wastes in an environmentally sound manner.
Specifically, it provides for the management of hazardous wastes from
the point of origin to the point of final disposal. RCRA also promotes
resource recovery and waste minimization. RCRA is designed to protect
human health and the environment; reduce or eliminate the generation of
hazardous wastes; and conserve energy and natural resources. Section
6002 of the RCRA acknowledges the importance of recycling by mandating
that government agencies increase their purchases of products
containing recovered materials.
RCRA also specifies that the Environmental Protection Agency (EPA)
develop and issue procurement guidelines that designate specific items
made with recovered materials. EPA-designated items containing
recovered materials are items listed by EPA in a procurement guideline,
and for which EPA has provided purchasing recommendations in a related
Recovered Materials Advisory Notice (RMAN). Agencies shall purchase and
require maximum use of EPA-designated items, taking into consideration
competition, price, availability, and performance.
Other RCRA sections mandate the revision of specifications
requiring the exclusive use of virgin materials (RCRA Section 6002(d)),
and the development of an affirmative procurement program (RCRA Section
6002(i)) that sets forth each agency's policies and procedures for
implementing the requirements of Section 6002 of RCRA. Under the EPA
program, Federal agencies may choose not to acquire (or require the use
of) products containing recovered materials if they are not available
in a reasonable timeframe, not reasonably priced, or do not meet
performance standards. This is not a significant regulatory action and,
therefore, was not subject to review under Section 6(b) of Executive
Order 12866, Regulatory Planning and Review, dated September 30, 1993.
This rule is not a major rule under 5 U.S.C. 804.
Solicitation of Public Comment. The Councils, along with the Office
of Federal Procurement Policy (OFPP), wish to ensure that the EPA
preference program includes the acquisition of products and services
(including construction). In furtherance of its responsibility under
section 6002, OFPP seeks to better understand the application of
acquisition of services coverage and welcomes feedback. In commenting,
please include citations, as appropriate, to relevant sources of
information that may be used to substantiate the basis for your
B. Regulatory Flexibility Act
This proposed rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the proposed
rule prescribes a new clause when agencies purchase Environmental
Protection Agency (EPA)-designated items, and when purchasing services
(including construction) that could include the use of such items. The
proposed rule applies to all small business entities who contract with
the Federal Government for delivery of EPA-designated items or
performance of services or construction contracts that involve the use
of EPA-designated items. The Councils recognize that the EPA preference
program has not been consistently implemented by Government agencies in
services and construction acquisitions. However, with some exceptions,
many agencies have fully implemented the program. To assess the impact
of the rule, the Councils requested information and assistance from the
Office of the Federal Environmental Executive (OFEE). The Councils
considered the information provided by OFEE in preparation of the
Initial Regulatory Flexibility Analysis (IRFA), the content of which is
summarized as follows:
Executive Order (E.O.) 13101 requires that agencies track and
report annually to OFEE on their environmental accomplishments in
waste prevention, recycling, and acquisition. Reporting is required
on solid waste prevention practices, recycling and waste
minimization goals and practices, implementation of environmentally
preferable purchasing programs, contract compliance information,
management controls, goals for training, auditing, purchasing and
waste diversion, and purchases of EPA-designated recycled-content
products. In addition, Section 6002 of the Resource Conservation and
Recovery Act (RCRA) requires the Office of Federal Procurement
Policy to report to Congress every two (2) years on the actions
taken by the Federal agencies to implement the statute.
Information obtained from OFEE indicates that many agencies have
fully implemented the recovered material content program. The
content of the RCRA reports, combined with (1) an OFEE baseline
study conducted on Federal agency green building activities, (2)
annual White House Closing the Circle Awards nominations in the
green purchasing, green building, and pollution/waste prevention
categories, and (3) discussions with agencies (including tours of
facilities and reviews of training programs), indicates that most
agencies have been incorporating the requirement to use products
with recycled content in services and construction contracts for
The Councils recognize that the rule may affect small entities
performing contracts for those agencies that have not fully
implemented the program in service and construction contracts, the
number of entities affected, and the extent to which they will be
affected, may be significant. The rule may affect the types of
products these businesses use during contract performance.
Assistance is available to all firms at the EPA Comprehensive
Procurement Guidelines website, http://www.epa.gov/cpg. EPA provides
guidance on identifying products containing recovered materials,
including Product Fact Sheets and a Supplier Database. Options to
comply with the requirements of the rule can be as simple as
purchasing products made with recovered materials to be used in
service and construction contracts. The rule does not impose new
requirements that impose a burden on contractors.
The FAR Secretariat has submitted a copy of the IRFA to the Chief
Counsel for Advocacy of the Small Business Administration. Interested
parties may obtain a copy from the FAR Secretariat. We invite comments
from small business concerns and other interested parties on this
issue. The Councils will consider comments from small entities
concerning the affected FAR parts 12, 23, 42, and 52 in accordance with
5 U.S.C. 610. Interested parties must submit such comments separately
and should cite 5 U.S.C. 601, et seq. (FAR case 2005-039), in
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
FAR do not impose additional information collection requirements to the
paperwork burden previously approved under OMB Control Number 9000-0134
on January 4, 2005.
List of Subjects in 48 CFR Parts 12, 23, 42, and 52
Dated: April 24, 2007.
Acting Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 12, 23,
42, and 52 as set forth below:
1. The authority citation for 48 CFR parts 12, 23, 42, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
PART 12--ACQUISITION OF COMMERCIAL ITEMS
2. Amend section 12.301 by revising paragraph (e)(3) to read as
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(e) * * *
(3) The contracting officer may use the provisions and clauses
contained in Part 23 regarding the use of products containing recovered
materials when appropriate for the item being acquired.
* * * * *
PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
3. Amend section 23.000 by removing from paragraph (d) ``that use''
and adding ``containing'' in its place.
4. Revise Subpart 23.4, consisting of sections 23.400 through
23.406, to read as follows:
SUBPART 23.4--USE OF PRODUCTS CONTAINING RECOVERED MATERIALS
23.400 Scope of subpart.
(a) The procedures in this subpart apply to all agency acquisitions
of an Environmental Protection Agency (EPA)-designated item, if--
(1) The price of a designated item exceeds $10,000; or
(2) The aggregate amount paid for designated items, or for
functionally-equivalent designated items, in the preceding fiscal year
was $10,000 or more.
(b) While micro-purchases are included in determining the aggregate
amount paid under paragraph (a)(2) of this section, it is not
recommended that an agency track micro-purchases when--
(1) The agency anticipates the aggregate amount paid will exceed
(2) The agency intends to establish or continue an affirmative
procurement program in the following fiscal year.
As used in this subpart--
EPA-designated item means a product that is or can be made with
(1) That is listed by EPA in a procurement guideline (40 CFR part
(2) For which EPA has provided purchasing recommendations in a
related Recovered Materials Advisory Notice (RMAN) (available at http://www.epa.gov/epaoswer/non-hw/procure/backgrnd.htm).
(a) The Resource Conservation and Recovery Act of 1976 (RCRA), 42
U.S.C. 6962, requires agencies responsible for drafting or reviewing
specifications used in agency acquisitions to--
(1) Eliminate from those specifications any requirement excluding
the use of recovered materials or requiring products to be manufactured
from virgin materials; and
(2) Require, for EPA-designated products, using recovered materials
to the maximum extent practicable without jeopardizing the intended end
use of the item.
(b) RCRA also requires--
(1) EPA to prepare guidelines on the availability, sources, and
potential uses of recovered materials and associated products,
including solid waste management services; and
(2) Agencies to develop and implement affirmative procurement
programs for EPA-designated products within 1 year after EPA's
(c) Executive Order 13101 requires that the agency head--
(1) Work to increase and expand markets for recovered materials
through greater Government preference and demand for such products
consistent with the demands of efficiency and cost-effectiveness; and
(2) Develop and implement affirmative procurement programs in
accordance with direction in RCRA and the Executive order.
Government policy on the use of products containing recovered
materials considers cost, availability of competition, and performance.
Agencies shall assure the use of products containing recovered
materials to the maximum extent practicable without jeopardizing the
intended use of the product while maintaining a satisfactory level of
competition at a reasonable price. Such products shall meet the
reasonable performance standards of the agency and be acquired
competitively, in a cost-effective manner. Except as provided at
23.404(b), virgin material shall not be required by the solicitation
23.404 Agency affirmative procurement programs.
(a) An agency must establish an affirmative procurement program for
EPA-designated items if the agency's purchases of the designated items
exceed the threshold set forth in 23.400.
(1) Agencies have a period of 1 year to revise their procurement
program(s) after the designation of any new item by EPA.
(2) Technical or requirements personnel and procurement personnel
are responsible for the preparation, implementation, and monitoring of
affirmative procurement programs.
(3) Agency affirmative procurement programs must include--
(i) A recovered materials preference program;
(ii) An agency promotion program;
(iii) A program for requiring reasonable estimates, certification,
and verification of recovered material used in the performance of
(iv) Annual review and monitoring of the effectiveness of the
(b) Agency affirmative procurement programs must require that 100
percent of purchases of EPA-designated items contain recovered
material, unless the item cannot be acquired--
(1) Competitively within a reasonable timeframe;
(2) Meeting reasonable performance standards; or
(3) At a reasonable price.
(c) Agency affirmative procurement programs must provide guidance
for purchases of EPA-designated items at or below the micro-purchase
(d) Agencies may use their own specifications or commercial product
descriptions when procuring products containing recovered materials.
The contract should specify that the product--
(1) Contains the highest percent of recovered materials
(2) Meets the minimum content standards in accordance with the
recommendations in EPA's Recovered Materials Advisory Notices.
(a) Designated items and procurement guidelines. Contracting
officers should refer to EPA's list of EPA-designated items (available
via the Internet at http://www.epa.gov/cpg/products.htm) and to their
agencies' affirmative procurement programs when purchasing products
that contain recovered material, or services or construction that could
include the use of products that contain recovered material.
(b) Procurement exemptions. (1) Once an item has been designated by
EPA, agencies shall purchase conforming products unless it is
determined that conforming products cannot be acquired--
(i) Competitively within a reasonable timeframe;
(ii) Meeting reasonable performance standards; or
(iii) At a reasonable price.
(2) When an exemption is used for an EPA-designated item or the
procurement of a product containing recovered material specifies a
content level lower than the EPA recommended recovered materials
content levels, the contracting officer shall place a written
justification in the contract file.
23.406 Solicitation provision and contract clauses.
(a) Insert the provision at 52.223-4, Recovered Material
Certification, in solicitations that--
(1) Require the delivery or specify the use of EPA-designated
(2) Include the clause at 52.223-XX, Affirmative Procurement of
EPA-designated Items In Service and Construction Contracts.
(b) Insert the clause at 52.223-9, Estimate of Percentage of
Recovered Material Content for EPA-designated Items, in solicitations
and contracts exceeding $100,000 that include the provision at 52.223-
4. If technical personnel advise that estimates can be verified, use
the clause with its Alternate I.
(c) Insert the clause at 52.223-XX, Affirmative Procurement of EPA-
designated Items In Service and Construction Contracts, in service or
construction solicitations and contracts unless the contract will not
involve the use of EPA-designated items.
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
5. Amend section 42.302 by revising paragraph (a)(68)(ii) to read
42.302 Contract administration functions.
(a) * * *
(68) * * *
(ii) Monitoring contractor compliance with specifications or other
contractual requirements requiring the delivery or use of
environmentally preferable products, energy-efficient products, and
products containing recovered materials. This must occur as part of the
quality assurance procedures set forth in Part 46; and
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Revise the provision in section 52.223-4 to read as follows:
52.223-4 Recovered Material Certification.
* * * * *
RECOVERED MATERIAL CERTIFICATION (DATE)
As required by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. 6962(c)(3)(A)(i)), the offeror certifies, by signing
this offer, that the percentage of recovered materials content for
EPA-designated items to be delivered or used in the performance of
the contract will be at least the amount required by the applicable
contract specifications or other contractual requirements.
(End of provision)
7. Amend section 52.223-9 by--
a. Revising the section heading;
b. Revising the clause heading;
c. Revising paragraph (b)(1); and
d. In Alternate I by--
1. Revising the date of Alternate I; and
2. Revising the introductory paragraph of the certification in
The revised text reads as follows.
52.223-9 Estimate of Percentage of Recovered Material Content for EPA-
* * * * *
ESTIMATE OF PERCENTAGE OF RECOVERED MATERIAL CONTENT FOR EPA-DESIGNATED
* * * * *
(b) * * *
(1) Estimate the percentage of the total recovered material
content for EPA-designated item(s) delivered and/or used in contract
performance, including, if applicable, the percentage of
postconsumer material content; and
* * * * *
Alternate I (Date). * * *
(b) * * *
I, ------------------------------ (name of certifier), am an
officer or employee responsible for the performance of this contract
and hereby certify that the percentage of recovered material content
for EPA-designated items met the applicable contract specifications
or other contractual requirements.
* * * * *
8. Add section 52.223-XX to read as follows:
52.223-XX Affirmative Procurement of EPA-designated Items In Service
and Construction Contracts.
As prescribed in 23.406(c), insert the following clause:
AFFIRMATIVE PROCUREMENT OF EPA-DESIGNATED ITEMS IN SERVICE AND
CONSTRUCTION CONTRACTS (DATE)
(a) In the performance of this contract, the Contractor shall
make maximum use of products containing recovered materials that are
EPA-designated items unless the product cannot be acquired--
(1) Competitively within a timeframe providing for compliance
with the contract performance schedule;
(2) Meeting contract performance requirements; or
(3) At a reasonable price.
(b) Information about this requirement is available at EPA's
Comprehensive Procurement Guidelines Web site, http://www.epa.gov/cpg/. The list of EPA-designated items is available at http://www.epa.gov/cpg/products.htm.
(End of clause)
[FR Doc. 07-2168 Filed 5-2-07; 8:45 am]
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