Federal Acquisition Regulation; FAR Case 2006-030, Electronic Products Environmental Assessment Tool (EPEAT), 2740-2741 [E9-549]

Download as PDF 2740 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 11, 23, 39, and 52 [FAC 2005–30; FAR Case 2006–030; Item VI; Docket 2007–0001, Sequence 9] RIN 9000–AK85 Federal Acquisition Regulation; FAR Case 2006–030, Electronic Products Environmental Assessment Tool (EPEAT) AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. sroberts on PROD1PC70 with RULES SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed to adopt as final, without change, the interim rule published in the Federal Register at 72 FR 73215 on December 26, 2007. The interim rule amended the Federal Acquisition Regulation (FAR) to provide regulations for purchasing environmentally preferable products and services when acquiring personal computer products such as desktops, notebooks (also known as laptops), and monitors with use of Electronic Products Environmental Assessment Tool (EPEAT) pursuant to the Energy Policy Act of 2005 and Executive Order 13423, ‘‘Strengthening Federal Environmental, Energy, and Transportation Management.’’ DATES: Effective Date: February 17, 2009. 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 2005–30, FAR case 2006–030. SUPPLEMENTARY INFORMATION: A. Background The EPEAT is a system to help purchasers in the public and private sectors evaluate, compare, and select desktop computers, notebooks and monitors based on their environmental attributes. The EPEAT also provides a clear and consistent set of performance criteria for the design of products, and provides an opportunity for manufacturers to secure market VerDate Nov<24>2008 18:43 Jan 14, 2009 Jkt 217001 recognition for efforts to reduce the environmental impact of their products. This case was opened to amend the FAR to require the use of the EPEAT Product Registry and the IEEE (Institute of Electrical and Electronics Engineers) 1680 Standard for the Environmental Assessment of Personal Computer Products in all solicitations and contracts for personal computer desktops, laptops, and monitors. On January 24, 2007, President Bush issued Executive Order 13423, Strengthening Federal Environmental, Energy, and Transportation Management. Section 2(h) states that the head of each Agency shall ‘‘ensure that the agency (i) when acquiring an electronic product to meet its requirements, meets at least 95 percent of those requirements with an Electronic Product Environmental Assessment Tool (EPEAT)-registered electronic product, unless there is no EPEAT standard for such product…’’. The Councils published an interim rule on December 26, 2007 (72 FR 73215). Two respondents submitted comments. 1. One respondent fully supports the interim rule. As a taxpayer, he considers that EPEAT is a critical step in facilitating sound purchasing policy. Response: None required. 2. The same respondent encourages DoD to expand the use of EPEAT in all COTS purchases of related equipment, even computers that are ruggedized for operational use. Response: DoD implementation of this rule is outside the scope of this case. 3. Another respondent considers the goals of the regulation laudable, but objects to the process by which the Development Team initiated the development of EPEAT standards. The respondent objects that the Development Team was not rightly identified as a Federal Advisory Committee at its formation, and that neither the requirements of the Federal Advisory Committee Act (FACA), nor even its spirit, were met in the development of EPEAT. The respondent considers that their industry was deprived of the proper and necessary notice of the development of the EPEAT and any associated policies regarding implementation. Response: The development of the EPEAT is not an issue in this rulemaking. Although the Councils were not involved in the development of the standards, they have reviewed these issues with the Environmental Protection Agency (EPA) and the Office of Management and Budget (OMB). The EPA has demonstrated to the satisfaction of the Councils that the Development Team was not subject to PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 FACA, and appropriate procedures were followed for development of voluntary consensus standards. The Councils have forwarded the respondent’s concerns to EPA. If the respondent has further questions with regard to the EPEAT, key EPEAT points of contact are provided on the EPEAT Website at http:// www.epeat.net/faq.aspx#21. 4. The same respondent expresses particular concern because this rule takes a non-governmental program that was to be used voluntarily by purchasers and now mandates its use by all Federal Government agencies. The respondent also questions the urgency for issuance of an interim rule rather than a proposed rule. Response: With regard to mandating the use of the EPEAT for Government purchases, the rule implements the Executive Order 13423, Strengthening Federal Environmental, Energy, and Transportation Management. Section 2(h) states that the head of each Agency shall ‘‘ensure that the agency (i) when acquiring an electronic product to meet its requirements, meets at least 95 percent of those requirements with an Electronic Product Environmental Assessment Tool (EPEAT)-registered electronic product, unless there is no EPEAT standard for such product’’. The rule was issued as an interim rule because the Executive Order mandating use of the EPEAT standards was already in effect. Rules that implement a statute or Executive Order are generally issued as interim rules. 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 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 it mandates standards in orders for personal computer products that will be offered for sale to the Government. A Final Regulatory Flexibility Analysis (FRFA) has been prepared and is summarized as follows: This final rule was initiated to implement Executive Order 13423, Strengthening Federal Environmental, Energy, and Transportation Management, Section 2(h) and the IEEE (Institute of Electrical and Electronics Engineers) 1680 Standard for the Environmental Assessment of Personal Computers, for Federal use in meeting green purchasing requirements when acquiring personal computer products. E:\FR\FM\15JAR3.SGM 15JAR3 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations There were no significant issues raised by the public comments in response to the initial regulatory flexibility analysis. As of June 2008, seven of the twenty-seven vendors who have registered products on the EPEAT Product Registry reported that they are small businesses. Data are not available on how many small businesses are reselling personal computer products to the Government, but according to the EPA’s Office of Small Disadvantaged Business Utilization, at the time of publication of the interim rule, there were approximately 613 Service Disabled Veteran Owned Small Businesses (SDVOSBs) selling IT hardware to the Federal Government. These small businesses were not manufacturers of IT hardware, but resold IT hardware manufactured by other companies to the Federal Government. Many of the products these resellers sold could meet the IEEE 1680 Standard, and the manufacturers of these products had the option of getting these products EPEAT registered to verify that they do meet this standard. Because manufacturers are the parties responsible for determining if their products meet the IEEE 1680 Standard or not, there will be little to no impact on small businesses selling IT products to the Federal Government, who are selling EPEATregistered products. In addition, the EPEAT Product Registry has been designed to encourage small business manufacturer participation. There is a sliding scale for the annual EPEAT registration fee vendors pay to have their products EPEAT registered based on the annual revenue of the vendor. The rule does not duplicate, overlap, or conflict with any other Federal rules. The FAR Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the FRFA may be obtained from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected FAR Parts 11, 23, 39, 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 2006–030), in correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq. sroberts on PROD1PC70 with RULES List of Subjects in 48 CFR Parts 11, 23, 39, and 52 Government procurement. Dated: December 24, 2008 Edward Loeb, Acting Director, Office of Acquisition Policy. Interim Rule Adopted as Final Without Change Accordingly, the interim rule amending 48 CFR parts 11, 23, 39, and VerDate Nov<24>2008 18:43 Jan 14, 2009 Jkt 217001 52 which was published in the Federal Register at 72 FR 73215 on December 26, 2007, is adopted as a final rule without change. [FR Doc. E9–549 Filed 1–14–09; 8:45 am] BILLING CODE 6820–EP–S DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 12, 22, and 52 [FAC 2005–30; FAR Case 2005–012; Item VII; Docket 2006–0020; Sequence 25] RIN 9000–AK31 Federal Acquisition Regulation; FAR Case 2005–012, Combating Trafficking in Persons AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed to adopt as final, with changes, the second interim rule published in the Federal Register at 72 FR 46335, August 17, 2007, amending the Federal Acquisition Regulation (FAR) to implement 22 U.S.C. 7104(g). This statute requires that contracts include a provision that authorizes the department or agency to terminate the contract, if the contractor or any subcontractor engages in trafficking in persons. DATES: Effective Date: February 17, 2009. FOR FURTHER INFORMATION CONTACT: Mr. Ernest Woodson, Procurement Analyst, at (202) 501–3775 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501– 4755. Please cite FAC 2005–30, FAR case 2005–012. SUPPLEMENTARY INFORMATION: A. Background The Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003, as amended by TVPRA of 2005, addresses the victimization of countless men, women, and children in the United States and abroad. In order to implement the law, DoD, GSA, and NASA published a second interim rule in the Federal Register at 72 FR 46335, PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 2741 August 17, 2007 with request for comments by October 16, 2007. Five respondents submitted comments on the second interim rule. Those comments, summarized as follows, were considered by the Councils in the formation of this final rule: 1. Applicability to Commercial Items. Four comments were received from three different respondents regarding the applicability of the rule to commercial items. (a) One respondent is concerned that although the FAR Matrix indicates that FAR clause 52.222–50 is not applicable to commercial items, FAR 52.212–5 includes 52.222–50 as a clause that the contracting officer may mark as being applicable to commercial items. Response: The Councils concur with the respondent’s concern and agrees to indicate in the FAR clause matrix that clause 52.222–50 is required. (b) One respondent believes that by making the rule applicable to commercial items, the Councils misinterpreted the separate Federal crimes created under Chapter 77 of Title 18, United States Code, as providing the necessary criminal or civil penalties for the contract violations to which the Federal Acquisition Streamlining Act was meant to apply. The respondent requests the Councils to reconsider the applicability to commercial items. Response: The Councils note that application of the rule to all contracts for supplies and services, including those for commercial items, is consistent with the broad scope of the statutory directive and is in compliance with the Federal Acquisition Streamlining Act’s (FASA) provision concerning commercial contracts. Specifically, the statutory language at 22 U.S.C. 7104(g) contained no exceptions or limitations with regard to its application to Federal contracts. While FASA governs and limits the applicability of laws to commercial items, it also provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory Council determines that it is not in the best interest of the Federal Government to exempt commercial item contracts, then the provision of law will apply to contracts for commercial items. (c) Another respondent asked the Councils to give further consideration to not applying the rule to commercial items (subcontracts), indicating that the application will give rise to unintended consequences and create an effect inconsistent with Federal acquisition goals. Response: The Councils believe that the TVPRA of 2003 and 2005 reflects Congress’s intent to allow for the E:\FR\FM\15JAR3.SGM 15JAR3

Agencies

[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2740-2741]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-549]



[[Page 2740]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 11, 23, 39, and 52

[FAC 2005-30; FAR Case 2006-030; Item VI; Docket 2007-0001, Sequence 9]
RIN 9000-AK85


Federal Acquisition Regulation; FAR Case 2006-030, Electronic 
Products Environmental Assessment Tool (EPEAT)

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed to adopt as 
final, without change, the interim rule published in the Federal 
Register at 72 FR 73215 on December 26, 2007. The interim rule amended 
the Federal Acquisition Regulation (FAR) to provide regulations for 
purchasing environmentally preferable products and services when 
acquiring personal computer products such as desktops, notebooks (also 
known as laptops), and monitors with use of Electronic Products 
Environmental Assessment Tool (EPEAT) pursuant to the Energy Policy Act 
of 2005 and Executive Order 13423, ``Strengthening Federal 
Environmental, Energy, and Transportation Management.''

DATES: Effective Date: February 17, 2009.

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 2005-30, FAR case 
2006-030.

SUPPLEMENTARY INFORMATION:

A. Background

    The EPEAT is a system to help purchasers in the public and private 
sectors evaluate, compare, and select desktop computers, notebooks and 
monitors based on their environmental attributes. The EPEAT also 
provides a clear and consistent set of performance criteria for the 
design of products, and provides an opportunity for manufacturers to 
secure market recognition for efforts to reduce the environmental 
impact of their products.
    This case was opened to amend the FAR to require the use of the 
EPEAT Product Registry and the IEEE (Institute of Electrical and 
Electronics Engineers) 1680 Standard for the Environmental Assessment 
of Personal Computer Products in all solicitations and contracts for 
personal computer desktops, laptops, and monitors. On January 24, 2007, 
President Bush issued Executive Order 13423, Strengthening Federal 
Environmental, Energy, and Transportation Management. Section 2(h) 
states that the head of each Agency shall ``ensure that the agency (i) 
when acquiring an electronic product to meet its requirements, meets at 
least 95 percent of those requirements with an Electronic Product 
Environmental Assessment Tool (EPEAT)-registered electronic product, 
unless there is no EPEAT standard for such product[hellip]''.
    The Councils published an interim rule on December 26, 2007 (72 FR 
73215). Two respondents submitted comments.
    1. One respondent fully supports the interim rule. As a taxpayer, 
he considers that EPEAT is a critical step in facilitating sound 
purchasing policy.
    Response: None required.
    2. The same respondent encourages DoD to expand the use of EPEAT in 
all COTS purchases of related equipment, even computers that are 
ruggedized for operational use.
    Response: DoD implementation of this rule is outside the scope of 
this case.
    3. Another respondent considers the goals of the regulation 
laudable, but objects to the process by which the Development Team 
initiated the development of EPEAT standards. The respondent objects 
that the Development Team was not rightly identified as a Federal 
Advisory Committee at its formation, and that neither the requirements 
of the Federal Advisory Committee Act (FACA), nor even its spirit, were 
met in the development of EPEAT. The respondent considers that their 
industry was deprived of the proper and necessary notice of the 
development of the EPEAT and any associated policies regarding 
implementation.
    Response: The development of the EPEAT is not an issue in this 
rulemaking. Although the Councils were not involved in the development 
of the standards, they have reviewed these issues with the 
Environmental Protection Agency (EPA) and the Office of Management and 
Budget (OMB). The EPA has demonstrated to the satisfaction of the 
Councils that the Development Team was not subject to FACA, and 
appropriate procedures were followed for development of voluntary 
consensus standards. The Councils have forwarded the respondent's 
concerns to EPA. If the respondent has further questions with regard to 
the EPEAT, key EPEAT points of contact are provided on the EPEAT 
Website at http://www.epeat.net/faq.aspx#21.
    4. The same respondent expresses particular concern because this 
rule takes a non-governmental program that was to be used voluntarily 
by purchasers and now mandates its use by all Federal Government 
agencies. The respondent also questions the urgency for issuance of an 
interim rule rather than a proposed rule.
    Response: With regard to mandating the use of the EPEAT for 
Government purchases, the rule implements the Executive Order 13423, 
Strengthening Federal Environmental, Energy, and Transportation 
Management. Section 2(h) states that the head of each Agency shall 
``ensure that the agency (i) when acquiring an electronic product to 
meet its requirements, meets at least 95 percent of those requirements 
with an Electronic Product Environmental Assessment Tool (EPEAT)-
registered electronic product, unless there is no EPEAT standard for 
such product''.
    The rule was issued as an interim rule because the Executive Order 
mandating use of the EPEAT standards was already in effect. Rules that 
implement a statute or Executive Order are generally issued as interim 
rules.
    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 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 it mandates standards 
in orders for personal computer products that will be offered for sale 
to the Government. A Final Regulatory Flexibility Analysis (FRFA) has 
been prepared and is summarized as follows:

    This final rule was initiated to implement Executive Order 
13423, Strengthening Federal Environmental, Energy, and 
Transportation Management, Section 2(h) and the IEEE (Institute of 
Electrical and Electronics Engineers) 1680 Standard for the 
Environmental Assessment of Personal Computers, for Federal use in 
meeting green purchasing requirements when acquiring personal 
computer products.

[[Page 2741]]

    There were no significant issues raised by the public comments 
in response to the initial regulatory flexibility analysis.
    As of June 2008, seven of the twenty-seven vendors who have 
registered products on the EPEAT Product Registry reported that they 
are small businesses. Data are not available on how many small 
businesses are reselling personal computer products to the 
Government, but according to the EPA's Office of Small Disadvantaged 
Business Utilization, at the time of publication of the interim 
rule, there were approximately 613 Service Disabled Veteran Owned 
Small Businesses (SDVOSBs) selling IT hardware to the Federal 
Government. These small businesses were not manufacturers of IT 
hardware, but resold IT hardware manufactured by other companies to 
the Federal Government. Many of the products these resellers sold 
could meet the IEEE 1680 Standard, and the manufacturers of these 
products had the option of getting these products EPEAT registered 
to verify that they do meet this standard.
    Because manufacturers are the parties responsible for 
determining if their products meet the IEEE 1680 Standard or not, 
there will be little to no impact on small businesses selling IT 
products to the Federal Government, who are selling EPEAT-registered 
products. In addition, the EPEAT Product Registry has been designed 
to encourage small business manufacturer participation. There is a 
sliding scale for the annual EPEAT registration fee vendors pay to 
have their products EPEAT registered based on the annual revenue of 
the vendor.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    The FAR Secretariat has submitted a copy of the FRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. A copy of 
the FRFA may be obtained from the FAR Secretariat. The Councils will 
consider comments from small entities concerning the affected FAR Parts 
11, 23, 39, 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 2006-030), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Parts 11, 23, 39, and 52

    Government procurement.

    Dated: December 24, 2008
Edward Loeb,
Acting Director, Office of Acquisition Policy.
    Interim Rule Adopted as Final Without Change
    Accordingly, the interim rule amending 48 CFR parts 11, 23, 39, and 
52 which was published in the Federal Register at 72 FR 73215 on 
December 26, 2007, is adopted as a final rule without change.
[FR Doc. E9-549 Filed 1-14-09; 8:45 am]
BILLING CODE 6820-EP-S