Federal Acquisition Regulation: High Global Warming Potential Hydrofluorocarbons, 30429-30438 [2016-10998]

Download as PDF Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations activity to approve a contracting officer determination to select more than five offerors to submit phase-two proposals. The approval level is delegable no lower than the senior contracting official within the contracting activity. This rule change does not place any new requirements on small entities. Item V—Technical Amendments Editorial changes are made at FAR 1.106. Dated: May 5, 2016. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Federal Acquisition Circular (FAC) 2005–88 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005–88 is effective May 16, 2016 except for items I, II, III, and IV, which are effective June 15, 2016. Dated: May 4, 2016. Claire M. Grady, Director, Defense Procurement and Acquisition Policy. Dated: May 5, 2016. Jeffrey A. Koses, Senior Procurement Executive/Deputy CAO, Office of Acquisition Policy, U.S. General Services Administration. Dated: April 28, 2016. William P. McNally, Assistant Administrator, Office of Procurement National Aeronautics and Space Administration. [FR Doc. 2016–10995 Filed 5–13–16; 8:45 am] DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 2, 7, 11, 23, 25, and 52 [FAC 2005–88; FAR Case 2014–026; Item I; Docket No. 2014–0026; Sequence 1] asabaliauskas on DSK3SPTVN1PROD with RULES RIN 9000–AM87 Federal Acquisition Regulation: High Global Warming Potential Hydrofluorocarbons Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 Final rule. DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement Executive branch policy in the President’s Climate Action Plan to procure, when feasible, alternatives to high global warming potential (GWP) hydrofluorocarbons (HFCs). This final rule will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order on Planning for Sustainability in the Next Decade. DATES: Effective: June 15, 2016. FOR FURTHER INFORMATION CONTACT: Mr. Charles Gray, Procurement Analyst, at 703–795–6328, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite FAC 2005– 88, FAR Case 2014–026. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DoD, GSA, and NASA published a proposed rule at 80 FR 26883, on May 11, 2015, to implement Executive branch policy in the President’s Climate Action Plan to procure, when feasible, alternatives to high GWP HFCs. This final rule will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order 13693, Planning for Federal Sustainability in the Next Decade, of March 25, 2015. Sixteen respondents submitted comments on the proposed rule. II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows: BILLING CODE 6820–EP–P AGENCY: ACTION: A. Summary of Significant Changes From the Proposed Rule In response to public comments received, the final rule contains the following changes from the proposed rule: • Clarified the definition of ‘‘high global warming potential hydrofluorocarbons’’ to make it specific to a particular end use. • Included the use of reclaimed HFCs as products that minimize or eliminate the use, release, or emission of high GWP HFCs. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 30429 • Clarified that the clause prescription exception is for supplies that will be delivered outside the United States and its outlying areas as well as for contracts for services performed outside the United States and its outlying areas. • Added in the clauses at 52.223–20 and 52.223–21 environmental, technical, and economic factors to consider when determining feasibility. B. Analysis of Public Comments 1. General a. Support the Objectives of the Rule Comments: Many of the respondents expressed specific support for the objectives of the rule. Several respondents applauded DoD, GSA, and NASA in proposing that Federal agencies procure, when feasible, alternatives to high-GWP HFC refrigerants. Other respondents stated that the proposed rule is a step in the right direction and could have considerable impact on reducing the Government’s greenhouse gas emissions and helping Federal agencies and departments meet several Executive actions and orders pertaining to HFCs. Response: Noted. b. Oppose the Objectives of the Rule Comment: One respondent believed that global warming is a farce and that the Government should not be allowed to acquire anything because of global warming. Response: The FAR Council is responsible for the implementation of the Executive orders and policies of the Administration. DoD, NASA, and GSA have prepared this rule to implement and facilitate compliance with Executive Order 13693, Planning for Sustainability in the Next Decade, and the President’s Climate Action Plan. 2. Definition of ‘‘high global warming potential hydrofluorocarbons’’ Various respondents commented on the definition of ‘‘high global warming potential hydrofluorocarbons.’’ One of these respondents questioned whether the identification of a lower GWP HFC alternative pursuant to the SNAP program meant that the Government would be required to use the alternative. Response: The Councils have further clarified in the final rule that the term ‘‘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 E:\FR\FM\16MYR2.SGM 16MYR2 asabaliauskas on DSK3SPTVN1PROD with RULES 30430 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations is found at 40 CFR part 82, subpart G, with supplemental tables of alternatives available at http://www.epa.gov/snap. For every end use, the SNAP program lists include several different alternatives as acceptable for the same end use or application and provides information, including the GWPs of alternatives. The decision as to which of the SNAP-listed acceptable alternatives to select in a particular end use should emphasize the alternative with the lowest GWP that meets the needs of the user. With regard to the required use of a lower GWP HFC product identified in the SNAP list of alternatives products, the Government’s decision to do so must take into consideration the feasibility of moving on to an alternative. This decision will require the assessment of a number of factors, including lifecycle costs and the overall energy efficiency achieved through the substitution of a lower GWP HFC product. Comment: One respondent criticized the SNAP program, upon which the proposed definition is based. Among other concerns, the respondent believes that the SNAP program has identified some substitutes that have significant drawbacks, including poor thermal efficiency, flammability issues, processing difficulties, and limited global availability. Similarly, another respondent did not agree that the definition of high GWP HFCs should be created by simple reference to the SNAP program, because other relevant factors need to be considered (see also section 3.d.). Another respondent commented that the term ‘‘high global warming potential hydrofluorocarbons’’ was defined solely in term of relative GWP (compared to alternatives approved under the EPA’s SNAP program.) The respondent is concerned that the policies based on this definition fail to take into account other major causes of climate impact. Response: In response to the concern raised by one respondent regarding significant drawbacks of some substitutes identified by SNAP, it is helpful to understand the SNAP program’s framework for review and listings. EPA applies seven specific criteria for determining whether a substitute is acceptable or unacceptable. These criteria, which can be found at 40 CFR 82.180(a)(7), include atmospheric effects and related health and environmental effects, ecosystem risks, consumer risks, flammability, and cost and availability of the substitute. To enable EPA to assess these criteria, EPA requires submitters to include various information including ozone depletion VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 potential (ODP), GWP, toxicity, flammability, and the potential for human exposure. The SNAP program does not review for a substitute’s performance or efficacy. The SNAP list of alternatives evolves as new substitutes become available and substitutes that pose significantly greater risk than other available substitutes are determined to no longer be acceptable for use. These changes occur because of the changing availability of substitutes for a specific use as well as EPA’s overall understanding of the environmental and human health impacts of substitutes already listed as compared with new substitutes. However, as changes are made to the SNAP lists, EPA assures users that multiple substitutes are available for any given end use and that end users continue to have options. In its recent final rule, published at 80 FR 42869, on July 20, 2015, EPA modified the listings for certain HFCs and HFC blends in various end uses in the aerosols, foam blowing, and refrigeration and air conditioning sectors where other alternatives were available or potentially available that posed lower overall risk to human health and the environment. Pursuant to the guiding principles of the SNAP program, the action did not specify that any HFCs are unacceptable across all sectors and end uses. Consistent with section 612 of the Clean Air Act (42 U.S.C. 7671k) as EPA has historically interpreted it under the SNAP program, EPA made the modifications based on evaluation of the substitutes addressed in that action using the SNAP criteria for evaluation and considering the current suite of other available and potentially available substitutes. For the refrigerant and foam blowing agent end uses, equipment design is critical. Thus, there is a range of thermal conductivity and insulation values among the acceptable alternatives, with some having lower values than the HFCs previously used (as well as ozonedepleting substances (ODS)) some having higher values, and others having comparable values. In EPA’s recent rulemaking published at 80 FR 42869, on July 20, 2015, EPA noted that no information provided to EPA suggests that the alternatives that remain acceptable result in lower energy efficiency. In fact, as stated in the preamble to the rule, available information indicates that the opposite can be true, that the acceptable alternatives not subject to a status change have been used in equipment or used to produce insulating foam that provide for better energy efficiency. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 In response to the respondent who disagreed that the definition of high GWP HFCs should refer just to the SNAP program, the Councils note that the definition does not bind the end user to select any specific alternative or to ignore assessment of the unique needs that end user may be facing. Rather, requiring activities can use the information provided by the SNAP list of alternatives, including information on the GWP of alternatives, in addition to other factors, in the selection of products and equipment that best meet their needs. Please see related response below regarding comments on the feasibility of moving to alternatives. In response to the respondent who commented that the term ‘‘high global warming potential hydrofluorocarbons’’ was defined solely in terms of relative GWP (compared to other alternatives approved under the EPA’s SNAP program) and was concerned that this failed to take into account other major causes of climate impact, the term is intended to reflect differences in GWP. This is consistent with how climate impacts are considered under the SNAP program (See section VII.A.3., GWP Considerations, in the preamble to the recent EPA SNAP final rule published at 80 FR 42870 at 42937, on July 20, 2015). Users may take into account additional factors, such as energy efficiency, in deciding which of the lower-GWP alternatives listed as acceptable under SNAP meet their needs. For clarification, please also see the response below that discusses other factors such as energy efficiency, which are related to the performance of the equipment, whereas GWP relates to the intrinsic characteristic and potential environmental impact of the chemical itself. 3. Policy. a. Lower vs. lowest/climate-friendly Comment: One respondent, primarily addressing refrigerants, recommended addition of the following definitions to the rule: ‘‘Climate-friendly’’ alternative means an alternative that is listed as acceptable under the EPA’s SNAP program (40 CFR part 82, subpart G) that has a GWP of less than 150. ‘‘Lowest GWP alternative’’ means an alternative that is identified as acceptable under the EPA’s SNAP program and has the lowest GWP compared to all other acceptable alternatives for the relevant end use and has a GWP under 150 for new equipment and a GWP at least 50 percent lower than the current refrigerant for retrofits. E:\FR\FM\16MYR2.SGM 16MYR2 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES The respondent further recommended a policy that would avoid procurement of mid-range GWP alternatives (from 300 to 1500 GWP) if truly low GWP alternatives have been proven and commercialized, because use of midrange alternatives would set up a circumstance where a future phase-out in just a few years will be necessary to remove these mid-range GWP alternatives due to their impact on the climate. Consistent with the definition recommended by the respondent, the respondent also recommended that the Government should not purchase any new equipment or product unless it has a refrigerant with a GWP of less than 150 and for retrofits, higher GWP refrigerants can be used if they have GWPs of at least 50 percent less than the current refrigerant that will be replaced. Otherwise, the respondent recommended that the old system should be decommissioned and replaced. Response: While GWP is an important criterion, it should not be the sole criterion for consideration. The EPA SNAP program conducts comparative risk analyses for each end use and alternative, and has not set specific GWP limits for acceptable alternatives in a specific end use. For example, while an alternative refrigerant in one application might have a GWP that meets the respondent’s proposed GWP limit of 150, there may be other human health or environmental considerations for the particular end use or application (e.g., toxicity limits, flammability) that may lead the user to determine that another alternative is more suitable for that particular application. For this reason and others, Federal agency requiring activities and contractors need the flexibility to be able to evaluate the entire suite of lower GWP alternatives and to balance direct climate impacts, energy efficiency, safety, performance, and other user needs before selecting the one most appropriate for their specific use. b. Timing Various respondents commented on the timing of when the FAR rule should take effect. Comment: Several respondents recommended that the enactment of this rule should be tied to the HFC conversion timelines within the EPA SNAP rule published at 80 FR 42870, on July 20, 2015, and that this rule is imposing use of lower GWP alternatives ‘‘earlier than required.’’ Unless otherwise noted, all references to a SNAP rule in this document are in reference to the final rule published at 80 FR 42870, on July 20, 2015. VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 According to one of the respondents, the SNAP final rule specified that use of HFC–134a would be unacceptable for use in polystyrene extruded boardstock and billet as of January 1, 2021. Response: It is not the intent of this rule to require conversion to alternatives on earlier timelines than in the SNAP final rule. Rather, as stated in the background section of the proposed FAR rule, the purpose of this final rule is to facilitate the purchase of cleaner alternatives to HFCs whenever feasible and transition over time to equipment that uses safer and more sustainable alternatives. Comment: A respondent also recommended coordinating with Department of Energy rulemaking on energy efficiency and conservation standards. Companies are working to comply with these stringent new standards. Response: The Councils are aware of the Department of Energy (DOE) rulemaking titled, ‘‘Energy Efficiency Standards for New Federal Commercial and Multi-Family High-Rise Residential Buildings’ Baseline Standards Update’’, published at 80 FR 68749, on November 6, 2015, and have taken the DOE rules into account in drafting this final rule. The rule requires reduction in the use, release, and emissions of high GWP HFCs only when feasible. The clauses state that a determination of feasibility would include consideration of energy efficiency. Comment: One respondent noted that there is a great range of speeds by which the sectors, and the companies within them, who use HFCs, can transition into lower GWP alternatives. Another respondent stated that a transition to low GWP blowing agents must be conducted over a timeline that allows individual manufacturers to identify suitable alternatives and conduct necessary product development and testing to fully commercialize new formulations. Another respondent recommended modifying the clause at FAR 52.223–12(c)(1) to require transitioning ‘‘at the earliest feasible time’’ from high GWP HFCs to acceptable alternatives. Response: The President’s Climate Action Plan specifically directs agencies to purchase cleaner alternatives to HFCs whenever feasible and transition over time to equipment that uses safer and more sustainable alternatives. The language used in the Climate Action Plan: (1) Recognizes that there are technical hurdles that must be overcome to identify suitable alternatives, conduct necessary product development and testing, and fully commercialize new formulations; and (2) envisions a PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 30431 transition ‘‘over time.’’ Accordingly, this final rule allows existing Government equipment to be utilized until the end of its useful life, thus minimizing stranded capital. c. Acceptability and Feasibility Comments: More than half of the respondents commented on the need to consider factors other than low GWP value in determining the acceptability and/or feasibility of using a lower GWP alternative. According to many respondents, lower GWP alternatives must be both environmentally and economically acceptable. One respondent stated that considering only the GWP of a compound may not be appropriate, depending on the circumstances of a particular use. This respondent also stated that GWP alone is an insufficient measure of a product’s impact on human health and the environment. A few respondents stated the need for a definition of ‘‘feasible.’’ They noted that without a definition, contractors will have little guidance as to when adoption of low GWP substances would be appropriate and/or required and the rule will have little impact on procurement decisions. i. Life Cycle/Energy Efficiency Many of the respondents recommended consideration of the total life-cycle of an alternative product, such as in-use emission rates and energy efficiency benefits. • With regard to refrigerants, a respondent commented that the majority of the climate impact from refrigerant used results from the energy consumed by the air conditioning system (i.e., the indirect impact) and not from the GWP of the refrigerant itself (i.e., the direct climate impact). According to the respondent, refrigerant selection has a substantial impact on the energy efficiency of the air conditioning system in which the refrigerant will be used. • With regard to foam insulation, a respondent commented on the importance of the use of thermal insulation for increased energy efficiency to reduce global warming. Likewise, another respondent pointed out the need to consider the life-cycle benefits of products, because if less energy efficient insulation products are used in the construction of a building the result may be increased greenhouse gas emissions over the life of the building or facility. ii. Safety—Flammability Several respondents commented on the need to consider key product attributes that affect safety, such as E:\FR\FM\16MYR2.SGM 16MYR2 30432 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations flammability. Another respondent mentioned that feasible alternatives should consider standards and codes compliance (such as safety standards). iii. Technical Capability Several respondents commented on the necessity to consider technical capability of the proposed alternative to avoid inadvertently selecting a product that will prove to be less energy efficient. iv. Commercial Availability Several respondents commented on the need for alternatives to be commercially available. One respondent recommended that absence of commercially available alternatives should constitute a viable exemption from the provisions of the rule. One respondent recommended that decisions on feasibility of low GWP alternatives need to be assessed based on available technologies. asabaliauskas on DSK3SPTVN1PROD with RULES v. Cost Several respondents mentioned cost as another factor for consideration. One respondent asked whether the taxpayer should be forced to pay more than the general public, by adopting lower GWP products earlier than required. vi. Definition One of the respondents recommended defining ‘‘feasibility’’ as ‘‘a commercially available alternative with a GWP lower than that of the currently used substance in the relevant application, that (1) is identified by EPA as an acceptable alternative under 40 CFR part 82, which increases the total cost of the installation or bid by not more than 10 percent more than would be the cost if high GWP substances were used.’’ Response: The concerns raised by the respondents in paragraphs 3.c.i. through vi. of this analysis of the public comments are issues considered by EPA in making listing decisions under the SNAP program. Section 612 of the Clean Air Act provides that EPA must prohibit the use of a substitute where EPA has determined that there are other available substitutes that pose less overall risk to human health and the environment for that use. EPA reviews substitutes using a comparative risk framework and GWP is only one of several criteria EPA considers in its overall evaluation. EPA also considers factors such as ozone depletion potential, exposure assessments, flammability, toxicity, and other environmental impacts. In addition, in the recent change of status rule in which EPA changed the status of a number of high GWP substitutes from VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 acceptable to unacceptable, EPA considered the technical challenges of a transition and the supply of other alternatives in establishing the transition date. As the term is used in this rule, ‘‘feasible’’ means not only capable of being accomplished, but capable of being accomplished successfully and suitably. All of the factors mentioned by respondents are relevant in the decision as to which acceptable alternative is preferable in a given application. Alternatives that have been determined acceptable by EPA under the SNAP Program should still be evaluated in each particular application in terms of environmental, technical, and economic feasibility. The FAR Council does not have a basis (such as statute or Executive Order) upon which to establish a specific cost differential that would constitute an unreasonable cost. An assessment of whether a cost is unreasonable depends partly on the benefits to be derived from use of the alternative and other economic factors. Therefore, the final rule does not define the term ‘‘feasibility,’’ but provides direction to the Federal user and contractor in terms of factors to be considered when determining the feasibility of using an acceptable lower GWP alternative (FAR 52.223–20, Aerosols, and 52.223–21, Foams). d. Refrigerant Management Comment: Many of the respondents commented on the need for better refrigerant management, including the recovery, reclamation, and reuse of refrigerant. • Leaks and accidental or intentional venting of refrigerant. As stated by one respondent, refrigeration and air conditioning systems are prone to leaks during normal operations. Even with aggressive leak detection, these appliances and systems require servicing to maintain the proper refrigerant change and performance. Another respondent emphasized that air conditioning and refrigeration systems are actually non-emissive uses of HFCs since these are closed systems. The concern with HFCs, therefore, is not the use, but the misuse. According to the respondent, the vast amount of HFC emissions result from leaks and accidental or intentional venting of refrigerant. • Increase the use of reclaimed refrigerants. According to one respondent, nearly all lost refrigerant is replaced with newly produced virgin refrigerant. Another respondent recommended that the benefits of the proposed rule could be significantly enhanced by defining acceptable low GWP alternatives to include reclaimed PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 refrigerants. Rather than wait for low GWP alternatives to be deployed in retrofitted or newly installed equipment, the Federal Government can significantly reduce greenhouse gas emissions in the near-term by including reclaimed HFC refrigerant as part of the procurement priorities. Another respondent recommended that the Government should give preference to the use of reclaimed refrigerant to service existing Federal buildings and facilities, just like the Federal Government promotes recycled paper and other consumer goods. • Improved refrigerant management. As stated by a respondent, a Federal program promoting reclaimed refrigerant will encourage better refrigerant management practices in the private sector, because companies will recognize that their used refrigerant has an economic value. Another respondent noted that the policy would provide incentive for recovery of HFC refrigerant from older end-of-life equipment (currently only approximately 10 percent is recovered and reclaimed). • Less production of virgin HFC refrigerants. One respondent stated that the goal should be to limit production of all virgin refrigerants, including lower GWP HFCs. As stated by another respondent, use of reclaimed refrigerant displaces additional production of new HFC refrigerant, thereby preventing greenhouse gas emissions that would otherwise occur. Response: The Councils recognize that refrigerant management is an important way to reduce climatedamaging and ozone-depleting emissions from equipment used for airconditioning and refrigeration. While the existing EPA regulations prohibit any person from knowingly venting, releasing, or disposing into the environment any ozone-depleting or HFC refrigerant in the course of maintaining, servicing, repairing, or disposing of air-conditioning or refrigeration appliances, they do not establish requirements to repair leaks or specify other servicing requirements for equipment containing HFCs. EPA has recently proposed updating the existing refrigerant management requirements under section 608 of the Clean Air Act and extending them to cover servicing practices for HFCs (see 80 FR 69457, dated November 9, 2015). There are also environmental benefits to promoting the use of reclaimed material over virgin production. Both newly-produced and reclaimed refrigerants must meet the same purity requirements and thus reclaimed refrigerant can be used instead of newly produced refrigerants. This final rule E:\FR\FM\16MYR2.SGM 16MYR2 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations provides use of reclaimed HFCs as an example of sustainable acquisition under FAR 11.002(d)(1) and encourages their use at FAR clause 52.223–12(c)(4). 4. Exceptions asabaliauskas on DSK3SPTVN1PROD with RULES a. Outside the United States Various respondents commented on the exception in the proposed rule for contracts that will be performed outside the United States and its outlying areas. Comment: One respondent requested clarification of what ‘‘performed outside the United States and its outlying areas’’ means for the acquisition of supplies. Another respondent stated that the rule should apply to both domestic and foreign procurement decisions, because limiting the scope to domestic acquisitions misses an opportunity to further reduce greenhouse gas emissions. Other respondents stated that an effective means of reducing the future climate change contribution of HFCs must be global in nature. One respondent recommended that that application to contracts outside to United States and its outlying areas should be excepted only if proven to be unfeasible. Response: The clause prescription at FAR 23.804 has been clarified by specifying that the exception to use of the clause is for contracts for supplies to be delivered outside the United States and its outlying areas, or contracts for services to be performed outside the United States and its outlying areas. This rule only applies to contracts for supplies to be delivered within the United States or its outlying areas or to services to be performed within the United States or its outlying areas. b. Military and Space Activities Comment: One respondent asked whether DoD, GSA, and NASA would be prohibited from taking advantage of the SNAP exemptions provided for military and space activities. Response: Nothing in this rule precludes Federal agencies from taking advantage of the exemptions to the SNAP requirements, as currently provided in the SNAP final rule for military and space- and aeronauticsrelated applications. However, this rule, unlike the SNAP Program, requires transitioning in advance of the SNAP deadlines, only when feasible. Therefore, an exception for military and space activities is unnecessary. In accordance with the overall construction of the rule, exemptions for military and space activities would fall under the general exemption as infeasible. In addition, the FAR clauses state that a contractor shall transition to lower VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 GWP alternatives ‘‘unless otherwise specified in the contract.’’ In those cases where a Federal agency has critical uses where only qualified high GWP HFCs may be used, these would be specified in a contract and unqualified lower GWP alternatives would not be allowed. c. Low Temperature Refrigeration Systems Comment: One respondent recommended an exemption for low temperature refrigeration systems operating below ¥50 °C. The respondent stated that in both the EU and Canada, similar low GWP initiatives have allowed such an exemption. According to the respondent, due to issues of flammability, energy efficiency, and technical capability, the respondent does not know of any low GWP solutions that meet the needs of ultra-low temperature refrigeration systems. Response: There is no need for a special exemption for a low temperature refrigeration system. The concept of feasibility is addressed and an exemption arises if use of lower GWP alternatives is found to be infeasible. If low GWP alternatives do not meet the needs of ultra-low temperature refrigeration systems, then transition is not feasible and, therefore, not required by this rule. 5. Other a. Labeling Comment: One respondent recommended that contractors should also be required to label products which contain or are manufactured with HFCs. Response: The labeling requirement for products that contain or are manufactured with Ozone-Depleting Substances (ODS) at paragraph (b) of FAR clause 52.223–11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons, is required by statute (42 U.S.C. 7671j) and EPA regulations (40 CFR part 82, subpart E). There is not a comparable requirement for high GWP HFCs. b. Buildings With Multiple Systems Comment: With regard to the reporting requirement in FAR 52.223– 12(d), the respondent recommended changing ‘‘50 or more pounds’’ to ‘‘25 or more pounds’’ and that a building containing multiple systems that each contain individually less than 25 pounds of HFCs or refrigerant blends containing HFCs should be assessed as the entire building’s refrigerant use and not on an individual system level. Response: When drafting the proposed rule, the 50-pound threshold was chosen in order to eliminate PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 30433 tracking and reporting on thousands of pieces of smaller equipment, thereby minimizing administrative burden and costs to contractors, including many small businesses; and also recognizing that larger systems such as building chillers, commissary/large commercial refrigeration systems, and industrial process refrigeration systems likely contribute the largest percentage of total HFC emissions. This 50-pound threshold is also consistent with other existing regulatory requirements for refrigerants imposed under the Clean Air Act and 40 CFR part 82. Recognizing that EPA has proposed (see 80 FR 69457, dated November 9, 2015) updating and expanding the coverage of the refrigerant management requirements established under section 608 of the Clean Air Act, if those requirements are amended, they would be applicable to the public and private sectors. c. Foreign Acquisition Comment: One respondent recommended that the rule should clarify that if certain products identified as acceptable under the EPA SNAP program are available in other markets but not available or not available at commercial levels in the U.S., then the products may be acquired under the nonavailability exception to the Buy American statute (see FAR 25.103). Response: FAR part 25, Foreign Acquisition, addresses domestic source restrictions, including the Buy American Act. However, not all acquisitions are subject to the Buy American Act (e.g., when the acquisition is covered by the World Trade Organization Government Procurement Agreement). Other domestic source restrictions may also apply, and there are sanctions against purchases from certain countries. FAR part 23 must be read in conjunction with FAR part 25. d. Ozone-Depleting Substances Comment: One respondent is concerned that the proposed clause at FAR 52.223–12, Maintenance, Service, Repair, Recycling, or Disposal of Refrigeration Equipment and Air Conditioners, does not include ODS within its scope. Response: This rule is not intended to suggest that users revert to an ODS in lieu of a high-GWP HFC. The language in the rule leaves the current ODS regulatory language, currently at FAR subpart 23.8, in place and only adds language dealing with high GWP HFCs. The definition of ‘‘ozone-depleting substance’’ as any substance designated by the EPA in 40 CFR part 82 also E:\FR\FM\16MYR2.SGM 16MYR2 30434 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations remains in FAR part 2. The language also maintains the current FAR 23.803(a)(2) preference to the procurement of substances that reduce overall risks to human health and the environment by the depletion of ozone in the upper atmosphere. asabaliauskas on DSK3SPTVN1PROD with RULES e. Specific Refrigerants, Foams, and Aerosols Comments: Several respondents commented on specific refrigerants, foams, or aerosols and lower GWP alternatives. • One respondent sent information on a low GWP substitute for HFC–134a. • One respondent included a list of some examples of available low GWP replacements for high GWP HFCs by application (i.e., refrigerants, foam, and aerosols). • Another respondent was concerned that the rule does not require an alternative to the most commonly used refrigerant, HCFC–22, which is both an ODS and has a high GWP, because it is determined to be acceptable by EPA under SNAP. Response: The information on the low GWP alternatives is noted. While the revised FAR subpart 23.8 makes no explicit mention of HCFC–22, or any other specific substance, the regulation refers to EPA’s SNAP program for the list of acceptable alternatives. HCFC–22 remains acceptable as a refrigerant under SNAP. However, existing regulations effectively prohibit the use of virgin HCFC–22 to manufacture a new appliance or retrofit an existing appliance (see 40 CFR 82.15(g)(2)). This restriction does not affect the use of used, recovered, and recycled HCFC–22. Regulations also effectively prohibit the manufacture or import of appliances and appliance components that are precharged with HCFC–22 (see 40 CFR 82.304). Comment: One respondent recommended an additional clause to address clean agent fire suppression. Response: The suggested clause is outside the scope of this case and could not be included in the final rule without publishing for public comment. III. Applicability This rule will apply to all acquisitions inside the United States and its outlying areas of products or services containing or using high GWP HFCs, including— • Acquisitions that do not exceed the simplified acquisition threshold; and • Commercial items (including commercially available off-the-shelf items) that use FAR part 12 procedures. A majority of the acquisitions involving high GWP HFCs do not exceed the simplified acquisition VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 threshold. Applicability of the requirements below the simplified acquisition threshold is necessary to be effective and to cover a significant number of actions and dollars that fall below this threshold. However, the reporting requirement applies only for delivery of, or maintenance, service, repair and disposal of, equipment or appliances normally containing 50 pounds or more of HFCs or refrigerant blends containing HFCs. Likewise, a majority of the acquisitions involving high GWP HFCs involve the acquisition of commercial items. Applicability of the requirements to commercial items is necessary to be effective and include a significant number of actions and dollars for commercial item acquisitions. IV. 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. V. Regulatory Flexibility Act DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: This rule is necessary to implement Executive branch policy stated in the President’s Climate Action Plan. The objective of this rule is to require Federal agencies to procure climate-friendly chemical alternatives to high global warming potential (GWP) hydrofluorocarbons (HFCs) and allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of Executive Order 13693, Planning for Sustainability in the Next Decade. There were no issues raised by the public comments in response to the initial regulatory flexibility analysis. Based on FPDS data for Fiscal Year 2015, this rule will apply to approximately 1400 small business contractors that provide certain supplies (including equipment and appliances) that contain HFCs to the Federal Government and about 347 small business contractors that provide maintenance, PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 service, repair, or disposal of refrigeration equipment or air conditioners. In addition, although the clauses at 52.223–20, Aerosols, and 52.223–21, Foams, do not contain any reporting requirements, these clauses also apply respectively to solicitations and contracts that involve repair or maintenance of electronic or mechanical devices and construction of buildings and facilities. DoD, GSA, and NASA estimate an average reporting burden of about 8 hours per year for each small business providing supplies that contain high GWP HFCs or maintenance, repair, or disposal of refrigeration equipment or air conditioners. DoD, GSA, and NASA did not identify any significant alternatives to the rule that would accomplish the stated objectives of the President’s Climate Action Plan and the Executive Order. It is necessary for the rule to apply to small entities, because about three-quarters of the affected contractors are small businesses and excluding them would minimize the importance of this policy and may prevent the Government from meeting the objective of this policy. Every effort has been made to minimize the burdens imposed. For example, this rule only requires tracking and reporting on equipment that normally contain 50 or more pounds of HFCs. In addition, this rule does not impose a labeling requirement for products that contain or are manufactured with HFCs, unlike the labeling requirement that is required by statute for ozone-depleting substances. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. VI. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The rule contains information collection requirements. OMB has cleared this information collection requirement under OMB Control Number 9000–0191, titled: ‘‘High Global Warming Potential Hydrofluorocarbons.’’ List of Subjects in 48 CFR Parts 1, 2, 7, 11, 23, 25, and 52 Government procurement. Dated: May 5, 2016. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore, DoD, GSA and NASA amend 48 CFR parts 1, 2, 7, 11, 23, 25, and 52 as set forth below: 1. The authority citation for 48 CFR parts 1, 2, 7, 11, 23, 25, and 52 continues to read as follows: ■ Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. E:\FR\FM\16MYR2.SGM 16MYR2 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 2. Amend section 1.106 by adding to the table, in numerical order, FAR segments ‘‘52.223–11’’ and ‘‘52.223–12’’ with their corresponding OMB control number ‘‘9000–0191’’. ■ PART 2—DEFINITIONS OF WORDS AND TERMS Definitions. asabaliauskas on DSK3SPTVN1PROD with RULES * * * * * (b) * * * (2) * * * 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 http://www.epa.gov/snap/). * * * * * Hydrofluorocarbons means compounds that contain only hydrogen, fluorine, and carbon. * * * * * Manufactured end product means any end product in product and service codes (PSC) 1000–9999, except— (1) PSC 5510, Lumber and Related Basic Wood Materials; (2) Product or service group (PSG) 87, Agricultural Supplies; (3) PSG 88, Live Animals; (4) PSG 89, Subsistence; (5) PSC 9410, Crude Grades of Plant Materials; (6) PSC 9430, Miscellaneous Crude Animal Products, Inedible; (7) PSC 9440, Miscellaneous Crude Agricultural and Forestry Products; (8) PSC 9610, Ores; (9) PSC 9620, Minerals, Natural and Synthetic; and VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 PART 7—ACQUISITION PLANNING 4. Amend section 7.103 by revising paragraph (p)(2) to read as follows: ■ 7.103 3. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical order, the definitions ‘‘Global warming potential’’, ‘‘High global warming potential hydrofluorocarbons’’, ‘‘Hydrofluorocarbons’’, ‘‘Manufactured end product’’, and ‘‘Products’’ to read as follows: ■ 2.101 (10) PSC 9630, Additive Metal Materials. * * * * * Products has the same meaning as supplies. * * * * * Agency-head responsibilities. * * * * * (p) * * * (2) Comply with the policy in 11.002(d) regarding procurement of biobased products, products containing recovered materials, environmentally preferable products and services (including Electronic Product Environmental Assessment Tool (EPEAT®)-registered electronic products, nontoxic or low-toxic alternatives), ENERGY STAR® and Federal Energy Management Programdesignated products, renewable energy, water-efficient products, non-ozonedepleting products, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons, such as by using reclaimed instead of virgin hydrofluorocarbons; * * * * * PART 11—DESCRIBING AGENCY NEEDS 5. Amend section 11.002 by revising paragraph (d)(1)(vi) to read as follows: ■ 11.002 Policy. * * * * * (d)(1) * * * (vi) Non-ozone-depleting substances, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons, such as by using reclaimed instead of virgin hydrofluorocarbons (subpart 23.8). * * * * * PART 23—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE 6. Amend section 23.000 by revising paragraph (d) to read as follows: ■ 23.000 Scope. * * * * * (d) Acquiring energy-efficient and water-efficient products and services, PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 30435 environmentally preferable (including EPEAT®-registered, and non-toxic and less toxic) products, products containing recovered materials, biobased products, non-ozone-depleting products, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons, such as by using reclaimed instead of virgin hydrofluorocarbons; * * * * * ■ 7. Revise the heading of subpart 23.8 to read as follows: Subpart 23.8—Ozone-Depleting Substances and Hydrofluorocarbons 8. Revise section 23.800 to read as follows: ■ 23.800 Scope of subpart. This subpart sets forth policies and procedures for the acquisition of items that— (a) Contain, use, or are manufactured with ozone-depleting substances; or (b) Contain or use high global warming potential hydrofluorocarbons. ■ 9. Revise section 23.801 to read as follows: 23.801 Authorities. (a) Title VI of the Clean Air Act (42 U.S.C. 7671, et seq.). (b) Section 706 of division D, title VII of the Omnibus Appropriations Act, 2009 (Public Law 111–8). (c) Executive Order 13693 of March 25, 2015, Planning for Federal Sustainability in the Next Decade. (d) Environmental Protection Agency (EPA) regulations, Protection of Stratospheric Ozone (40 CFR part 82). 23.802 ■ [Removed] 10. Remove section 23.802. 23.803 [Redesignated as 23.802 and Amended] 11. Redesignate section 23.803 as 23.802 and revise newly redesignated 23.802 to read as follows: ■ 23.802 Policy. It is the policy of the Federal Government that Federal agencies— (a) 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; and (b) Give preference to the procurement of acceptable alternative chemicals, products, and manufacturing processes that reduce overall risks to E:\FR\FM\16MYR2.SGM 16MYR2 30436 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations human health and the environment by minimizing— (1) The depletion of ozone in the upper atmosphere; and (2) The potential use, release, or emission of high global warming potential hydrofluorocarbons. ■ 12. Add new section 23.803 to read as follows: 23.803 Procedures. In preparing specifications and purchase descriptions, and in the acquisition of products and services, agencies shall— (a) Comply with the requirements of title VI of the Clean Air Act, section 706 of division D, title VII of Public Law 111–8, Executive Order 13693, and 40 CFR 82.84(a)(2), (3), (4), and (5); (b) 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); (c) 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 Significant New Alternatives Policy (SNAP) program has identified other acceptable alternatives that have lower global warming potential; and (d) Refer to EPA’s SNAP program for the list of alternatives, found at 40 CFR part 82, subpart G, as well as supplemental tables of alternatives (available at http://www.epa.gov/snap). ■ 13. Revise section 23.804 to read as follows: asabaliauskas on DSK3SPTVN1PROD with RULES 23.804 Contract clauses. 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: (a) 52.223–11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons, in solicitations and contracts for— (1) Refrigeration equipment (in product or service code (PSC) 4110); (2) Air conditioning equipment (PSC 4120); (3) Clean agent fire suppression systems/equipment (e.g., installed room flooding systems, portable fire extinguishers, aircraft/tactical vehicle VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 fire/explosion suppression systems) (in PSC 4210); (4) Bulk refrigerants and fire suppressants (in PSC 6830); (5) Solvents, dusters, freezing compounds, mold release agents, and any other miscellaneous chemical specialty that may contain ozonedepleting substances or high global warming potential hydrofluorocarbons (in PSC 6850); (6) 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); (7) Fluorocarbon lubricants (primarily aerosols) (in PSC 9150); and (8) Any other manufactured end products that may contain or be manufactured with ozone-depleting substances. (b) 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— (1) Refrigeration equipment, such as refrigerators, chillers, or freezers; or (2) Air conditioners, including air conditioning systems in motor vehicles. (c) 52.223–20, Aerosols, in solicitations and contracts— (1) For products that may contain high global warming potential hydrofluorocarbons as a propellant, or as a solvent; or (2) That involve maintenance or repair of electronic or mechanical devices. (d) 52.223–21, Foams, in solicitations and contracts for— (1) 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 (2) Construction of buildings or facilities. PART 25—FOREIGN ACQUISITION 25.1101 [Amended] 14. Amend section 25.1101 by removing from paragraph (f) ‘‘, as defined in the provision at 52.225–18’’. ■ PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES ■ ■ ■ 15. Amend section 52.212–5 by— a. Revising the date of the clause; and b. In paragraph (b)— PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 i. Redesignating paragraphs (b)(36) through (54) as paragraphs (b)(38) through (56), respectively; ■ ii. Adding new paragraphs (b)(36) and (37); ■ iii. Further redesignating newly redesignated paragraphs (b)(43) through (56) as paragraphs (b)(45) through (58), respectively; and ■ iv. Adding new paragraphs (b)(43) and (44). The revision and additions reads 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 (June, 2016) * * * * * (b) * * * ____(36) 52.223–11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (June, 2016) (E.O. 13693). ____(37) 52.223–12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 13693). * * * * * ____(43) 52.223–20, Aerosols (June, 2016) (E.O. 13693). ____(44) 52.223–21, Foams (June, 2016) (E.O. 13693). * * * * * 16. Amend section 52.213–4 by— a. Revising the date of the clause; and b. In paragraph (b)(1)— i. Redesignating paragraphs (b)(1)(xi) through (xvi) as (b)(1)(xiii) through (xviii), respectively; ■ ii. Adding new paragraphs (b)(1)(xi) and (xii); ■ iii. Further redesignating newly redesignated paragraphs (b)(1)(xiv) through (xviii) as paragraphs (b)(1)(xvi) through (xx), respectively; and ■ iv. Adding new paragraphs (b)(1)(xiv) and (xv). The revision and additions read as follows: ■ ■ ■ ■ 52.213–4 Terms and Conditions— Simplified Acquisitions (Other Than Commercial Items). * * * * * Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items) (June, 2016) * * * * * (b) * * * (1) * * * (xi) 52.223–11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (June, 2016) E:\FR\FM\16MYR2.SGM 16MYR2 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations 52.223–11 Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons. * The Contractor shall insert the name of the substance(s). (c) Reporting. For equipment and appliances that normally each contain 50 or more pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons, the Contractor shall— (1) Track on an annual basis, between October 1 and September 30, the amount in pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons contained in the equipment and appliances delivered to the Government under this contract by— (i) Type of hydrofluorocarbon (e.g., HFC– 134a, HFC–125, R–410A, R–404A, etc.); (ii) Contract number; and (iii) Equipment/appliance; (2) Report that information to the Contracting Officer for FY16 and to www.sam.gov, for FY17 and after— (i) Annually by November 30 of each year during contract performance; and (ii) At the end of contract performance. (d) The Contractor shall refer to EPA’s SNAP program (available at http:// www.epa.gov/snap) to identify alternatives. The SNAP list of alternatives is found at 40 CFR part 82, subpart G, with supplemental tables available at http://www.epa.gov/snap. (End of clause) * ■ (E.O. 13693)(applies to contracts for products as prescribed at FAR 23.804(a)). (xii) 52.223–12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 13693) (Applies to maintenance, service, repair, or disposal of refrigeration equipment and air conditioners). * * * * * (xiv) 52.223–20, Aerosols (June, 2016) (E.O. 13693) (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 (June, 2016) (E.O. 13693) (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. * * * * * 17. Amend section 52.223–11 by revising the section heading, clause heading, and clause to read as follows: ■ * * * * asabaliauskas on DSK3SPTVN1PROD with RULES Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (June, 2016) (a) Definitions. As used in this clause— 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 (http://www.epa.gov/ snap/). Hydrofluorocarbons means compounds that only contain hydrogen, fluorine, and carbon. Ozone-depleting substance means any substance the Environmental Protection Agency 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. (b) The Contractor shall label products that contain or are manufactured with ozonedepleting substances in the manner and to the extent required by 42 U.S.C. 7671j (b), (c), (d), and (e) and 40 CFR part 82, subpart E, as follows: Warning: Contains (or manufactured with, if applicable) *_______, a substance(s) which harm(s) public health and environment by destroying ozone in the upper atmosphere. VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 18. Amend section 52.223–12 by revising the section heading, clause heading, and clause to read as follows: 52.223–12 Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners. * * * * * Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (June, 2016) (a) Definitions. As used in this clause— 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 (http://www.epa.gov/ snap/). Hydrofluorocarbons means compounds that contain only hydrogen, fluorine, and carbon. (b) The Contractor shall comply with the applicable requirements of sections 608 and 609 of the Clean Air Act (42 U.S.C. 7671g and 7671h) as each or both apply to this contract. (c) Unless otherwise specified in the contract, the Contractor shall reduce the use, release, or emissions of high global warming potential hydrofluorocarbons under this contract by— (1) Transitioning over time to the use of another acceptable alternative in lieu of high PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 30437 global warming potential hydrofluorocarbons in a particular end use for which EPA’s SNAP program has identified other acceptable alternatives that have lower global warming potential. (2) Preventing and repairing refrigerant leaks through service and maintenance during contract performance; (3) Implementing recovery, recycling, and responsible disposal programs that avoid release or emissions during equipment service and as the equipment reaches the end of its useful life; and (4) Using reclaimed hydrofluorocarbons, where feasible. (d) For equipment and appliances that normally each contain 50 or more pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons, that will be maintained, serviced, repaired, or disposed under this contract, the Contractor shall— (1) Track on an annual basis, between October 1 and September 30, the amount in pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons added or taken out of equipment or appliances under this contract by— (i) Type of hydrofluorocarbon (e.g., HFC– 134a, HFC–125, R–410A, R–404A, etc.); (ii) Contract number; (iii) Equipment/appliance; and (2) Report that information to the Contracting Officer for FY16 and to www.sam.gov, for FY17 and after— (i) No later than November 30 of each year during contract performance; and (ii) At the end of contract performance. (e) The Contractor shall refer to EPA’s SNAP program to identify alternatives. The SNAP list of alternatives is found at 40 CFR part 82, subpart G, with supplemental tables available at http://www.epa.gov/snap/. (End of clause) 19. Add section 52.223–20 to read as follows: ■ 52.223–20 Aerosols. As prescribed in 23.804(c), insert the following clause: Aerosols (June, 2016) (a) Definitions. As used in this clause— 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 http://www.epa.gov/ snap/). Hydrofluorocarbons means compounds that contain only hydrogen, fluorine, and carbon. (b) Unless otherwise specified in the contract, the Contractor shall reduce its use, release, or emissions of high global warming E:\FR\FM\16MYR2.SGM 16MYR2 30438 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations potential hydrofluorocarbons, when feasible, from aerosol propellants or solvents under this contract. When determining feasibility of using a particular alternative, the Contractor shall consider environmental, technical, and economic factors such as— (1) In-use emission rates, energy efficiency; (2) Safety, such as flammability or toxicity; (3) Ability to meet technical performance requirements; and (4) Commercial availability at a reasonable cost. (c) The Contractor shall refer to EPA’s SNAP program to identify alternatives. The SNAP list of alternatives is found at 40 CFR part 82, subpart G, with supplemental tables available at http://www.epa.gov/snap/. (End of clause) 20. Add section 52.223–21 to read as follows: ■ 52.223–21 As prescribed in 23.804(d), insert the following clause: asabaliauskas on DSK3SPTVN1PROD with RULES Foams (June, 2016) (a) Definitions. As used in this clause— 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 http://www.epa.gov/ snap/. Hydrofluorocarbons means compounds that contain only hydrogen, fluorine, and carbon. (b) Unless otherwise specified in the contract, the Contractor shall reduce its use, release, and emissions of high global warming potential hydrofluorocarbons and refrigerant blends containing hydrofluorocarbons, when feasible, from foam blowing agents, under this contract. When determining feasibility of using a particular alternative, the Contractor shall consider environmental, technical, and economic factors such as— (1) In-use emission rates, energy efficiency, and safety; (2) Ability to meet performance requirements; and (3) Commercial availability at a reasonable cost. (c) The Contractor shall refer to EPA’s SNAP program to identify alternatives. The SNAP list of alternatives is found at 40 CFR part 82, subpart G, with supplemental tables available at http://www.epa.gov/snap/. (End of clause) BILLING CODE 6820–EP–P VerDate Sep<11>2014 18:51 May 13, 2016 Jkt 238001 GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 2, 4, 13, 18, and 19 [FAC 2005–88; FAR Case 2015–020; Item II; Docket No. 2015–0020; Sequence No. 1] RIN 9000–AN09 Federal Acquisition Regulation: Simplified Acquisition Threshold for Overseas Acquisitions in Support of Humanitarian or Peacekeeping Operations Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. AGENCY: Foams. [FR Doc. 2016–10998 Filed 5–13–16; 8:45 am] DEPARTMENT OF DEFENSE DoD, GSA, and NASA are issuing a final rule to amend the Federal Acquisition Regulation (FAR) to implement a section of U.S. Code which establishes a higher simplified acquisition threshold for overseas acquisitions in support of humanitarian or peacekeeping operations. DATES: Effective June 15, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Camara Francis, Procurement Analyst, at 202–550–0935, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite FAC 2005– 88, FAR Case 2015–020. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DoD, GSA, and NASA published a proposed rule in the Federal Register at 80 FR 60832 on October 8, 2015, soliciting public comments on this rule, drafted to implement 41 U.S.C. 153, which establishes a higher simplified acquisition threshold (SAT) for overseas acquisitions in support of humanitarian or peacekeeping operations. FAR Case 2003–022 was published in the Federal Register as an interim rule at 69 FR 8312, on February 23, 2004, and as a final rule published at 69 FR 76350, on December 20, 2004. Drafters of that rule had revised the definition for SAT contained at FAR 2.101: Definitions, but had also inadvertently deleted the reference to overseas humanitarian or peacekeeping missions and the requisite doubling of the SAT in those circumstances. The civilian statute at the time was numbered 41 U.S.C. 259(d)(1); it is now at 41 U.S.C. 153. The PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 purpose of this rule is to reinstate the increased SAT for overseas acquisitions for peacekeeping or humanitarian operations. Conforming changes are made in FAR parts 4, 13, 18, and 19. One public comment was received. II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comment in development of the final rule. A. Summary of Significant Changes There were no changes made to the rule as a result of the comment received. There were no comments on the Initial Regulatory Flexibility Analysis. B. Analysis of Public Comments Comment: One respondent stated that the FAR definition of simplified acquisition needed to clarify that construction is included as part of supplies or services in a contingency environment, noting that construction projects are very important to contingency operations. The respondent indicated that contracting professionals generally understand that the FAR covers two broad categories of acquisition: Supplies and services. Services include everything that is not a commodity (supplies), and is therefore inclusive of construction, which is a type of service. Response: The Councils appreciate the comment and acknowledge the broad understanding that services are inclusive of construction services. 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 not a significant regulatory action and, therefore, was not 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 DoD, GSA and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory E:\FR\FM\16MYR2.SGM 16MYR2

Agencies

[Federal Register Volume 81, Number 94 (Monday, May 16, 2016)]
[Rules and Regulations]
[Pages 30429-30438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10998]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 2, 7, 11, 23, 25, and 52

[FAC 2005-88; FAR Case 2014-026; Item I; Docket No. 2014-0026; Sequence 
1]
RIN 9000-AM87


Federal Acquisition Regulation: High Global Warming Potential 
Hydrofluorocarbons

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement Executive branch 
policy in the President's Climate Action Plan to procure, when 
feasible, alternatives to high global warming potential (GWP) 
hydrofluorocarbons (HFCs). This final rule will allow agencies to 
better meet the greenhouse gas emission reduction goals and reporting 
requirements of the Executive Order on Planning for Sustainability in 
the Next Decade.

DATES: Effective: June 15, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Gray, Procurement Analyst, 
at 703-795-6328, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-88, FAR Case 
2014-026.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a proposed rule at 80 FR 26883, on May 
11, 2015, to implement Executive branch policy in the President's 
Climate Action Plan to procure, when feasible, alternatives to high GWP 
HFCs. This final rule will allow agencies to better meet the greenhouse 
gas emission reduction goals and reporting requirements of the 
Executive Order 13693, Planning for Federal Sustainability in the Next 
Decade, of March 25, 2015.
    Sixteen respondents submitted comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. A discussion of the comments and the 
changes made to the rule as a result of those comments are provided as 
follows:
A. Summary of Significant Changes From the Proposed Rule
    In response to public comments received, the final rule contains 
the following changes from the proposed rule:
     Clarified the definition of ``high global warming 
potential hydrofluorocarbons'' to make it specific to a particular end 
use.
     Included the use of reclaimed HFCs as products that 
minimize or eliminate the use, release, or emission of high GWP HFCs.
     Clarified that the clause prescription exception is for 
supplies that will be delivered outside the United States and its 
outlying areas as well as for contracts for services performed outside 
the United States and its outlying areas.
     Added in the clauses at 52.223-20 and 52.223-21 
environmental, technical, and economic factors to consider when 
determining feasibility.
B. Analysis of Public Comments
1. General
a. Support the Objectives of the Rule
    Comments: Many of the respondents expressed specific support for 
the objectives of the rule. Several respondents applauded DoD, GSA, and 
NASA in proposing that Federal agencies procure, when feasible, 
alternatives to high-GWP HFC refrigerants. Other respondents stated 
that the proposed rule is a step in the right direction and could have 
considerable impact on reducing the Government's greenhouse gas 
emissions and helping Federal agencies and departments meet several 
Executive actions and orders pertaining to HFCs.
    Response: Noted.
b. Oppose the Objectives of the Rule
    Comment: One respondent believed that global warming is a farce and 
that the Government should not be allowed to acquire anything because 
of global warming.
    Response: The FAR Council is responsible for the implementation of 
the Executive orders and policies of the Administration. DoD, NASA, and 
GSA have prepared this rule to implement and facilitate compliance with 
Executive Order 13693, Planning for Sustainability in the Next Decade, 
and the President's Climate Action Plan.
2. Definition of ``high global warming potential hydrofluorocarbons''
    Various respondents commented on the definition of ``high global 
warming potential hydrofluorocarbons.'' One of these respondents 
questioned whether the identification of a lower GWP HFC alternative 
pursuant to the SNAP program meant that the Government would be 
required to use the alternative.
    Response: The Councils have further clarified in the final rule 
that the term ``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

[[Page 30430]]

is found at 40 CFR part 82, subpart G, with supplemental tables of 
alternatives available at http://www.epa.gov/snap. For every end use, 
the SNAP program lists include several different alternatives as 
acceptable for the same end use or application and provides 
information, including the GWPs of alternatives. The decision as to 
which of the SNAP-listed acceptable alternatives to select in a 
particular end use should emphasize the alternative with the lowest GWP 
that meets the needs of the user.
    With regard to the required use of a lower GWP HFC product 
identified in the SNAP list of alternatives products, the Government's 
decision to do so must take into consideration the feasibility of 
moving on to an alternative. This decision will require the assessment 
of a number of factors, including lifecycle costs and the overall 
energy efficiency achieved through the substitution of a lower GWP HFC 
product.
    Comment: One respondent criticized the SNAP program, upon which the 
proposed definition is based. Among other concerns, the respondent 
believes that the SNAP program has identified some substitutes that 
have significant drawbacks, including poor thermal efficiency, 
flammability issues, processing difficulties, and limited global 
availability. Similarly, another respondent did not agree that the 
definition of high GWP HFCs should be created by simple reference to 
the SNAP program, because other relevant factors need to be considered 
(see also section 3.d.). Another respondent commented that the term 
``high global warming potential hydrofluorocarbons'' was defined solely 
in term of relative GWP (compared to alternatives approved under the 
EPA's SNAP program.) The respondent is concerned that the policies 
based on this definition fail to take into account other major causes 
of climate impact.
    Response: In response to the concern raised by one respondent 
regarding significant drawbacks of some substitutes identified by SNAP, 
it is helpful to understand the SNAP program's framework for review and 
listings. EPA applies seven specific criteria for determining whether a 
substitute is acceptable or unacceptable. These criteria, which can be 
found at 40 CFR 82.180(a)(7), include atmospheric effects and related 
health and environmental effects, ecosystem risks, consumer risks, 
flammability, and cost and availability of the substitute. To enable 
EPA to assess these criteria, EPA requires submitters to include 
various information including ozone depletion potential (ODP), GWP, 
toxicity, flammability, and the potential for human exposure. The SNAP 
program does not review for a substitute's performance or efficacy. The 
SNAP list of alternatives evolves as new substitutes become available 
and substitutes that pose significantly greater risk than other 
available substitutes are determined to no longer be acceptable for 
use. These changes occur because of the changing availability of 
substitutes for a specific use as well as EPA's overall understanding 
of the environmental and human health impacts of substitutes already 
listed as compared with new substitutes. However, as changes are made 
to the SNAP lists, EPA assures users that multiple substitutes are 
available for any given end use and that end users continue to have 
options.
    In its recent final rule, published at 80 FR 42869, on July 20, 
2015, EPA modified the listings for certain HFCs and HFC blends in 
various end uses in the aerosols, foam blowing, and refrigeration and 
air conditioning sectors where other alternatives were available or 
potentially available that posed lower overall risk to human health and 
the environment. Pursuant to the guiding principles of the SNAP 
program, the action did not specify that any HFCs are unacceptable 
across all sectors and end uses. Consistent with section 612 of the 
Clean Air Act (42 U.S.C. 7671k) as EPA has historically interpreted it 
under the SNAP program, EPA made the modifications based on evaluation 
of the substitutes addressed in that action using the SNAP criteria for 
evaluation and considering the current suite of other available and 
potentially available substitutes.
    For the refrigerant and foam blowing agent end uses, equipment 
design is critical. Thus, there is a range of thermal conductivity and 
insulation values among the acceptable alternatives, with some having 
lower values than the HFCs previously used (as well as ozone-depleting 
substances (ODS)) some having higher values, and others having 
comparable values. In EPA's recent rulemaking published at 80 FR 42869, 
on July 20, 2015, EPA noted that no information provided to EPA 
suggests that the alternatives that remain acceptable result in lower 
energy efficiency. In fact, as stated in the preamble to the rule, 
available information indicates that the opposite can be true, that the 
acceptable alternatives not subject to a status change have been used 
in equipment or used to produce insulating foam that provide for better 
energy efficiency.
    In response to the respondent who disagreed that the definition of 
high GWP HFCs should refer just to the SNAP program, the Councils note 
that the definition does not bind the end user to select any specific 
alternative or to ignore assessment of the unique needs that end user 
may be facing. Rather, requiring activities can use the information 
provided by the SNAP list of alternatives, including information on the 
GWP of alternatives, in addition to other factors, in the selection of 
products and equipment that best meet their needs. Please see related 
response below regarding comments on the feasibility of moving to 
alternatives.
    In response to the respondent who commented that the term ``high 
global warming potential hydrofluorocarbons'' was defined solely in 
terms of relative GWP (compared to other alternatives approved under 
the EPA's SNAP program) and was concerned that this failed to take into 
account other major causes of climate impact, the term is intended to 
reflect differences in GWP. This is consistent with how climate impacts 
are considered under the SNAP program (See section VII.A.3., GWP 
Considerations, in the preamble to the recent EPA SNAP final rule 
published at 80 FR 42870 at 42937, on July 20, 2015). Users may take 
into account additional factors, such as energy efficiency, in deciding 
which of the lower-GWP alternatives listed as acceptable under SNAP 
meet their needs. For clarification, please also see the response below 
that discusses other factors such as energy efficiency, which are 
related to the performance of the equipment, whereas GWP relates to the 
intrinsic characteristic and potential environmental impact of the 
chemical itself.
3. Policy.
a. Lower vs. lowest/climate-friendly
    Comment: One respondent, primarily addressing refrigerants, 
recommended addition of the following definitions to the rule:
    ``Climate-friendly'' alternative means an alternative that is 
listed as acceptable under the EPA's SNAP program (40 CFR part 82, 
subpart G) that has a GWP of less than 150.
    ``Lowest GWP alternative'' means an alternative that is identified 
as acceptable under the EPA's SNAP program and has the lowest GWP 
compared to all other acceptable alternatives for the relevant end use 
and has a GWP under 150 for new equipment and a GWP at least 50 percent 
lower than the current refrigerant for retrofits.

[[Page 30431]]

    The respondent further recommended a policy that would avoid 
procurement of mid-range GWP alternatives (from 300 to 1500 GWP) if 
truly low GWP alternatives have been proven and commercialized, because 
use of mid-range alternatives would set up a circumstance where a 
future phase-out in just a few years will be necessary to remove these 
mid-range GWP alternatives due to their impact on the climate. 
Consistent with the definition recommended by the respondent, the 
respondent also recommended that the Government should not purchase any 
new equipment or product unless it has a refrigerant with a GWP of less 
than 150 and for retrofits, higher GWP refrigerants can be used if they 
have GWPs of at least 50 percent less than the current refrigerant that 
will be replaced. Otherwise, the respondent recommended that the old 
system should be decommissioned and replaced.
    Response: While GWP is an important criterion, it should not be the 
sole criterion for consideration. The EPA SNAP program conducts 
comparative risk analyses for each end use and alternative, and has not 
set specific GWP limits for acceptable alternatives in a specific end 
use. For example, while an alternative refrigerant in one application 
might have a GWP that meets the respondent's proposed GWP limit of 150, 
there may be other human health or environmental considerations for the 
particular end use or application (e.g., toxicity limits, flammability) 
that may lead the user to determine that another alternative is more 
suitable for that particular application. For this reason and others, 
Federal agency requiring activities and contractors need the 
flexibility to be able to evaluate the entire suite of lower GWP 
alternatives and to balance direct climate impacts, energy efficiency, 
safety, performance, and other user needs before selecting the one most 
appropriate for their specific use.
b. Timing
    Various respondents commented on the timing of when the FAR rule 
should take effect.
    Comment: Several respondents recommended that the enactment of this 
rule should be tied to the HFC conversion timelines within the EPA SNAP 
rule published at 80 FR 42870, on July 20, 2015, and that this rule is 
imposing use of lower GWP alternatives ``earlier than required.'' 
Unless otherwise noted, all references to a SNAP rule in this document 
are in reference to the final rule published at 80 FR 42870, on July 
20, 2015. According to one of the respondents, the SNAP final rule 
specified that use of HFC-134a would be unacceptable for use in 
polystyrene extruded boardstock and billet as of January 1, 2021.
    Response: It is not the intent of this rule to require conversion 
to alternatives on earlier timelines than in the SNAP final rule. 
Rather, as stated in the background section of the proposed FAR rule, 
the purpose of this final rule is to facilitate the purchase of cleaner 
alternatives to HFCs whenever feasible and transition over time to 
equipment that uses safer and more sustainable alternatives.
    Comment: A respondent also recommended coordinating with Department 
of Energy rulemaking on energy efficiency and conservation standards. 
Companies are working to comply with these stringent new standards.
    Response: The Councils are aware of the Department of Energy (DOE) 
rulemaking titled, ``Energy Efficiency Standards for New Federal 
Commercial and Multi-Family High-Rise Residential Buildings' Baseline 
Standards Update'', published at 80 FR 68749, on November 6, 2015, and 
have taken the DOE rules into account in drafting this final rule. The 
rule requires reduction in the use, release, and emissions of high GWP 
HFCs only when feasible. The clauses state that a determination of 
feasibility would include consideration of energy efficiency.
    Comment: One respondent noted that there is a great range of speeds 
by which the sectors, and the companies within them, who use HFCs, can 
transition into lower GWP alternatives. Another respondent stated that 
a transition to low GWP blowing agents must be conducted over a 
timeline that allows individual manufacturers to identify suitable 
alternatives and conduct necessary product development and testing to 
fully commercialize new formulations. Another respondent recommended 
modifying the clause at FAR 52.223-12(c)(1) to require transitioning 
``at the earliest feasible time'' from high GWP HFCs to acceptable 
alternatives.
    Response: The President's Climate Action Plan specifically directs 
agencies to purchase cleaner alternatives to HFCs whenever feasible and 
transition over time to equipment that uses safer and more sustainable 
alternatives. The language used in the Climate Action Plan: (1) 
Recognizes that there are technical hurdles that must be overcome to 
identify suitable alternatives, conduct necessary product development 
and testing, and fully commercialize new formulations; and (2) 
envisions a transition ``over time.'' Accordingly, this final rule 
allows existing Government equipment to be utilized until the end of 
its useful life, thus minimizing stranded capital.
c. Acceptability and Feasibility
    Comments: More than half of the respondents commented on the need 
to consider factors other than low GWP value in determining the 
acceptability and/or feasibility of using a lower GWP alternative. 
According to many respondents, lower GWP alternatives must be both 
environmentally and economically acceptable. One respondent stated that 
considering only the GWP of a compound may not be appropriate, 
depending on the circumstances of a particular use. This respondent 
also stated that GWP alone is an insufficient measure of a product's 
impact on human health and the environment. A few respondents stated 
the need for a definition of ``feasible.'' They noted that without a 
definition, contractors will have little guidance as to when adoption 
of low GWP substances would be appropriate and/or required and the rule 
will have little impact on procurement decisions.
i. Life Cycle/Energy Efficiency
    Many of the respondents recommended consideration of the total 
life-cycle of an alternative product, such as in-use emission rates and 
energy efficiency benefits.
     With regard to refrigerants, a respondent commented that 
the majority of the climate impact from refrigerant used results from 
the energy consumed by the air conditioning system (i.e., the indirect 
impact) and not from the GWP of the refrigerant itself (i.e., the 
direct climate impact). According to the respondent, refrigerant 
selection has a substantial impact on the energy efficiency of the air 
conditioning system in which the refrigerant will be used.
     With regard to foam insulation, a respondent commented on 
the importance of the use of thermal insulation for increased energy 
efficiency to reduce global warming. Likewise, another respondent 
pointed out the need to consider the life-cycle benefits of products, 
because if less energy efficient insulation products are used in the 
construction of a building the result may be increased greenhouse gas 
emissions over the life of the building or facility.
ii. Safety--Flammability
    Several respondents commented on the need to consider key product 
attributes that affect safety, such as

[[Page 30432]]

flammability. Another respondent mentioned that feasible alternatives 
should consider standards and codes compliance (such as safety 
standards).
iii. Technical Capability
    Several respondents commented on the necessity to consider 
technical capability of the proposed alternative to avoid inadvertently 
selecting a product that will prove to be less energy efficient.
iv. Commercial Availability
    Several respondents commented on the need for alternatives to be 
commercially available. One respondent recommended that absence of 
commercially available alternatives should constitute a viable 
exemption from the provisions of the rule. One respondent recommended 
that decisions on feasibility of low GWP alternatives need to be 
assessed based on available technologies.
v. Cost
    Several respondents mentioned cost as another factor for 
consideration. One respondent asked whether the taxpayer should be 
forced to pay more than the general public, by adopting lower GWP 
products earlier than required.
vi. Definition
    One of the respondents recommended defining ``feasibility'' as ``a 
commercially available alternative with a GWP lower than that of the 
currently used substance in the relevant application, that (1) is 
identified by EPA as an acceptable alternative under 40 CFR part 82, 
which increases the total cost of the installation or bid by not more 
than 10 percent more than would be the cost if high GWP substances were 
used.''
    Response: The concerns raised by the respondents in paragraphs 
3.c.i. through vi. of this analysis of the public comments are issues 
considered by EPA in making listing decisions under the SNAP program. 
Section 612 of the Clean Air Act provides that EPA must prohibit the 
use of a substitute where EPA has determined that there are other 
available substitutes that pose less overall risk to human health and 
the environment for that use. EPA reviews substitutes using a 
comparative risk framework and GWP is only one of several criteria EPA 
considers in its overall evaluation. EPA also considers factors such as 
ozone depletion potential, exposure assessments, flammability, 
toxicity, and other environmental impacts. In addition, in the recent 
change of status rule in which EPA changed the status of a number of 
high GWP substitutes from acceptable to unacceptable, EPA considered 
the technical challenges of a transition and the supply of other 
alternatives in establishing the transition date. As the term is used 
in this rule, ``feasible'' means not only capable of being 
accomplished, but capable of being accomplished successfully and 
suitably. All of the factors mentioned by respondents are relevant in 
the decision as to which acceptable alternative is preferable in a 
given application. Alternatives that have been determined acceptable by 
EPA under the SNAP Program should still be evaluated in each particular 
application in terms of environmental, technical, and economic 
feasibility. The FAR Council does not have a basis (such as statute or 
Executive Order) upon which to establish a specific cost differential 
that would constitute an unreasonable cost. An assessment of whether a 
cost is unreasonable depends partly on the benefits to be derived from 
use of the alternative and other economic factors. Therefore, the final 
rule does not define the term ``feasibility,'' but provides direction 
to the Federal user and contractor in terms of factors to be considered 
when determining the feasibility of using an acceptable lower GWP 
alternative (FAR 52.223-20, Aerosols, and 52.223-21, Foams).
d. Refrigerant Management
    Comment: Many of the respondents commented on the need for better 
refrigerant management, including the recovery, reclamation, and reuse 
of refrigerant.
     Leaks and accidental or intentional venting of 
refrigerant. As stated by one respondent, refrigeration and air 
conditioning systems are prone to leaks during normal operations. Even 
with aggressive leak detection, these appliances and systems require 
servicing to maintain the proper refrigerant change and performance. 
Another respondent emphasized that air conditioning and refrigeration 
systems are actually non-emissive uses of HFCs since these are closed 
systems. The concern with HFCs, therefore, is not the use, but the 
misuse. According to the respondent, the vast amount of HFC emissions 
result from leaks and accidental or intentional venting of refrigerant.
     Increase the use of reclaimed refrigerants. According to 
one respondent, nearly all lost refrigerant is replaced with newly 
produced virgin refrigerant. Another respondent recommended that the 
benefits of the proposed rule could be significantly enhanced by 
defining acceptable low GWP alternatives to include reclaimed 
refrigerants. Rather than wait for low GWP alternatives to be deployed 
in retrofitted or newly installed equipment, the Federal Government can 
significantly reduce greenhouse gas emissions in the near-term by 
including reclaimed HFC refrigerant as part of the procurement 
priorities. Another respondent recommended that the Government should 
give preference to the use of reclaimed refrigerant to service existing 
Federal buildings and facilities, just like the Federal Government 
promotes recycled paper and other consumer goods.
     Improved refrigerant management. As stated by a 
respondent, a Federal program promoting reclaimed refrigerant will 
encourage better refrigerant management practices in the private 
sector, because companies will recognize that their used refrigerant 
has an economic value. Another respondent noted that the policy would 
provide incentive for recovery of HFC refrigerant from older end-of-
life equipment (currently only approximately 10 percent is recovered 
and reclaimed).
     Less production of virgin HFC refrigerants. One respondent 
stated that the goal should be to limit production of all virgin 
refrigerants, including lower GWP HFCs. As stated by another 
respondent, use of reclaimed refrigerant displaces additional 
production of new HFC refrigerant, thereby preventing greenhouse gas 
emissions that would otherwise occur.
    Response: The Councils recognize that refrigerant management is an 
important way to reduce climate-damaging and ozone-depleting emissions 
from equipment used for air-conditioning and refrigeration. While the 
existing EPA regulations prohibit any person from knowingly venting, 
releasing, or disposing into the environment any ozone-depleting or HFC 
refrigerant in the course of maintaining, servicing, repairing, or 
disposing of air-conditioning or refrigeration appliances, they do not 
establish requirements to repair leaks or specify other servicing 
requirements for equipment containing HFCs. EPA has recently proposed 
updating the existing refrigerant management requirements under section 
608 of the Clean Air Act and extending them to cover servicing 
practices for HFCs (see 80 FR 69457, dated November 9, 2015).
    There are also environmental benefits to promoting the use of 
reclaimed material over virgin production. Both newly-produced and 
reclaimed refrigerants must meet the same purity requirements and thus 
reclaimed refrigerant can be used instead of newly produced 
refrigerants. This final rule

[[Page 30433]]

provides use of reclaimed HFCs as an example of sustainable acquisition 
under FAR 11.002(d)(1) and encourages their use at FAR clause 52.223-
12(c)(4).
4. Exceptions
a. Outside the United States
    Various respondents commented on the exception in the proposed rule 
for contracts that will be performed outside the United States and its 
outlying areas.
    Comment: One respondent requested clarification of what ``performed 
outside the United States and its outlying areas'' means for the 
acquisition of supplies. Another respondent stated that the rule should 
apply to both domestic and foreign procurement decisions, because 
limiting the scope to domestic acquisitions misses an opportunity to 
further reduce greenhouse gas emissions. Other respondents stated that 
an effective means of reducing the future climate change contribution 
of HFCs must be global in nature. One respondent recommended that that 
application to contracts outside to United States and its outlying 
areas should be excepted only if proven to be unfeasible.
    Response: The clause prescription at FAR 23.804 has been clarified 
by specifying that the exception to use of the clause is for contracts 
for supplies to be delivered outside the United States and its outlying 
areas, or contracts for services to be performed outside the United 
States and its outlying areas. This rule only applies to contracts for 
supplies to be delivered within the United States or its outlying areas 
or to services to be performed within the United States or its outlying 
areas.
b. Military and Space Activities
    Comment: One respondent asked whether DoD, GSA, and NASA would be 
prohibited from taking advantage of the SNAP exemptions provided for 
military and space activities.
    Response: Nothing in this rule precludes Federal agencies from 
taking advantage of the exemptions to the SNAP requirements, as 
currently provided in the SNAP final rule for military and space- and 
aeronautics-related applications. However, this rule, unlike the SNAP 
Program, requires transitioning in advance of the SNAP deadlines, only 
when feasible. Therefore, an exception for military and space 
activities is unnecessary. In accordance with the overall construction 
of the rule, exemptions for military and space activities would fall 
under the general exemption as infeasible.
    In addition, the FAR clauses state that a contractor shall 
transition to lower GWP alternatives ``unless otherwise specified in 
the contract.'' In those cases where a Federal agency has critical uses 
where only qualified high GWP HFCs may be used, these would be 
specified in a contract and unqualified lower GWP alternatives would 
not be allowed.
c. Low Temperature Refrigeration Systems
    Comment: One respondent recommended an exemption for low 
temperature refrigeration systems operating below -50 [deg]C. The 
respondent stated that in both the EU and Canada, similar low GWP 
initiatives have allowed such an exemption. According to the 
respondent, due to issues of flammability, energy efficiency, and 
technical capability, the respondent does not know of any low GWP 
solutions that meet the needs of ultra-low temperature refrigeration 
systems.
    Response: There is no need for a special exemption for a low 
temperature refrigeration system. The concept of feasibility is 
addressed and an exemption arises if use of lower GWP alternatives is 
found to be infeasible. If low GWP alternatives do not meet the needs 
of ultra-low temperature refrigeration systems, then transition is not 
feasible and, therefore, not required by this rule.
5. Other
a. Labeling
    Comment: One respondent recommended that contractors should also be 
required to label products which contain or are manufactured with HFCs.
    Response: The labeling requirement for products that contain or are 
manufactured with Ozone-Depleting Substances (ODS) at paragraph (b) of 
FAR clause 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons, is required by statute (42 U.S.C. 
7671j) and EPA regulations (40 CFR part 82, subpart E). There is not a 
comparable requirement for high GWP HFCs.
b. Buildings With Multiple Systems
    Comment: With regard to the reporting requirement in FAR 52.223-
12(d), the respondent recommended changing ``50 or more pounds'' to 
``25 or more pounds'' and that a building containing multiple systems 
that each contain individually less than 25 pounds of HFCs or 
refrigerant blends containing HFCs should be assessed as the entire 
building's refrigerant use and not on an individual system level.
    Response: When drafting the proposed rule, the 50-pound threshold 
was chosen in order to eliminate tracking and reporting on thousands of 
pieces of smaller equipment, thereby minimizing administrative burden 
and costs to contractors, including many small businesses; and also 
recognizing that larger systems such as building chillers, commissary/
large commercial refrigeration systems, and industrial process 
refrigeration systems likely contribute the largest percentage of total 
HFC emissions. This 50-pound threshold is also consistent with other 
existing regulatory requirements for refrigerants imposed under the 
Clean Air Act and 40 CFR part 82. Recognizing that EPA has proposed 
(see 80 FR 69457, dated November 9, 2015) updating and expanding the 
coverage of the refrigerant management requirements established under 
section 608 of the Clean Air Act, if those requirements are amended, 
they would be applicable to the public and private sectors.
c. Foreign Acquisition
    Comment: One respondent recommended that the rule should clarify 
that if certain products identified as acceptable under the EPA SNAP 
program are available in other markets but not available or not 
available at commercial levels in the U.S., then the products may be 
acquired under the nonavailability exception to the Buy American 
statute (see FAR 25.103).
    Response: FAR part 25, Foreign Acquisition, addresses domestic 
source restrictions, including the Buy American Act. However, not all 
acquisitions are subject to the Buy American Act (e.g., when the 
acquisition is covered by the World Trade Organization Government 
Procurement Agreement). Other domestic source restrictions may also 
apply, and there are sanctions against purchases from certain 
countries. FAR part 23 must be read in conjunction with FAR part 25.
d. Ozone-Depleting Substances
    Comment: One respondent is concerned that the proposed clause at 
FAR 52.223-12, Maintenance, Service, Repair, Recycling, or Disposal of 
Refrigeration Equipment and Air Conditioners, does not include ODS 
within its scope.
    Response: This rule is not intended to suggest that users revert to 
an ODS in lieu of a high-GWP HFC. The language in the rule leaves the 
current ODS regulatory language, currently at FAR subpart 23.8, in 
place and only adds language dealing with high GWP HFCs. The definition 
of ``ozone-depleting substance'' as any substance designated by the EPA 
in 40 CFR part 82 also

[[Page 30434]]

remains in FAR part 2. The language also maintains the current FAR 
23.803(a)(2) preference to the procurement of substances that reduce 
overall risks to human health and the environment by the depletion of 
ozone in the upper atmosphere.
e. Specific Refrigerants, Foams, and Aerosols
    Comments: Several respondents commented on specific refrigerants, 
foams, or aerosols and lower GWP alternatives.
     One respondent sent information on a low GWP substitute 
for HFC-134a.
     One respondent included a list of some examples of 
available low GWP replacements for high GWP HFCs by application (i.e., 
refrigerants, foam, and aerosols).
     Another respondent was concerned that the rule does not 
require an alternative to the most commonly used refrigerant, HCFC-22, 
which is both an ODS and has a high GWP, because it is determined to be 
acceptable by EPA under SNAP.
    Response: The information on the low GWP alternatives is noted. 
While the revised FAR subpart 23.8 makes no explicit mention of HCFC-
22, or any other specific substance, the regulation refers to EPA's 
SNAP program for the list of acceptable alternatives. HCFC-22 remains 
acceptable as a refrigerant under SNAP. However, existing regulations 
effectively prohibit the use of virgin HCFC-22 to manufacture a new 
appliance or retrofit an existing appliance (see 40 CFR 82.15(g)(2)). 
This restriction does not affect the use of used, recovered, and 
recycled HCFC-22. Regulations also effectively prohibit the manufacture 
or import of appliances and appliance components that are pre-charged 
with HCFC-22 (see 40 CFR 82.304).
    Comment: One respondent recommended an additional clause to address 
clean agent fire suppression.
    Response: The suggested clause is outside the scope of this case 
and could not be included in the final rule without publishing for 
public comment.

III. Applicability

    This rule will apply to all acquisitions inside the United States 
and its outlying areas of products or services containing or using high 
GWP HFCs, including--
     Acquisitions that do not exceed the simplified acquisition 
threshold; and
     Commercial items (including commercially available off-
the-shelf items) that use FAR part 12 procedures.
    A majority of the acquisitions involving high GWP HFCs do not 
exceed the simplified acquisition threshold. Applicability of the 
requirements below the simplified acquisition threshold is necessary to 
be effective and to cover a significant number of actions and dollars 
that fall below this threshold. However, the reporting requirement 
applies only for delivery of, or maintenance, service, repair and 
disposal of, equipment or appliances normally containing 50 pounds or 
more of HFCs or refrigerant blends containing HFCs.
    Likewise, a majority of the acquisitions involving high GWP HFCs 
involve the acquisition of commercial items. Applicability of the 
requirements to commercial items is necessary to be effective and 
include a significant number of actions and dollars for commercial item 
acquisitions.

IV. 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.

V. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    This rule is necessary to implement Executive branch policy 
stated in the President's Climate Action Plan. The objective of this 
rule is to require Federal agencies to procure climate-friendly 
chemical alternatives to high global warming potential (GWP) 
hydrofluorocarbons (HFCs) and allow agencies to better meet the 
greenhouse gas emission reduction goals and reporting requirements 
of Executive Order 13693, Planning for Sustainability in the Next 
Decade.
    There were no issues raised by the public comments in response 
to the initial regulatory flexibility analysis.
    Based on FPDS data for Fiscal Year 2015, this rule will apply to 
approximately 1400 small business contractors that provide certain 
supplies (including equipment and appliances) that contain HFCs to 
the Federal Government and about 347 small business contractors that 
provide maintenance, service, repair, or disposal of refrigeration 
equipment or air conditioners. In addition, although the clauses at 
52.223-20, Aerosols, and 52.223-21, Foams, do not contain any 
reporting requirements, these clauses also apply respectively to 
solicitations and contracts that involve repair or maintenance of 
electronic or mechanical devices and construction of buildings and 
facilities.
    DoD, GSA, and NASA estimate an average reporting burden of about 
8 hours per year for each small business providing supplies that 
contain high GWP HFCs or maintenance, repair, or disposal of 
refrigeration equipment or air conditioners.
    DoD, GSA, and NASA did not identify any significant alternatives 
to the rule that would accomplish the stated objectives of the 
President's Climate Action Plan and the Executive Order.
    It is necessary for the rule to apply to small entities, because 
about three-quarters of the affected contractors are small 
businesses and excluding them would minimize the importance of this 
policy and may prevent the Government from meeting the objective of 
this policy. Every effort has been made to minimize the burdens 
imposed. For example, this rule only requires tracking and reporting 
on equipment that normally contain 50 or more pounds of HFCs. In 
addition, this rule does not impose a labeling requirement for 
products that contain or are manufactured with HFCs, unlike the 
labeling requirement that is required by statute for ozone-depleting 
substances.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The 
rule contains information collection requirements. OMB has cleared this 
information collection requirement under OMB Control Number 9000-0191, 
titled: ``High Global Warming Potential Hydrofluorocarbons.''

List of Subjects in 48 CFR Parts 1, 2, 7, 11, 23, 25, and 52

    Government procurement.

    Dated: May 5, 2016.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.
    Therefore, DoD, GSA and NASA amend 48 CFR parts 1, 2, 7, 11, 23, 
25, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 2, 7, 11, 23, 25, and 52 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

[[Page 30435]]

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

0
2. Amend section 1.106 by adding to the table, in numerical order, FAR 
segments ``52.223-11'' and ``52.223-12'' with their corresponding OMB 
control number ``9000-0191''.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
3. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical 
order, the definitions ``Global warming potential'', ``High global 
warming potential hydrofluorocarbons'', ``Hydrofluorocarbons'', 
``Manufactured end product'', and ``Products'' to read as follows:


2.101   Definitions.

* * * * *
    (b) * * *
    (2) * * *
    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 http://www.epa.gov/snap/).
* * * * *
    Hydrofluorocarbons means compounds that contain only hydrogen, 
fluorine, and carbon.
* * * * *
    Manufactured end product means any end product in product and 
service codes (PSC) 1000-9999, except--
    (1) PSC 5510, Lumber and Related Basic Wood Materials;
    (2) Product or service group (PSG) 87, Agricultural Supplies;
    (3) PSG 88, Live Animals;
    (4) PSG 89, Subsistence;
    (5) PSC 9410, Crude Grades of Plant Materials;
    (6) PSC 9430, Miscellaneous Crude Animal Products, Inedible;
    (7) PSC 9440, Miscellaneous Crude Agricultural and Forestry 
Products;
    (8) PSC 9610, Ores;
    (9) PSC 9620, Minerals, Natural and Synthetic; and
    (10) PSC 9630, Additive Metal Materials.
* * * * *
    Products has the same meaning as supplies.
* * * * *

PART 7--ACQUISITION PLANNING

0
4. Amend section 7.103 by revising paragraph (p)(2) to read as follows:


7.103  Agency-head responsibilities.

* * * * *
    (p) * * *
    (2) Comply with the policy in 11.002(d) regarding procurement of 
biobased products, products containing recovered materials, 
environmentally preferable products and services (including Electronic 
Product Environmental Assessment Tool (EPEAT[supreg])-registered 
electronic products, nontoxic or low-toxic alternatives), ENERGY 
STAR[supreg] and Federal Energy Management Program-designated products, 
renewable energy, water-efficient products, non-ozone-depleting 
products, and products and services that minimize or eliminate, when 
feasible, the use, release, or emission of high global warming 
potential hydrofluorocarbons, such as by using reclaimed instead of 
virgin hydrofluorocarbons;
* * * * *

PART 11--DESCRIBING AGENCY NEEDS

0
5. Amend section 11.002 by revising paragraph (d)(1)(vi) to read as 
follows:


11.002  Policy.

* * * * *
    (d)(1) * * *
    (vi) Non-ozone-depleting substances, and products and services that 
minimize or eliminate, when feasible, the use, release, or emission of 
high global warming potential hydrofluorocarbons, such as by using 
reclaimed instead of virgin hydrofluorocarbons (subpart 23.8).
* * * * *

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

0
6. Amend section 23.000 by revising paragraph (d) to read as follows:


23.000  Scope.

* * * * *
    (d) Acquiring energy-efficient and water-efficient products and 
services, environmentally preferable (including EPEAT[supreg]-
registered, and non-toxic and less toxic) products, products containing 
recovered materials, biobased products, non-ozone-depleting products, 
and products and services that minimize or eliminate, when feasible, 
the use, release, or emission of high global warming potential 
hydrofluorocarbons, such as by using reclaimed instead of virgin 
hydrofluorocarbons;
* * * * *

0
7. Revise the heading of subpart 23.8 to read as follows:

Subpart 23.8--Ozone-Depleting Substances and Hydrofluorocarbons

0
8. Revise section 23.800 to read as follows:


23.800   Scope of subpart.

    This subpart sets forth policies and procedures for the acquisition 
of items that--
    (a) Contain, use, or are manufactured with ozone-depleting 
substances; or
    (b) Contain or use high global warming potential 
hydrofluorocarbons.

0
9. Revise section 23.801 to read as follows:


23.801  Authorities.

    (a) Title VI of the Clean Air Act (42 U.S.C. 7671, et seq.).
    (b) Section 706 of division D, title VII of the Omnibus 
Appropriations Act, 2009 (Public Law 111-8).
    (c) Executive Order 13693 of March 25, 2015, Planning for Federal 
Sustainability in the Next Decade.
    (d) Environmental Protection Agency (EPA) regulations, Protection 
of Stratospheric Ozone (40 CFR part 82).


23.802  [Removed]

0
10. Remove section 23.802.


23.803  [Redesignated as 23.802 and Amended]

0
11. Redesignate section 23.803 as 23.802 and revise newly redesignated 
23.802 to read as follows:


23.802   Policy.

    It is the policy of the Federal Government that Federal agencies--
    (a) 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; and
    (b) Give preference to the procurement of acceptable alternative 
chemicals, products, and manufacturing processes that reduce overall 
risks to

[[Page 30436]]

human health and the environment by minimizing--
    (1) The depletion of ozone in the upper atmosphere; and
    (2) The potential use, release, or emission of high global warming 
potential hydrofluorocarbons.

0
12. Add new section 23.803 to read as follows:


23.803  Procedures.

    In preparing specifications and purchase descriptions, and in the 
acquisition of products and services, agencies shall--
    (a) Comply with the requirements of title VI of the Clean Air Act, 
section 706 of division D, title VII of Public Law 111-8, Executive 
Order 13693, and 40 CFR 82.84(a)(2), (3), (4), and (5);
    (b) 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);
    (c) 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 Significant New 
Alternatives Policy (SNAP) program has identified other acceptable 
alternatives that have lower global warming potential; and
    (d) Refer to EPA's SNAP program for the list of alternatives, found 
at 40 CFR part 82, subpart G, as well as supplemental tables of 
alternatives (available at http://www.epa.gov/snap).

0
13. Revise section 23.804 to read as follows:


23.804  Contract clauses.

    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:
    (a) 52.223-11, Ozone-Depleting Substances and High Global Warming 
Potential Hydrofluorocarbons, in solicitations and contracts for--
    (1) Refrigeration equipment (in product or service code (PSC) 
4110);
    (2) Air conditioning equipment (PSC 4120);
    (3) 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);
    (4) Bulk refrigerants and fire suppressants (in PSC 6830);
    (5) 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);
    (6) 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);
    (7) Fluorocarbon lubricants (primarily aerosols) (in PSC 9150); and
    (8) Any other manufactured end products that may contain or be 
manufactured with ozone-depleting substances.
    (b) 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--
    (1) Refrigeration equipment, such as refrigerators, chillers, or 
freezers; or
    (2) Air conditioners, including air conditioning systems in motor 
vehicles.
    (c) 52.223-20, Aerosols, in solicitations and contracts--
    (1) For products that may contain high global warming potential 
hydrofluorocarbons as a propellant, or as a solvent; or
    (2) That involve maintenance or repair of electronic or mechanical 
devices.
    (d) 52.223-21, Foams, in solicitations and contracts for--
    (1) 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
    (2) Construction of buildings or facilities.

PART 25--FOREIGN ACQUISITION


25.1101  [Amended]

0
14. Amend section 25.1101 by removing from paragraph (f) ``, as defined 
in the provision at 52.225-18''.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
15. Amend section 52.212-5 by--
0
a. Revising the date of the clause; and
0
b. In paragraph (b)--
0
i. Redesignating paragraphs (b)(36) through (54) as paragraphs (b)(38) 
through (56), respectively;
0
ii. Adding new paragraphs (b)(36) and (37);
0
iii. Further redesignating newly redesignated paragraphs (b)(43) 
through (56) as paragraphs (b)(45) through (58), respectively; and
0
iv. Adding new paragraphs (b)(43) and (44).
    The revision and additions reads 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 (June, 2016)

* * * * *
    (b) * * *
    ____(36) 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons (June, 2016) (E.O. 13693).
    ____(37) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 
13693).
* * * * *
    ____(43) 52.223-20, Aerosols (June, 2016) (E.O. 13693).
    ____(44) 52.223-21, Foams (June, 2016) (E.O. 13693).

* * * * *

0
16. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. In paragraph (b)(1)--
0
i. Redesignating paragraphs (b)(1)(xi) through (xvi) as (b)(1)(xiii) 
through (xviii), respectively;
0
ii. Adding new paragraphs (b)(1)(xi) and (xii);
0
iii. Further redesignating newly redesignated paragraphs (b)(1)(xiv) 
through (xviii) as paragraphs (b)(1)(xvi) through (xx), respectively; 
and
0
iv. Adding new paragraphs (b)(1)(xiv) and (xv).
    The revision and additions read as follows:


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

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items) (June, 2016)

* * * * *
    (b) * * *
    (1) * * *
    (xi) 52.223-11, Ozone-Depleting Substances and High Global 
Warming Potential Hydrofluorocarbons (June, 2016)

[[Page 30437]]

(E.O. 13693)(applies to contracts for products as prescribed at FAR 
23.804(a)).
    (xii) 52.223-12, Maintenance, Service, Repair, or Disposal of 
Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 
13693) (Applies to maintenance, service, repair, or disposal of 
refrigeration equipment and air conditioners).
* * * * *
    (xiv) 52.223-20, Aerosols (June, 2016) (E.O. 13693) (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 (June, 2016) (E.O. 13693) (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
17. Amend section 52.223-11 by revising the section heading, clause 
heading, and clause to read as follows:


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

* * * * *

Ozone-Depleting Substances and High Global Warming Potential 
Hydrofluorocarbons (June, 2016)

    (a) Definitions. As used in this clause--
    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 
(http://www.epa.gov/snap/).
    Hydrofluorocarbons means compounds that only contain hydrogen, 
fluorine, and carbon.
    Ozone-depleting substance means any substance the Environmental 
Protection Agency 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.
    (b) The Contractor shall label products that contain or are 
manufactured with ozone-depleting substances in the manner and to 
the extent required by 42 U.S.C. 7671j (b), (c), (d), and (e) and 40 
CFR part 82, subpart E, as follows:
    Warning: Contains (or manufactured with, if applicable) 
*_______, a substance(s) which harm(s) public health and environment 
by destroying ozone in the upper atmosphere.
    * The Contractor shall insert the name of the substance(s).
    (c) Reporting. For equipment and appliances that normally each 
contain 50 or more pounds of hydrofluorocarbons or refrigerant 
blends containing hydrofluorocarbons, the Contractor shall--
    (1) Track on an annual basis, between October 1 and September 
30, the amount in pounds of hydrofluorocarbons or refrigerant blends 
containing hydrofluorocarbons contained in the equipment and 
appliances delivered to the Government under this contract by--
    (i) Type of hydrofluorocarbon (e.g., HFC-134a, HFC-125, R-410A, 
R-404A, etc.);
    (ii) Contract number; and
    (iii) Equipment/appliance;
    (2) Report that information to the Contracting Officer for FY16 
and to www.sam.gov, for FY17 and after--
    (i) Annually by November 30 of each year during contract 
performance; and
    (ii) At the end of contract performance.
    (d) The Contractor shall refer to EPA's SNAP program (available 
at http://www.epa.gov/snap) to identify alternatives. The SNAP list 
of alternatives is found at 40 CFR part 82, subpart G, with 
supplemental tables available at http://www.epa.gov/snap.
    (End of clause)


0
18. Amend section 52.223-12 by revising the section heading, clause 
heading, and clause to read as follows:


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

* * * * *

Maintenance, Service, Repair, or Disposal of Refrigeration Equipment 
and Air Conditioners (June, 2016)

    (a) Definitions. As used in this clause--
    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 
(http://www.epa.gov/snap/).
    Hydrofluorocarbons means compounds that contain only hydrogen, 
fluorine, and carbon.
    (b) The Contractor shall comply with the applicable requirements 
of sections 608 and 609 of the Clean Air Act (42 U.S.C. 7671g and 
7671h) as each or both apply to this contract.
    (c) Unless otherwise specified in the contract, the Contractor 
shall reduce the use, release, or emissions of high global warming 
potential hydrofluorocarbons under this contract by--
    (1) Transitioning over time to the use of another acceptable 
alternative in lieu of high global warming potential 
hydrofluorocarbons in a particular end use for which EPA's SNAP 
program has identified other acceptable alternatives that have lower 
global warming potential.
    (2) Preventing and repairing refrigerant leaks through service 
and maintenance during contract performance;
    (3) Implementing recovery, recycling, and responsible disposal 
programs that avoid release or emissions during equipment service 
and as the equipment reaches the end of its useful life; and
    (4) Using reclaimed hydrofluorocarbons, where feasible.
    (d) For equipment and appliances that normally each contain 50 
or more pounds of hydrofluorocarbons or refrigerant blends 
containing hydrofluorocarbons, that will be maintained, serviced, 
repaired, or disposed under this contract, the Contractor shall--
    (1) Track on an annual basis, between October 1 and September 
30, the amount in pounds of hydrofluorocarbons or refrigerant blends 
containing hydrofluorocarbons added or taken out of equipment or 
appliances under this contract by--
    (i) Type of hydrofluorocarbon (e.g., HFC-134a, HFC-125, R-410A, 
R-404A, etc.);
    (ii) Contract number;
    (iii) Equipment/appliance; and
    (2) Report that information to the Contracting Officer for FY16 
and to www.sam.gov, for FY17 and after--
    (i) No later than November 30 of each year during contract 
performance; and
    (ii) At the end of contract performance.
    (e) The Contractor shall refer to EPA's SNAP program to identify 
alternatives. The SNAP list of alternatives is found at 40 CFR part 
82, subpart G, with supplemental tables available at http://www.epa.gov/snap/.
    (End of clause)


0
19. Add section 52.223-20 to read as follows:


52.223-20  Aerosols.

    As prescribed in 23.804(c), insert the following clause:

Aerosols (June, 2016)

    (a) Definitions. As used in this clause--
    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 
http://www.epa.gov/snap/).
    Hydrofluorocarbons means compounds that contain only hydrogen, 
fluorine, and carbon.
    (b) Unless otherwise specified in the contract, the Contractor 
shall reduce its use, release, or emissions of high global warming

[[Page 30438]]

potential hydrofluorocarbons, when feasible, from aerosol 
propellants or solvents under this contract. When determining 
feasibility of using a particular alternative, the Contractor shall 
consider environmental, technical, and economic factors such as--
    (1) In-use emission rates, energy efficiency;
    (2) Safety, such as flammability or toxicity;
    (3) Ability to meet technical performance requirements; and
    (4) Commercial availability at a reasonable cost.
    (c) The Contractor shall refer to EPA's SNAP program to identify 
alternatives. The SNAP list of alternatives is found at 40 CFR part 
82, subpart G, with supplemental tables available at http://www.epa.gov/snap/.
    (End of clause)


0
20. Add section 52.223-21 to read as follows:


52.223-21  Foams.

    As prescribed in 23.804(d), insert the following clause:

Foams (June, 2016)

    (a) Definitions. As used in this clause--
    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 
http://www.epa.gov/snap/.
    Hydrofluorocarbons means compounds that contain only hydrogen, 
fluorine, and carbon.
    (b) Unless otherwise specified in the contract, the Contractor 
shall reduce its use, release, and emissions of high global warming 
potential hydrofluorocarbons and refrigerant blends containing 
hydrofluorocarbons, when feasible, from foam blowing agents, under 
this contract. When determining feasibility of using a particular 
alternative, the Contractor shall consider environmental, technical, 
and economic factors such as--
    (1) In-use emission rates, energy efficiency, and safety;
    (2) Ability to meet performance requirements; and
    (3) Commercial availability at a reasonable cost.
    (c) The Contractor shall refer to EPA's SNAP program to identify 
alternatives. The SNAP list of alternatives is found at 40 CFR part 
82, subpart G, with supplemental tables available at http://www.epa.gov/snap/.
    (End of clause)

[FR Doc. 2016-10998 Filed 5-13-16; 8:45 am]
 BILLING CODE 6820-EP-P