Federal Acquisition Regulation; Biobased Procurements, 41179-41181 [2011-17453]

Agencies

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

[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Proposed Rules]
[Pages 41179-41181]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17453]



[[Page 41179]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 11, 23, and 52

[FAR Case 2010-004; Docket 2010-0004; Sequence 1]
RIN 9000-AM03


Federal Acquisition Regulation; Biobased Procurements

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 implement changes to the Farm Security 
and Rural Investment Act. The rule proposes to require contractors to 
report the biobased products purchased under service and construction 
contracts. This will allow Federal agencies to monitor compliance with 
the Federal preference for purchasing biobased products.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addressees shown below on or 
before September 12, 2011 to be considered in the formation of the 
final rule.

ADDRESSES: Submit comments in response to FAR case 2010-004 by any of 
the following methods:
     Regulations.gov: https://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2010-004'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2010-004.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2010-004'' on your attached document.
     Fax: (202) 501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th 
Floor, Washington, DC 20417.
    Instructions: Please submit comments only and cite FAR Case 2010-
004, in all correspondence related to this case. All comments received 
will be posted without change to https://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 
Regulatory Secretariat at (202) 501-4755. Please cite FAR Case 2010-
004.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to amend the Federal Acquisition 
Regulation (FAR) to implement changes to the Farm Security and Rural 
Investment Act. The rule proposes to require contractors to report the 
biobased products purchased under service and construction contracts. 
This will allow Federal agencies to monitor compliance with the Federal 
preference for purchasing biobased products.

A. Overview

    Section 9002 of the Farm Security and Rural Investment Act of 2002, 
codified at 7 U.S.C. 8102, was amended by the Food, Conservation, and 
Energy Act of 2008 (Pub. L. 110-246). 7 U.S.C. 8102 requires Federal 
agencies to establish a procurement program, develop procurement 
specifications, procure biobased products, and give preference to those 
items that are composed of the highest percentage of biobased products 
practicable or those products that comply with the regulations issued 
under section 103 of Public Law 100-556 (42 U.S.C. 6914b-1). 7 U.S.C. 
8102 allows flexibility to procuring agencies not to procure products 
if the product cannot be acquired--
    (i) Within a time frame providing for compliance with the contract 
performance schedule;
    (ii) Meeting reasonable performance requirements; or
    (iii) At a reasonable price.
    The Biobased Products Preference Program was originally implemented 
in the FAR on November 7, 2007 (72 FR 63040). This proposed rule will 
implement additional provisions of 7 U.S.C. 8102 as amended by Public 
Law 110-246.

B. Invitation for Specific Comments

    The rule is being published as a proposed rule because the specific 
method of collecting the information required by Public Law 110-246 is 
not specified in the statute but is necessary for implementing in 
Federal contracts. This proposed rule identifies the specific proposed 
method.
    (1) DoD, GSA, and NASA invite comments on the least burdensome, 
most cost-efficient method to collect this information. DoD, GSA, and 
NASA are particularly interested in current practices to track 
purchases of biobased products.
    (a) How is the purchase and use of biobased products tracked and to 
what level of detail are they tracked, e.g., product type, product 
name, quantity, price?
    (b) Is the tracking automated or manual?
    2. Comments are solicited on the level of effort required to 
collect and report this information under a specific federal contract. 
Is the purchase and use of biobased products allocated to a specific 
contract as a direct cost or as an overhead costs?
    (3) The estimated burden includes Fiscal Year 2009 and 2010 Federal 
Procurement Data System contract actions selected from the following 
Product Service Codes: A--Research and Development; F--Natural 
Resources Management; J--Maintenance, Repair, and Rebuilding of 
Equipment; M--Operation of Government-Owned Facility; S--Utilities and 
Housekeeping Services; T--Photographic, Mapping, Printing, and 
Publication Services; Y--Construction of Structures and Facilities; and 
Z--Maintenance, Repair or Alteration of Real Property.
    (a) Are there certain contracts where biobased items are not 
typically purchased, such as information technology services, or should 
all services be included in the information collection?
    (b) What impact or estimated burden would there be on 
subcontractors under contract actions which include FAR 52.223-2? What 
would be the average number of subcontractors on such contract actions?
    (4) Comments are solicited on any new technologies, including 
Internet-based technologies, that would reduce the burden for this 
information collection and afford significant opportunities for 
reducing costs and increasing simplification of the collection.

II. Proposed Changes to the FAR

A. Definition

    The definition of ``biobased product'' is revised in FAR part 2 in 
accordance with the Public Law 110-246. A corresponding change is made 
at FAR 23.404(e).

B. Limit on Data Collection

    For biobased products, a prohibition was added at FAR 11.302(c)(2) 
against agencies collecting more data than would typically be provided 
by other business entities, other than data confirming the biobased 
content of a product. At FAR 23.405(a)(3) a cross-

[[Page 41180]]

reference is added to FAR 11.302(c) to remind contracting officers that 
when acquiring recovered material or biobased products, the contracting 
officer may request information or data on such products, including on 
the recycled or biobased content or related standards of the products.

C. Annual Report

    FAR 52.223-2, Affirmative Procurement of Biobased Products Under 
Service and Construction Contracts, is proposed for amendment to 
require the contractor to report annually the product types and dollar 
value of any biobased products purchased during the preceding fiscal 
year on the contract.
    The purpose of this information collection is to monitor Federal 
agencies' compliance with 7 U.S.C. 8102, Federal Procurement of 
Biobased Products. Agencies can internally track direct procurement of 
biobased items. However, Federal agencies lack the ability to directly 
track biobased products purchased under service and construction 
contracts. The proposed information collection requirement is to track 
biobased products purchased by contractors under service and 
construction contracts.

III. Executive Orders 12866 and 13563

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

IV. 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 rule 
requires that the contractor report on the product types and dollar 
value of biobased products in the performance of a service or 
construction contract. Where this information is not already available, 
this may mean contractors will need to create an inventory management 
system to track the product types and dollar value of biobased products 
purchased for each contract. However, DoD, GSA, and NASA expect that 
the impact will be minimal, because the existing clause being amended 
already requires the contractor to make maximum use of biobased 
products in the performance of a service and construction contract, and 
the change does not impose any substantial requirements. Small 
businesses are active suppliers of biobased products, and this rule may 
serve to enhance their participation in this market.
    In addition, the Small Business Administration's Office of Advocacy 
estimates that compliance with environmental requirements is 
significantly more costly to small businesses than large business. For 
recent research on this topic, see https://www.sba.gov/sites/default/files/rs371tot.pdf.
    The Regulatory Secretariat has submitted a copy of the Interim 
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for 
Advocacy of the Small Business Administration. A copy of the IRFA may 
be obtained from the Regulatory Secretariat. The Councils invite 
comments from small business concerns and other interested parties on 
the expected impact of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by this 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 2010-004) in 
correspondence.
    The analysis is summarized as follows:

    This rule implements 7 U.S.C. 8102 as amended by Public Law 110-
246, which establishes the policy that Federal agencies shall 
establish a procurement program, develop procurement specifications, 
procure biobased products, and give preference to those items that 
are composed of the highest percentage of biobased products 
practicable or those products that comply with the regulations 
issued under section 103 of Public Law 100-556 (42 U.S.C. 6914b-1).
    This rule imposes a reporting requirement on prime contractors 
with construction or service contracts, unless the contract will not 
involve the use of USDA-designated items.
    The rule promotes the use of biobased products and requires an 
annual report on the product types and dollar value of any USDA-
designated biobased products purchased in carrying out service and 
construction contracts during the previous year. With regard to the 
submission of the report, we estimate that 48,376 contractors will 
be affected. Of those entities, approximately 35,927 are small 
businesses.

V. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies because 
the proposed rule contains information collection requirements. 
Accordingly, the Regulatory Secretariat will submit a request for 
approval of a new information collection requirement concerning 
``Biobased Procurements'' to the Office of Management and Budget.

A. Annual Reporting Burden

    Public reporting burden for this collection of information is 
estimated to average 5 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    The annual reporting burden is estimated as follows:

Respondents: 48,376.
Responses per respondent: 5.
Total annual responses: 241,880.
Preparation hours per response: 5.
Total response burden hours: 1,209,400.

B. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than September 12, 2011 to: FAR Desk Officer, OMB, Room 
10102, NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, Regulatory Secretariat (MVCB), Attn: Hada Flowers, 1275 
First Street, NE., 7th Floor, Washington, DC 20417.
    Public comments are particularly invited on: Whether this 
collection of information is necessary for the proper performance of 
functions of the FAR, and will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.
    Requester may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat (MVCB), 1275 
First Street, NE., 7th Floor, Washington, DC 20417. Please cite OMB 
Control Number 9000-0180, Biobased Procurements, in correspondence.

[[Page 41181]]

List of Subjects in 48 CFR Parts 2, 11, 23, and 52

    Government procurement.

    Dated: July 6, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 11, 
23, and 52 as set forth below:
    1. The authority citation for 48 CFR parts 2, 11, 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 2--DEFINITIONS OF WORDS AND TERMS


Sec.  2.101   [Amended]

    2. Amend section 2.101 by removing from paragraph (b)(2), in the 
definition ``biobased product'', the words ``(including plant, animal, 
and marine materials) or'' and adding ``and'' in its place.

PART 11--DESCRIBING AGENCY NEEDS

    3. Amend section 11.302 by revising paragraph (c)(2) to read as 
follows:


Sec.  11.302   Policy.

* * * * *
    (c) * * *
    (2) For biobased products, agencies may not require, as a condition 
of purchase of such products, the vendor or manufacturer to provide 
more data than would typically be provided by other business entities 
offering products for sale to the agency, other than data confirming 
the biobased content of a product (see 7 CFR 2902.8).

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


Sec.  23.404   [Amended]

    4. Amend section 23.404 by removing from paragraph (e)(1) the words 
``(including plant, animal, and marine materials)''.
    5. Amend section 23.405 by revising paragraph (a)(2) and adding 
(a)(3) to read as follows:


Sec.  23.405   Procedures.

    (a) * * *
    (2) Biobased products. Contracting officers should refer to USDA's 
list of USDA-designated items (available through the Internet at https://www.biopreferred.gov) and to their agencies' affirmative procurement 
program when purchasing supplies that contain biobased material or when 
purchasing services that could include supplies that contain biobased 
material.
    (3) When acquiring recovered material or biobased products, the 
contracting officer may request information or data on such products, 
including on the recycled or biobased content or related standards of 
the products (see 11.302(c)).
* * * * *


Sec.  23.406   [Amended]

    6. Amend section 23.406 by removing from paragraph (b) ``https://www.usda.gov/biopreferred'' and adding ``https://www.biopreferred.gov'' 
in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    7. Amend section 52.223-2 by--
    a. Revising the date of the clause;
    b. Removing from paragraph (b) ``https://www.usda.gov/biopreferred'' 
and adding https://www.biopreferred.gov in its place; and
    c. Adding paragraphs (c) and (d) to read as follows:

52.223-2 Affirmative Procurement of Biobased Products Under Service and 
Construction Contracts

* * * * *

Affirmative Procurement of Biobased Products Under Service and 
Construction Contracts (Date)

* * * * *
    (c) In the performance of this contract, the Contractor shall--
    (1) Report to the cognizant Contracting Officer and the agency 
environmental manager on the product types and dollar value of any 
USDA-designated biobased products purchased by the Contractor during 
the previous year, between October 1 and September 30, in this 
contract;
    (2) Submit this report no later than--
    (i) October 31 of each year during contract performance; and
    (ii) At the end of contract performance; and
    (iii) Contact the cognizant environmental manager to obtain the 
preferred submittal format, if that format is not specified in this 
contract.
    (d) The cognizant environmental manager for this contract is: --
------------------. [Contracting Officer shall insert full name, 
phone number, and email address or Web site for reporting.]

[FR Doc. 2011-17453 Filed 7-12-11; 8:45 am]
BILLING CODE 6820-EP-P