Federal Acquisition Regulation; FAR Case 2005-039, Use of Products Containing Recovered Materials in Service and Construction Contracts, 21789-21790 [E8-8471]

Agencies

• General Services Administration
• National Aeronautics and Space Administration
• DEPARTMENT OF DEFENSE

[Federal Register Volume 73, Number 78 (Tuesday, April 22, 2008)]
[Rules and Regulations]
[Pages 21789-21790]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8471]



[[Page 21789]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4, 12, 13, 23, and 52

[FAC 2005-25; FAR Case 2005-039; Item IV; Docket 2007-0001; Sequence 2]
RIN 9000-AK69


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

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

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending 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: Effective Date: May 22, 2008.

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 FAC 2005-25, FAR case 
2005-039.

SUPPLEMENTARY INFORMATION:

A. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 72 FR 24554, May 3, 2007, to clarify language within the 
FAR regarding 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.'' This rule revises 
Subpart 23.4 and associated provisions and clauses in Part 52, with 
conforming changes in FAR Parts 4, 12, and 13, to--
    (1) Provide for consistency when referring to products containing 
recovered materials;
    (2) Clarify that the requirement for products containing recovered 
materials applies (a) when agencies require the delivery or specify the 
use of Environmental Protection Agency (EPA)-designated items, and (b) 
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 of this rule.
    No comments were received for the proposed rule.
    Note: Since the publication of the proposed rule, the FAR has 
already been amended to include a number of the changes proposed under 
this rule (see FAR Case 2004-032, Biobased Products Preference Program, 
(72 FR 63040, November 7, 2007)).
    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.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to 
this final rule. Small business concerns and other interested parties 
were invited to submit comments concerning the affected FAR Parts. No 
comments were received. The Councils prepared a Final Regulatory 
Flexibility Analysis (FRFA), and it is summarized as follows:
    This final rule amends and clarifies language within the FAR on 
the use of products containing recovered materials pursuant to the 
Resource Conservation and Recovery Act (RCRA) of 1976, and Executive 
Order 13101 ``Greening the Government Through Waste Prevention, 
Recycling, and Federal Acquisition. Although the statute applies to 
all contracts, the Office of the Federal Environmental Executive 
advised that language at FAR Subpart 23.4 has not been consistently 
implemented by Government agencies in service and construction 
acquisitions. 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 Environmental Protection 
Agency (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 rule revises text at FAR Subpart 23.4 to clarify that the 
requirement for use of products containing recovered materials 
applies when agencies purchase EPA-designated items, and when 
purchasing services (including construction) that could include the 
use of such items. The objective of this rule is to ensure that 
contractors deliver and make maximum use of products containing 
recovered materials in contracts for services and construction.
    This final rule applies to all small business entities that 
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 final rule allows for 
procurement exemptions.
    The rule does not impose any new reporting, recordkeeping, or 
compliance requirements.
    Interested parties may obtain a copy of the FRFA from the FAR 
Secretariat. The FAR Secretariat has submitted a copy of the FRFA to 
the Chief Counsel for Advocacy of the Small Business Administration.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the FAR do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Number 9000-
0134.

List of Subjects in 48 CFR Parts 4, 12, 13, 23, and 52

    Government procurement.

    Dated: April 4, 2008.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 12, 13, 23, and 52 
as set forth below:
0
1. The authority citation for 48 CFR parts 4, 12, 13, 23, and 52 
continues to read as follows:

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

PART 4--ADMINISTRATIVE MATTERS

0
2. Amend section 4.1202 by removing from paragraph (t) ``Products'' and 
adding ``Items'' in its place.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
3. Amend section 12.301 by revising paragraph (e)(3) to read as 
follows:


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

* * * * *

[[Page 21790]]

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

PART 13--SIMPLIFIED ACQUISITION PROCEDURES


13.006  [Amended]

0
4. Amend section 13.006 by removing from paragraph (g) ``Products'' and 
adding ``Items'' in its place.

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


23.000  [Amended]

0
5. Amend section 23.000 by removing from paragraph (d) ``that use'' and 
adding ``containing'' in its place.
0
6. Amend section 23.401 by revising paragraph (a)(2) to read as 
follows:


23.401  Definitions.

* * * * *
    (a) * * *
    (2) For which EPA has provided purchasing recommendations in a 
related Recovered Materials Advisory Notice (RMAN) (available at http:/
/www.epa.gov/epaoswer/non-hw/procure/backgrnd.htm).
* * * * *


23.405  [Amended]

0
7. Amend section 23.405 by removing from paragraph (a)(1) ``http://
www.epa.gov/cpg/'' and adding ``http://www.epa.gov/cpg/products.htm'' 
in its place.
0
8. Amend section 23.406 by revising paragraphs (c) and (d), and adding 
paragraph (e) to read as follows:


23.406  Solicitation provisions and contract clauses.

* * * * *
    (c) Insert the provision at 52.223-4, Recovered Material 
Certification, in solicitations that--
    (1) Require the delivery or specify the use of EPA-designated 
items; or
    (2) Include the clause at 52.223-17, Affirmative Procurement of 
EPA-designated Items in Service and Construction Contracts.
    (d) 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 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.
    (e) Insert the clause at 52.223-17, 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 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
9. Amend section 52.212-5 by revising the date of the clause and 
paragraph (b)(25) to read as follows:


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

* * * * *
    CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR 
EXECUTIVE ORDERS--COMMERCIAL ITEMS (MAY 2008)
* * * * *
    (b) * * *
    ---- (25)(i) 52.223-9 Estimate of Percentage of Recovered 
Material Content for EPA-Designated Items (MAY 2008) (42 U.S.C. 
6962(c)(3)(A)(ii)).
    ---- (ii) Alternate I (MAY 2008) of 52.223-9 (42 U.S.C. 
6962(i)(2)(C)).
* * * * *
0
10. Amend section 52.223-4 by revising the date of the provision and 
the provision to read as follows:


52.223-4  Recovered Material Certification.

* * * * *
    RECOVERED MATERIAL CERTIFICATION (MAY 2008)
    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)
0
11. Amend section 52.223-9 by--
0
a. Revising the section heading;
0
b. Revising the heading and the date of clause;
0
c. Revising paragraph (b)(1); and
0
d. In Alternate I by--
0
1. Revising the date of Alternate I; and
0
2. Revising the introductory paragraph of the certification in 
paragraph (b).
0
The revised text reads as follows.


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

* * * * *
    ESTIMATE OF PERCENTAGE OF RECOVERED MATERIAL CONTENT FOR EPA-
DESIGNATED ITEMS (MAY 2008)
* * * * *
    (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 post-
consumer material content; and
* * * * *
    Alternate I (MAY 2008). * * *
    (b) * * *
    CERTIFICATION
    I, ------------------------------ (name of certifier), am an 
officer or employee responsible for the performance of this contract 
and hereby certify that the percentage of recovered material content 
for EPA-designated items met the applicable contract specifications 
or other contractual requirements.
* * * * *
0
12. Add section 52.223-17 to read as follows:


52.223-17  Affirmative Procurement of EPA-designated Items in Service 
and Construction Contracts.

    As prescribed in 23.406(e), insert the following clause:
    AFFIRMATIVE PROCUREMENT OF EPA-DESIGNATED ITEMS IN SERVICE AND 
CONSTRUCTION CONTRACTS (MAY 2008)
    (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. E8-8471 Filed 4-21-08; 8:45 am]
BILLING CODE 6820-EP-S