Federal Acquisition Regulation: Sustainable Acquisition, 5490-5499 [2017-00480]
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Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules
representatives to carry out the payment
and health care operations activities
listed in the preceding subparagraph,
require such recipients to implement
appropriate safeguards to prevent
unauthorized uses and disclosures and
require such recipients to report any
unauthorized uses, disclosures, or
breaches of patient identifying
information to the lawful holder. The
lawful holder should only disclose
information to the contractor or
subcontractor or legal representative
that is necessary for the contractor or
subcontractor to perform its duties
under the contract. Also, the contract
does not permit a contractor or
subcontractor or legal representative to
re-disclose information to a third party
unless that third party is a contract
agent of the contractor or subcontractor,
helping them provide services described
in the contract, and only as long as the
agent only further discloses the
information back to the contractor or
lawful holder from which the
information originated.
■ 3. Amend § 2.53 by:
■ a. Revising paragraph (a)(1)(i).
■ b. Revising paragraphs (b)(2)(i) and
(ii).
■ c. Revising paragraph (c)(5).
The revisions and addition read as
follows:
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§ 2.53
Audit and evaluation.
(a) * * *
(1) * * *
(i) Any Federal, State, or local
governmental agency which provides
financial assistance to the program or is
authorized by law to regulate the
activities of the part 2 program or those
of the lawful holder;
*
*
*
*
*
(b) * * *
(2) * * *
(i) Any federal, state, or local
governmental agency which provides
financial assistance to the program or is
authorized by law to regulate the
activities of the part 2 program or those
of the lawful holder; or
(ii) Any individual or entity which
provides financial assistance to the part
2 program, which is a third-party payer
covering patients in the part 2 program,
or which is a quality improvement
organization performing a utilization or
quality control review, or such
individual’s or entity’s or quality
improvement organization’s contractors,
subcontractors, or legal representatives.
*
*
*
*
*
(c) * * *
(5) If a disclosure to an individual or
entity is authorized under this section
for a Medicare, Medicaid, or CHIP audit
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or evaluation, including a civil
investigation or administrative remedy,
as those terms are used in paragraph
(c)(2) of this section, the individual or
entity may further disclose the patient
identifying information that is received
for such purposes to its contractor(s) or
subcontractor(s) to carry out the audit or
evaluation, and a quality improvement
organization which obtains such
information under paragraph (a) or (b) of
this section may disclose the
information to that individual or entity
(or, to such individual’s or entity’s
contractors, subcontractors, or legal
representatives, but only for the
purposes of this section.
*
*
*
*
*
Dated: January 5, 2017.
Kana Enomoto,
Acting Deputy Assistant Secretary for Mental
Health and Substance Use.
Approved:
Sylvia M. Burwell,
Secretary.
[FR Doc. 2017–00742 Filed 1–13–17; 11:15 am]
BILLING CODE 4162–20–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 4, 7, 11, 23, 36, 39, 42,
and 52
[FAR Case 2015–033; Docket No. 2015–
0033; Sequence No. 1]
RIN 9000–AN28
Federal Acquisition Regulation:
Sustainable Acquisition
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCIES:
DoD, GSA, and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
implement Executive Order, Planning
for Federal Sustainability in the Next
Decade, and the biobased product
acquisition provisions of the
Agricultural Act of 2014 (also known as
the 2014 Farm Bill).
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat Division at one of the
addresses shown below on or before
March 20, 2017 to be considered in the
formation of the final rule.
SUMMARY:
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Submit comments in
response to FAR Case 2015–033 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov.Submit comments
via the Federal eRulemaking portal by
searching for ‘‘FAR Case 2015–033’’.
Select the link ‘‘Comment Now’’ that
corresponds with ‘‘FAR Case 2015–
033.’’ Follow the instructions provided
on the screen. Please include your
name, company name (if any), and
‘‘FAR Case 2015–033’’ on your attached
document.
• Mail: General Services
Administration, Regulatory Secretariat,
ATTN: Ms. Flowers, 1800 F Street NW.,
2nd floor, Washington, DC 20405.
Instructions: Please submit comments
only and cite ‘‘FAR Case 2015–033’’ in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
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 ‘‘FAR Case
2015–033.’’
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Background
DoD, GSA, and NASA are proposing
to revise the FAR to implement policy
that will improve agencies’
environmental performance and Federal
sustainability. Federal agencies have
been the leaders in reducing building
and fleet energy use, using renewable
energy, and buying more sustainable
products and services as the United
States works to build a clean energy
economy. Building on the progress
achieved to date, President Obama
issued Executive Order (E.O.) 13693,
Planning for Federal Sustainability in
the Next Decade, on March 19, 2015,
published in the Federal Register at 80
FR 15869, on March 25, 2015, to plan
for and further expand agency progress
in reducing greenhouse gas emissions
over the next decade.
The changes made in this proposed
rule continue the improvements made
by the Federal Government to lead by
example in protecting the health of our
environment by purchasing sustainable
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products and services. This rule
promotes the acquisition of sustainable
products, services, and construction
methods in order to reduce energy and
water consumption, reliance on natural
resources, and enhance pollution
prevention, within the Federal
Government. While the anticipated
costs associated with this rule are not
quantified in dollar amounts, the
Councils anticipate that any such
impact will be outweighed by the
expected benefits of this rule.
This rule advances the policies put
into effect by an interim rule issued
under FAR case 2010–001, ‘‘Sustainable
Acquisition’’ (published in the Federal
Register at 76 FR 31395, and May 31,
2011), which established a culture
within the Federal acquisition
community to ‘‘leverage agency
acquisitions to foster markets for
sustainable technologies and materials,
products and services.’’ The comments
received on the interim rule will be
addressed along with any comments
received in response to this rule, in the
formulation of the final rule.
The E.O. directs Federal agencies to
continue their leadership in sustainable
acquisition in order to drive national
greenhouse gas reductions and support
preparations for the impacts of climate
change. The E.O. directs agencies,
where life-cycle cost-effective, to
promote sustainable acquisition and
procurement by ensuring that
environmental performance and
sustainability factors are included to the
maximum extent practicable for all
applicable procurements. These factors
include—
(1) Statutory mandates for purchase
preferences for recycled content
products, energy and water efficient
products and services (e.g., ENERGY
STAR® certified and Federal Energy
Management Program (FEMP)designated products, and biobased
products;
(2) Sustainable products and services
identified by the Environmental
Protection Agency’s (EPA) Significant
New Alternatives Policy (SNAP),
WaterSense®, Safer Choice, and
SmartWay® Transport Partners
Programs; and
(3) EPA-recommended specifications,
standards, or labels for environmentally
preferable products or products meeting
environmental performance criteria
developed by voluntary consensus
standards bodies consistent with the
National Technology Transfer and
Advancement Act and Office of
Management and Budget (OMB)
Circular A–119.
In addition to the changes to
sustainable acquisition requirements
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made by E.O. 13693, this proposed rule
implements sections 9001 and 9002(a)
of the Agricultural Act of 2014, Public
Law 113–79 (also known as the 2014
Farm Bill), which revised the definition
of ‘‘biobased product.’’ (See 7 U.S.C.
8101 and 8102.)
II. Discussion and Analysis
The initiatives conveyed in E.O.
13693 and reflected in this proposed
rule build on the policies and
procedures set in motion by earlier
E.O.s, namely E.O. 13423,
‘‘Strengthening Federal Environmental,
Energy, and Transportation
Management,’’ and E.O. 13514, ‘‘Federal
Leadership in Environmental, Energy,
and Economic Performance,’’ so as to
further promote sustainable acquisition
practices throughout the Federal
Government. Both of these E.O.s were
revoked upon issuance of E.O. 13693.
A summary of the proposed changes
is as follows:
A. Definitions
In FAR parts 2 and 23, several new
definitions are added and existing
definitions are revised, pursuant to E.O.
13693 and, in certain instances, the
2014 Farm Bill.
Under FAR subpart 2.1, the
definitions of ‘‘biobased product,’’
‘‘environmentally preferable,’’ and
‘‘sustainable acquisition’’ are revised to
reflect the definitions in the 2014 Farm
Bill and E.O. 13693. A new definition
for the term ‘‘environmentally
sustainable electronic product’’ is added
and the definition for ‘‘renewable
energy’’ has been removed.
A definition of ‘‘sustainable products
and services’’ is added to FAR subpart
2.1. This definition includes the
expanded scope of Federal sustainable
requirements listed in the sustainable
acquisition section of the E.O. (section
3(i)). E.O. section 3(i)(i) through (iii)
also provides that sustainable products
and services include products that meet
EPA recommendations for the use of
specifications, standards, and labels or,
in the absence of EPA
recommendations, other specifications,
standards, and labels developed by
voluntary consensus standards bodies.
The definition of ‘‘sustainable products
and services’’ reflects these new
provisions.
The following definitions have been
added or moved to FAR part 23:
The E.O. 13693 definitions of ‘‘clean
energy,’’ ‘‘alternative energy’’ (along
with definitions for specific types of
alternative energy such as ‘‘active
capture and storage’’, ‘‘combined heat
and power,’’ ‘‘fuel cell energy systems,’’
and ‘‘thermal renewable energy
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technologies’’), and ‘‘renewable electric
energy’’ are added to the FAR.
A definition of ‘‘life-cycle costeffective’’ is added, based on the
definition of that term in E.O. 13693 and
the discussion of life-cycle costs in the
E.O. 13693 implementing instructions.
The definition for ‘‘water
consumption intensity’’ while
unchanged, has been moved from FAR
subpart 2.1 to FAR 23.001 because this
term is used only in FAR part 23, as
opposed to multiple areas of the FAR.
The definition of the term ‘‘contract
action’’ at FAR subpart 23.1 is revised
to specify that the term includes task
and delivery orders placed against both
new contracts and existing contracts.
A definition of life-cycle cost is
added, which echoes the definition at
FAR 7.101.
Finally, the definitions at FAR 23.701,
which were related to the ‘‘Electronic
products environmental assessment
tool’’ (EPEAT®), have been removed.
This topic is discussed further at section
II C. of this preamble.
B. FAR Parts 7 and 11
FAR parts 7 and 11 are updated to
reflect the sustainability factors to be
considered in acquisitions. The Web site
URL for accessing the Guiding
Principles for Sustainable Federal
Buildings and Associated Instructions is
updated in FAR 7.103(p)(3). At FAR
7.105(b)(17) and 11.002, agencies and
contractors are referred to GSA’s Green
Procurement Compilation, which
consolidates all Federal designations of
sustainable products and services into
one tool. Also, in FAR 11.002, guidance
is added to ensure agencies are aware
they must acquire sustainable products
and services to the maximum extent
practicable.
C. FAR Part 23
The scope of FAR part 23 is revised
to note that the sustainable acquisition
prescriptions apply to construction and
services contracts that require the
supply or use of products falling within
the sustainable products categories.
FAR 23.100 is revised to reflect the
policy established in E.O. 13693 to
build a clean energy economy, drive
national greenhouse gas emissions
reductions, and support preparations for
the impacts of climate change. The
policy continues to apply to contractors
operating Government buildings and is
amended to provide that it applies to
contractors operating Government fleet
vehicles, in accordance with the
requirement in E.O. 13693.
FAR 23.103 is revised to reflect the
E.O. 13693 requirement that agencies
shall advance sustainable acquisition to
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the maximum extent practicable. This is
a change from E.O. 13514, which
required that 95 percent of acquisitions
include applicable sustainable product
requirements, and is consistent with
statutory requirements in the Resource
Conservation and Recovery Act and the
Farm Security and Rural Investment Act
that agencies purchase recycled content
and biobased products, respectively, to
the maximum extent practicable.
The exceptions in FAR 23.104 are
updated to reflect the exceptions
provided under E.O. 13693. The
methodology for determining whether a
product or service is life-cycle costeffective is provided at FAR 23.104(b).
At FAR 23.106, a prescription is
added for the new contract clause at
FAR 52.223–XX, Sustainable Products
and Services Requirements, which
replaces multiple individual clauses.
FAR subpart 23.2 is amended to
implement the energy and water
efficiency, and clean energy acquisition
requirements of E.O. 13693. In
particular, FAR 23.202 now focuses on
agencies’ obligation to improve water
use efficiency and management through
the acquisition of water efficient
products and employing water
conservation strategies. Since there will
now be one contract clause for
sustainable products and services, the
energy-efficient product specific clause
prescription in FAR 23.206 has been
removed because it is no longer needed.
In FAR subpart 23.4, the URL for the
U.S. Department of Agriculture’s
BioPreferred Web site is updated. One
requirement from the 2014 Farm Bill
was added: Agencies must add to their
affirmative procurement programs
provisions for reporting the quantities
and types of biobased products
purchased. Additionally, the
prescription to use the clause at FAR
52.223–17, Affirmative Procurement of
EPA-designated Items in Service and
Construction Contracts, is removed.
FAR 23.000 now specifies that
sustainable acquisition applies to
construction and services contracts and
the new clause at FAR 52.223–XX,
Sustainable Products and Services
Requirements, covers products and
services furnished for Government use,
incorporated into the construction of a
public building or public work, or
furnished for contractor use at a
Federally-controlled facility, so the
clause at FAR 52.223–17 is no longer
needed.
FAR subpart 23.7 is revised to reflect
the new requirements in E.O. 13693.
FAR 23.704, formerly titled ‘‘Electronic
products environmental assessment
tool’’ (EPEAT®), required agencies to
purchase EPEAT®-registered electronic
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products; however, the Office of
Management and Budget, Office of
Federal Procurement Policy has more
recently determined that references to
proprietary programs such as EPEAT®
should be removed from the FAR.
Furthermore, E.O. 13693 directs
agencies to purchase ‘‘environmentally
sustainable electronic products’’ and
does not address EPEAT®-registered
products. Accordingly, the definitions at
FAR 23.701 are removed and FAR
23.703 and 23.704 are—updated to
reiterate the environmentally preferable
products and services acquisition
requirements in E.O. 13693, and require
purchase of ‘‘environmentally
sustainable electronic products’’ unless
an exception or an exemption applies.
In addition, new direction has been
placed in FAR 23.703 to require that the
item being purchased must meet or
exceed the applicable specifications,
standards, or labels that are
recommended by the U.S.
Environmental Protection Agency. On
September 25, 2015, published in the
Federal Register at 80 FR 57809, EPA
issued interim recommendations for
non-Federal standards (e.g., state or
local Government or third-party source)
and labels for Federal purchasers to use
to identify and procure environmentally
preferable products. EPA recommends
that agencies procure EPEAT®registered computers, imaging
equipment, and televisions. It is
possible that in the future other options
may be developed that align with EPA
Guidelines and support the electronic
stewardship mandates of E.O. 13693,
section 3(l).
FAR 23.705 is amended to remove the
requirements to insert the EPEAT®
clauses. Whether an agency continues to
purchase electronics listed on the
EPEAT® registry, or purchases products
verified to meet EPA recommended
specifications, standards, or labels, it
will be able to use the new, single
sustainable products and services
clause.
D. FAR Part 36
FAR 36.104 previously required
agencies to divert at least 50 percent of
their construction and demolition debris
by the end of fiscal year (FY) 2015, in
keeping with E.O. 13514. E.O. 13693
requires agencies to consistently meet
the 50 percent diversion goal annually,
rather than by a specific year.
Accordingly, FAR 36.104 is revised to
delete the FY 2015 date for meeting the
construction and demolition debris
diversion goal. The updated Web site
URL for accessing the Guiding
Principles for Sustainable Federal
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Buildings and Associated Instructions
also is provided.
E. FAR Part 39
FAR 39.101 is amended to delete the
reference to EPEAT® and substitute
EPA-recommended specifications,
standards, or labels for environmentally
sustainable electronic products. A new
paragraph has been added, directing
agencies to consider climate changerelated risks when acquiring
information technology. This guidance
supports the requirement in section 13
of E.O. 13693, for agencies to identify
and address the projected impacts of
climate change in mission critical
operations, such as communication.
F. FAR Part 52
FAR part 52 is revised to update E.O.
references and incorporate the policies
reflected in E.O. 13693. The modified
clauses include—
• FAR 52.212–5, Contract Terms and
Conditions Required to Implement
Statutes or ExecutiveOrders—
Commercial Items—deletion of
references to the EPEAT® clauses and
addition of the new clause for
sustainable products and services
requirements;
• FAR 52.213–4, Terms and
Conditions-Simplified Acquisitions
(Other Than Commercial Items)—
amendment of E.O. reference, addition
of the new FAR clause 52.223–XX
Sustainable Products and Services
Requirements is added, and deletion of
FAR 52.223–15;
• FAR 52.223–1, Biobased Product
Certification—updated statutory
reference
• FAR 52.223–2, Affirmative
Procurement of Biobased Products
Under Service and Construction
Contracts—revised the title to reflect the
clause focus on contractor reporting of
biobased products supplied or used
under service and construction
contracts;
• FAR 52.223–5, Pollution Prevention
and Right-to-Know Information—
amendment of E.O. reference; and
• FAR 52.223–10, Waste Reduction
Program—amendment of E.O. reference.
To address the removal of references
to EPEAT from the FAR and move to a
new single clause for sustainable
products and services, the following
FAR clauses are deleted:
FAR 52.223–13, Acquisition of
EPEAT®–Registered Imaging
Equipment.
FAR 52.223–14, Acquisition of
EPEAT®-Registered Televisions.
FAR 52.223–15, Energy Efficiency in
Energy-Consuming Products.
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FAR 52.223–16, Acquisition of
EPEAT®-Registered Personal Computer
Products.
FAR 52.223–17, Affirmative
Procurement of EPA-designated Items in
Service and Construction Contracts.
A new clause at FAR 52.223–XX,
Sustainable Products and Services
Requirements, is added to implement
E.O. 13693’s expanded list of
environmental and sustainability
programs that agencies shall consider
when purchasing products and services.
Rather than adding new clauses when
EPA recommends additional
specifications, standards, and labels,
this clause refers to GSA’s Green
Procurement Compilation for the
current requirements and
recommendations for purchasing
sustainable products and services.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule proposes to add a new
clause at FAR 52.223–XX, Sustainable
Products and Services Requirements,
which requires contractors performing
on Federal contracts to furnish or
incorporate into the performance of a
service or construction of a public
building or public work or use, in
connection with the contractors’
performance at a Federally-controlled
facility, sustainable products and
services. Application of this clause to
solicitations and contracts at or below
the simplified acquisition threshold
(SAT) and to the acquisition of
commercial items, including
commercially available off-the-shelf
(COTS) items, is necessary in order to
comply with the Executive Order.
41 U.S.C. 1905 through 1907 make
certain provisions of law inapplicable to
solicitations and contracts at or below
the simplified acquisition threshold
(SAT) and to the acquisition of
commercial items, including
commercially available off-the-shelf
(COTS) items, unless the FAR Council/
Administrator for Federal Procurement
Policy determine that such exemption
from the statute would not be in the best
interest of the Federal Government.
However, 41 U.S.C. 1905 through 1907
are only applicable to statutory
provisions, not Executive orders.
IV. Executive Orders 12866 and 13563
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
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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
The proposed rule may have
significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. The
Initial Regulatory Flexibility Analysis
(IRFA) is summarized as follows:
The requirements for this proposed rule
may impact acquisitions covering a wide
array of the products and services and related
industry sectors within the Federal supplier
base including information technology and
telecommunications, managerial and
administrative support services, installation,
maintenance, repair, and rebuilding of
equipment, janitorial, construction,
manufacturing, and energy. However, Federal
contractors have already been required to
provide products, services, and construction
effort that meet the majority of sustainable
acquisition requirements of E.O. 13693,
under previous E.O.s, laws, and
sustainability programs.
Some sustainable products, such as energy
and water-efficient products and services, are
less expensive than conventional options
while other products and services will realize
cost savings over the lifecycle of the product.
The latter grouping of products and service
may require a higher start-up investment on
the part of the contractor, but as demand for
products with reduced environmental and
human health impacts grows, prices of
greener products will decrease. In addition,
the rule may have net benefits for small
businesses by creating opportunities for them
to supply sustainable products and services.
Federal Procurement Data System (FPDS)
data obtained on June 21, 2016, reveals that
approximately 112,150 unique contractors
were awarded Federal contracts during fiscal
year (FY) 2015. Of the total number of
vendors that received contracts in FY 2015,
approximately 75,000 or 67 percent were
unique small business concerns. Based on
this information, it is estimated that in future
years, a similar number of small business
concerns will receive contracts subject to the
requirements of this rule.
This proposed rule does not include any
new reporting, recordkeeping, or other
compliance requirements for small
businesses. The proposed rule does not
duplicate, overlap, or conflict with any other
Federal rules.
The Regulatory Secretariat Division
has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
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5493
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat Division. DoD,
GSA and NASA invite comments from
small business concerns and other
interested parties on the expected
impact of this rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by the rule consistent
with 5 U.S.C. 610. Interested parties
must submit such comments separately
and should cite 5 U.S.C. 610 (FAR Case
2015–033), in correspondence.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does apply; however,
the proposed changes to the FAR do not
impose additional information
collection requirements to the
paperwork burden. The pertinent,
previously approved OMB control
numbers include 9000–0147, ‘‘Pollution
Prevention and Right-to-Know
Information,’’ and 9000–0180,
‘‘Biobased Procurements.’’
List of Subjects in 48 CFR Parts 2, 4, 7,
11, 23, 36, 39, 42, and 52
Government procurement.
Dated: January 5, 2017.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are
proposing to amend 48 CFR parts 2, 4,
7, 11, 23, 36, 39, 42, and 52 as set forth
below:
■ 1. The authority citation for 48 CFR
parts 2, 4, 7, 11, 23, 36, 39, 42, 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.
PART 2—DEFINITIONS OF WORDS
AND TERMS
2. Amend section 2.101, in paragraph
(b)(2), by—
■ a. Revising the definitions ‘‘Biobased
product’’, and ‘‘Environmentally
preferable’’;
■ b. Adding, in alphabetical order, the
definition ‘‘Environmentally sustainable
electronic product’’;
■ c. Removing the definition
‘‘Renewable energy’’;
■ d. Revising the definition
‘‘Sustainable acquisition’’;
■ e. Adding, in alphabetical order, the
definition ‘‘Sustainable products and
Services’’; and
■ f. Removing the definition ‘‘Water
consumption intensity’’.
The revisions and additions read as
follows:
■
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Definitions.
(b) * * *
(2) * * *
Biobased product means a product
determined by the U.S. Department of
Agriculture to be a commercial or
industrial product (other than food or
feed) that is composed, in whole or in
significant part, of biological products,
including renewable domestic
agricultural materials and forestry
materials or that is an intermediate
ingredient or feedstock. The term
includes, with respect to forestry
materials, forest products that meet
biobased content requirements,
notwithstanding the market share the
product holds, the age of the product, or
whether the market for the product is
new or emerging.
*
*
*
*
*
Environmentally preferable means
that products or services have a lesser
or reduced effect on human health and
the environment when compared with
competing products or services that
serve the same purpose. This
comparison may consider raw materials
acquisition, production, manufacturing,
packaging, distribution, reuse,
operation, maintenance, or disposal
related to the product or service.
Environmentally sustainable
electronic product means an electronic
product that is ENERGY STAR®
certified or Federal Energy Management
Program (FEMP) designated, as
applicable, and meets or exceeds the
applicable specifications, standards, or
labels that are recommended by the U.S.
Environmental Protection Agency, (see
https://www.epa.gov/greenerproducts).
*
*
*
*
*
Sustainable acquisition means
ensuring that environmental
performance and other sustainability
requirements, as prescribed in part 23,
are included to the maximum extent
practicable in the planning, award, and
execution phases of acquisitions.
Sustainable products and services
means products and services, including
construction, that—
(1) Meet statutory mandates for
purchasing—
(i) Recycled content products
designated by the U.S. Environmental
Protection Agency (EPA) under the
Comprehensive Procurement
Guidelines;
(ii) Energy and water efficient
products such as ENERGY STAR®
certified and Federal Energy
Management Program (FEMP)–
designated products identified by EPA
and the U.S. Department of Energy; and
(iii) Biobased content products
meeting the content requirement of the
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16:51 Jan 17, 2017
Jkt 241001
U.S. Department of Agriculture under
the BioPreferred® program;
(2) Are identified by EPA programs,
including—
(i) Significant New Alternatives
Policy (SNAP) chemicals or other
alternatives to 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;
(ii) WaterSense® certified products
and services (water efficient products);
(iii) Safer Choice Certified products
(chemically intensive products that
contain safer ingredients); and
(iv) SmartWay® Transport partners
and SmartWay® products (fuel efficient
products and services); or
(3) Are environmentally preferable
products or services that—
(i) Meet or exceed specifications,
standards, or labels recommended by
EPA, (see https://www.epa.gov/
greenerproducts); or
(ii) Where there is no specification,
standard, or label recommended by EPA
for a specific product or service
category, meet environmental
performance criteria developed or
adopted by voluntary consensus
standards bodies consistent with section
12(d) of the National Technology
Transfer and Advancement Act of 1995
(Public Law 104–113) and Office of
Management and Budget Circular A–
119).
*
*
*
*
*
PART 4—ADMINISTRATIVE MATTERS
3. Amend section 4.302 by revising
paragraph (a) to read as follows:
■
4.302
Policy.
(a) Section 3(j) of Executive Order
13693 of March 19, 2015, Planning for
Federal Sustainability in the Next
Decade, directs agencies to reduce and
prevent waste. Electronic commerce
methods (see 4.502) and double-sided
printing and copying are examples of
best practices for waste prevention.
*
*
*
*
*
PART 7—ACQUISITION PLANNING
4. Amend section 7.103 by revising
paragraphs (p)(1) through (p)(3) to read
as follows:
■
7.103
Agency-head responsibilities.
*
*
*
*
*
(p) Ensuring that agency planners—
(1) Specify needs for uncoated
printing and writing paper containing
30 percent postconsumer recycled
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content or higher, consistent with
section 3(i)(v) of Executive Order 13693
of March 19, 2015, Planning for Federal
Sustainability in the Next Decade;
(2) Comply with the policy in
11.002(d) regarding procurement of
sustainable products and services (as
defined in 2.101);
(3) Comply with the Guiding
Principles for Sustainable Federal and
Associated Instructions (Guiding
Principles), for the design, construction,
renovation, repair, or deconstruction of
Federal buildings. The Guiding
Principles can be accessed at https://
www.wbdg.org/references/fhpsb.php;
and
*
*
*
*
*
■ 4. Amend section 7.105 by revising
paragraph (b)(17) to read as follows:
7.105 Contents of written acquisition
plans.
*
*
*
*
*
(b) * * *
(17) Environmental and energy
conservation objectives. Discuss—
(i) The applicable environmental and
energy conservation objectives
associated with the acquisition (see part
23);
(ii) The applicability of an
environmental assessment or
environmental impact statement (see 40
CFR 1502);
(iii) The proposed resolution of
environmental issues;
(iv) Any environmentally-related
requirements to be included in
solicitations and contracts (see 11.002
and 11.303); and
(v) The requirements for the
acquisition or use of sustainable
products and services (as defined in
2.101). A compilation of the Federal
sustainability criteria for various
products and services is found on GSA’s
Green Procurement Compilation at
https://www.sftool.gov/
greenprocurement/. The EPA’s
recommendations for specifications,
standards or labels that can be used for
purchasing sustainable products and
services are available at https://
www.epa.gov/greenerproducts.
*
*
*
*
*
PART 11—DESCRIBING AGENCY
NEEDS
5. Amend section 11.002 by revising
paragraph (d)(1) and the introductory
text of paragraph (d)(2) to read as
follows:
■
11.002
Policy.
*
*
*
*
*
(d)(1) Statutes and Executive orders
identified in part 23 require agencies to
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acquire sustainable products and
services (as defined in 2.101) to the
maximum extent practicable. To find
sustainable products and services, visit
GSA’s Green Procurement Compilation
at https://www.sftool.gov/
greenprocurement.
(2) Unless an exception applies and is
documented by the requiring activity,
Executive agencies shall, to the
maximum extent practicable, require the
use of sustainable products and services
when—
*
*
*
*
*
■ 6. Amend section 11.303 by removing
paragraphs (a) and (b); and adding a
new introductory paragraph to read as
follows:
11.303
Special requirements for paper.
When purchasing uncoated printing
and writing paper (e.g., copier paper,
envelopes, etc.), or products printed on
uncoated printing and writing paper,
agencies shall require that the paper
contain at least 30 percent
postconsumer recycled content or
higher (Executive Order 13693 of March
19, 2015, Planning for Federal
Sustainability in the Next Decade).
■ 7. Amend part 23 by revising the part
heading to read as follows:
PART 23—ENVIRONMENT, ENERGY,
OCCUPATIONAL SAFETY, AND
DRUG–FREE WORKPLACE
8. Revise section 23.000 to read as
follows:
■
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23.000
Scope.
This part prescribes acquisition
policies and procedures supporting the
Government’s program for ensuring a
drug-free workplace, for protecting and
improving the quality of the
environment, and to acquire and foster
markets for sustainable technologies,
materials, products, and services,
including construction, (see GSA’s
Green Procurement Compilation at
https://sftool.gov/greenprocurement)
and encouraging the safe operations of
vehicles by—
*
*
*
*
*
■ 9. Amend section 23.001 by—
■ a. Adding, in alphabetical order, the
definitions ‘‘Active capture and
storage’’, ‘‘Alternative energy’’, ‘‘Clean
energy’’, ‘‘Combined heat and power’’,
and ‘‘Fuel cell energy systems’’;
■ b. Revising the definition
‘‘Greenhouse gases’’; and
■ c. Adding, in alphabetical order, the
definitions ‘‘Life-cycle cost’’, ‘‘Life-cycle
cost effective’’, ‘‘Renewable electric
energy’’, ‘‘Thermal renewable energy
technologies’’, and ‘‘Water consumption
intensity’’.
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16:51 Jan 17, 2017
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The additions and revision read as
follows:
23.001
Definitions.
*
*
*
*
*
Active capture and storage means a
set of technologies that captures carbon
dioxide from power plants, transports
the captured carbon dioxide to a
sequestration well, and injects the
carbon dioxide into the sequestration
well in a way that prevents the gas from
escaping from the well and back into the
atmosphere. These technologies are also
referred to as carbon capture and storage
technologies.
Alternative energy means energy
generated from technologies and
approaches that advance renewable heat
sources, including biomass, solar
thermal, geothermal, waste heat, and
renewable combined heat and power
processes; combined heat and power;
fuel cell energy systems; and energy
generation, where active capture and
storage of carbon dioxide emissions
associated with that energy generation is
verified.
Clean energy means renewable
electric energy and alternative energy.
Combined heat and power means
systems that capture energy that is
normally lost in centralized power
generation and convert that energy to
provide heating and cooling. They are
also known as co-generation systems.
*
*
*
*
*
Fuel cell energy systems means
stationary or distributed generation
projects used for baseload power,
backup power, power for remote
locations, and cogeneration. Stationary
fuel cells typically use natural gas, or a
renewable energy equivalent such as
biogas, to produce either electricity or
combined heat and electricity.
Greenhouse gases means carbon
dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons,
nitrogen trifluoride, and sulfur
hexafluoride.
Life-cycle cost means the total cost to
the Government of acquiring, operating,
supporting, and (if applicable) disposing
of the items being acquired.
Life-cycle cost-effective means that the
life-cycle costs of a product are
estimated to be equal to or less than the
base case (i.e., current or standard
practice or product). In some cases, a
life-cycle cost-effective product may
result in a higher up front cost with
lower operations or maintenance costs
or longer life.
Renewable electric energy means
energy produced by solar, wind,
biomass, landfill gas, ocean (including
tidal, wave, current, and thermal),
geothermal, geothermal heat pumps,
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5495
microturbines, municipal solid waste, or
new hydroelectric generation capacity
achieved from increased efficiency or
additions of new capacity at an existing
hydroelectric project (Executive Order
13693 of March 19, 2015, Planning for
Federal Sustainability in the Next
Decade).
Thermal renewable energy
technologies means solar, wood,
biomass, and landfill gas systems that
exclusively produce non-electric energy
(i.e., heating or cooling).
*
*
*
*
*
Water consumption intensity means
water consumption per square foot of
building space.
23.002
[Reserved]
10. Remove and reserve section
23.002.
■ 11. Add section 23.100 to read as
follows:
■
23.100
Policy.
(a) This subpart prescribes the
policies and procedures for the
acquisition of sustainable products and
services. The Government’s policy is to
build a clean energy economy that will
sustain the environment for generations
to come. Federal leadership in
sustainable acquisition will continue to
drive national greenhouse gas
reductions and support preparations for
the impacts of climate change.
(b) Except as provided at 23.104 and
23.105 of this subpart, the Government’s
policy on sustainable acquisition
applies to—
(1) All acquisitions, including those
using part 12 procedures and those at or
below the micro-purchase threshold;
and
(2) Contractors operating Government
buildings and vehicles. Executive Order
13693 of March 19, 2015, Planning for
Federal Sustainability in the Next
Decade, section 7(d), requires that leases
and contracts for lessor or contractor
operation of Government-owned
buildings or vehicles facilitate the
agency’s compliance with the Executive
Order.
■ 12. Amend section 23.101 by revising
the first sentence of the definition
‘‘Contract action’’ to read as follows:
23.101
Definition.
*
*
*
*
*
Contract action means any oral or
written action, including task and
delivery orders, that results in the
purchase, rent, or lease of supplies or
equipment, services, or construction
using appropriated dollars, including
purchases below the micro-purchase
threshold.
*
*
*
*
*
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13. Revise section 23.102 to read as
follows:
■
23.102
Authorities.
(a) Executive Order 13693 of March
19, 2015, Planning for Federal
Sustainability in the Next Decade.
(b) All of the authorities specified in
subparts 23.2, 23.4, 23.7, 23.8, and
23.10.
■ 14. Amend section 23.103 by—
■ a. Revising the section heading and
paragraph (a); and
■ b. Removing paragraph (d).
The revisions read as follows:
23.103 Acquisition of sustainable
products and services.
(a) Federal agencies shall advance
sustainable acquisition by ensuring that
new contract actions for the supply of
products and for the acquisition of
services (including construction) require
sustainable products and services (as
defined in 2.101) to the maximum
extent practicable (see GSA’s Green
Procurement Compilation at https://
www.sftool.gov/greenprocurement).
*
*
*
*
*
■ 15. Revise section 23.104 to read as
follows:
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23.104
(a) This subpart does not apply to the
following acquisitions:
(1) Contracts performed outside of the
United States, unless the agency head
determines that such application is in
the interest of the United States.
(2) Acquisition of sustainable
products or services that are not
considered practicable due to one or
more of the following conditions—
(i) A product or service cannot be
acquired that meets reasonable
performance requirements;
(ii) A product or service cannot be
acquired competitively within the
required delivery or performance
schedule;
(iii) A product or service cannot be
acquired at a reasonable price, i.e., lifecycle cost-effective (see paragraph (b));
or
(iv) An ENERGY STAR® certified
product or FEMP-designated product is
not life-cycle cost-effective (see section
23.204).
(b)(1) The price shall be deemed
unreasonable when the total life-cycle
costs are significantly higher for the
sustainable product or service compared
to the non-sustainable product or
service.
(2) Life-cycle costs are determined by
combining the purchase price of a
product or service with any net costs or
savings revenues generated from that
product or service during its life.
16:51 Jan 17, 2017
23.203
23.106
23.401
Contract clause.
When purchasing sustainable
products or services, except as provided
at 23.104 and 23.105, insert the clause
at 52.223–XX, Sustainable Products and
Services Requirements, in solicitations
and contracts.
Subpart 23.2—Energy Efficient
Products, Water Efficient Products and
Services, Renewable Electric Energy,
and Alternative Energy
17. Revise subpart heading 23.2 as set
forth above.
■ 18. Amend section 23.201 by revising
paragraphs (g) and (h) to read as follows:
■
23.201
Authorities.
*
Exceptions.
VerDate Sep<11>2014
(c) If at any point during the
acquisition it is determined that a
contract action cannot comply with the
sustainable requirements for one of the
reasons listed in paragraph (a)(2) of this
section, the contracting officer shall
obtain the documented rationale from
the requiring activity and ensure that
this documentation is maintained in the
contract file.
■ 16. Add section 23.106 to read as
follows:
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*
*
*
*
(g) Executive Order 13693 of March
19, 2015, Planning for Federal
Sustainability in the Next Decade.
(h) Section 438 of the Energy
Independence and Security Act of 2007
(42 U.S.C. 17094).
■ 19. Revise section 23.202 to read as
follows:
23.202 Water efficient products and
services.
Agencies shall improve water use
efficiency and management, including
stormwater management by—
(a) Reducing potable water
consumption intensity by purchasing
WaterSense® and other water efficient
products and implementing water
efficient strategies;
(b) Purchasing and installing water
meters and water loss monitoring
services; and
(c) Purchasing and installing
appropriate green infrastructure features
on Federally owned property to help
with stormwater and wastewater
management in accordance with section
438 of the Energy Independence and
Security Act of 2007 (42 U.S.C. 17094).
(See https://www.epa.gov/greeningepa/
technical-guidance-implementingstormwater-runoff-requirements-federalprojects for additional information
regarding green infrastructure.)
■ 20. Amend section 23.203 by revising
paragraph (b)(2) to read as follows:
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Energy-efficient products.
*
*
*
*
*
(b) * * *
(2) FEMP at https://energy.gov/eere/
femp/energy-and-water-efficientproducts.
23.206
[Reserved]
21. Remove and reserve section
23.206.
■ 22. Amend section 23.401 by revising
paragraph (b)(2) to read as follows:
■
Definitions.
*
*
*
*
*
(b) * * *
(2) For which USDA has provided
purchasing recommendations available
at https://www.biopreferred.gov/
BioPreferred/faces/Welcome.xhtml.
■ 23. Amend section 23.402 by revising
paragraphs (c) and (d); and removing
paragraph (e).
The revisions read as follows:
23.402
Authorities.
*
*
*
*
*
(c) The Energy Policy Act of 2005,
Pub. L. 109–58.
(d) Executive Order 13693 of March
19, 2015, Planning for Federal
Sustainability in the Next Decade.
■ 24. Amend section 23.404 by—
■ a. Removing from paragraph (a)(3)(iii)
the word ‘‘and’’;
■ b. Redesignating paragraph (a)(3)(iv)
as paragraph (a)(3)(v); and
■ c. Adding a new paragraph (a)(3)(iv).
The revision and addition read as
follows:
23.404 Agency affirmative procurement
programs.
(a) * * *
(3) * * *
(iv) For USDA-designated items only,
provisions for reporting quantities and
types of biobased products purchased
by the Federal agency; and
*
*
*
*
*
23.405
[Amended]
25. Amend section 23.405 by
removing from paragraph (a)(2) ‘‘https://
www.biopreferred.gov’’ and adding
‘‘https://www.biopreferred.gov/
BioPreferred/’’ in its place.
■ 26. Amend section 23.406 by revising
paragraphs (b) and (c); and removing
paragraph (e) to read as follows:
■
23.406 Solicitation provisions and
contract clauses.
*
*
*
*
*
(b) Insert the clause at 52.223–2,
Reporting of Biobased Products Under
Service and Construction Contracts, in
service or construction solicitations and
contracts, unless the contract will not
involve the use of USDA-designated
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items at https://www.biopreferred.gov/
BioPreferred/ or 7 CFR part 3201.
(c) Except for the acquisition of
commercially available off-the-shelf
items, insert the provision at 52.223–4,
Recovered Material Certification, in
solicitations that require the delivery or
specify the use of EPA-designated items.
*
*
*
*
*
■ 27. Revise 23.700 to read as follows:
23.700
Authorities.
*
*
*
*
(f) Executive Order 13693 of March
19, 2015, Planning for Federal
Sustainability in the Next Decade.
■ 30. Revise section 23.703 to read as
follows:
Policy.
mstockstill on DSK3G9T082PROD with PROPOSALS
(a) Agencies shall procure
environmentally sustainable electronic
products (as defined in 2.101), unless an
exception in 23.104 or an exemption in
23.105 applies. The Web site at https://
www.epa.gov/greenerproducts/
identifies a registry of environmentally
sustainable products that meet the
EPA’s recommended specifications,
standards, or labels. The award of a
contract to satisfy an agency’s
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[Amended]
32. Amend section 23.705 by
redesignating paragraph (a) as the
introductory paragraph; and removing
paragraphs (b) through (d).
■ 33. Revise section 23.901 to read as
follows:
■
Authority.
Authorities.
*
*
*
*
(c) Executive Order 13693 of March
19, 2015, Planning for Federal
Sustainability in the Next Decade.
■ 35. Amend section 23.1004 by—
■ a. Revising paragraph (a)(2); and
■ b. Removing from paragraph (b),
introductory text, ‘‘E.O. 13423’’ and
adding ‘‘E.O. 13693’’ in its place.
The revisions read as follows:
23.1004
Requirements.
(a) * * *
(1) * * *
(2) The toxic chemical and hazardous
substance release and use reduction
goals of sections 3(j) and (7)(d) of
Executive Order 13693.
*
*
*
*
*
PART 36—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
36. Amend section 36.104 by revising
paragraphs (b)(1) and (5) to read as
follows:
■
36.104
Policy.
*
23.704 Environmentally sustainable
electronic products.
16:51 Jan 17, 2017
39.101
Policy.
39.102
23.705
*
Agencies must—
(a) Purchase environmentally
preferable products or services that—
(1) Meet or exceed specifications,
standards, or labels recommended by
EPA (see https://www.epa.gov/
greenerproducts/); or
(2) If no EPA recommendations are
available for the product or service the
agency is procuring, meet
environmental performance criteria
developed or adopted by voluntary
consensus standards bodies consistent
with section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (Pub. L. 104–113) and the
Office of Management and Budget
(OMB) Circular A–119; and
(b) Realize life-cycle cost savings.
■ 31. Revise section 23.704 to read as
follows:
VerDate Sep<11>2014
37. Amend section 39.101 by revising
paragraph (a)(1)(ii); and adding
paragraph (a)(1)(v) to read as follows:
■
(a)(1) * * *
(ii) Specifications, standards, or labels
for environmentally sustainable
electronic products recommended by
the U.S. Environmental Protection
Agency (see 23.704);
*
*
*
*
*
(v) Policies to prepare for climate
change-related risks (such as increased
frequency of extreme weather events,
increases in maximum temperatures,
and sea level rise), including risk to
mission critical communications, such
as telecommunications and data centers.
*
*
*
*
*
■ 38. Amend section 39.102 by revising
paragraph (b) to read as follows:
23.901
*
23.703
PART 39—ACQUISITION OF
INFORMATION TECHNOLOGY
23.1001
[Reserved]
28. Remove and reserve section
23.701.
■ 29. Amend section 23.702 by
removing paragraphs (f) and (g); and
adding a new paragraph (f) to read as
follows:
■
23.702
percent of construction and demolition
materials and debris.
Executive Order 13693 of March 19,
2015, Planning for Federal
Sustainability in the Next Decade.
■ 34. Amend section 23.1001 by
revising paragraph (c) and removing
paragraph (d).
The revision reads as follows:
Scope.
This subpart prescribes policies for
acquiring environmentally preferable
products and services, including
environmentally sustainable electronic
products.
23.701
requirement for an electronic product
must be made to a contractor that offers
products currently listed on the registry.
(b) This section applies to
acquisitions of electronic products to be
used in the United States, unless
otherwise provided by agency
procedures. When acquiring electronic
products to be used outside the United
States, agencies must use their best
efforts to comply with this section.
5497
*
*
*
*
(b) * * *
(1) Ensure that all new construction,
major renovation, or repair and
alteration of Federal buildings complies
with the Guiding Principles for
Sustainable Federal Buildings and
Associated Instructions (available at
https://www.wbdg.org/references/
fhpsb.php);
*
*
*
*
*
(5) Ensure pollution prevention and
eliminate waste by diverting at least 50
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Management of risk.
*
*
*
*
*
(b) Types of risk may include
schedule risk, risk of technical
obsolescence, cost risk, risk implicit in
a particular contract type, technical
feasibility, dependencies between a new
project and other projects or systems,
the number of simultaneous high risk
projects to be monitored, funding
availability, program management risk,
and projected impacts of climate
change.
*
*
*
*
*
PART 42—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
39. Amend section 42.302 by revising
paragraph (a)(68)(ii) to read as follows:
■
42.302
Contract administration functions.
(a) * * *
(68) * * *
(ii) Monitoring contractor compliance
with specifications or other contractual
requirements requiring the delivery or
use of sustainable products and services
(as defined in 2.101). This must occur
as part of the quality assurance
procedures set forth in Part 46; and
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
40. Amend section 52.204–8 by—
a. Revising the date of the provision;
b. Removing from paragraph
(c)(1)(xvi) ‘‘Affirmative Procurement’’
and adding ‘‘Reporting’’ in its place.
■
■
■
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Biobased Product Certification (Date)
The revision reads as follows:
*
*
*
*
*
44. Amend section 52.223–2 by
revising the section heading, the date of
the clause, and the clause to read as
follows:
52.204–8 Annual Representations and
Certifications.
*
*
*
*
■
*
Annual Representations and
Certifications (Date)
*
*
*
*
*
■ 41. Amend section 52.212–5 by—
■ a. Revising the date of the clause and
paragraph (b)(40);
■ b. Removing paragraphs (b)(41)
through (43); and
■ c. Redesignate paragraphs (b)(44)
through (60) as paragraphs (b)(41)
through (b)(57), respectively.
The revisions read as follows:
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
*
*
*
*
*
Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items
(Date)
*
*
*
*
*
(b) * * *
ll(40) 52.223–XX Sustainable
Products and Services Requirements
(Date) (E.O. 13693).
*
*
*
*
*
■ 42. Amend section 52.213–4 by
revising the date of the clause,
paragraphs (b)(1)(x) and (b)(1)(xiii) to
read as follows:
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
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*
*
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*
*
*
(b) * * *
(1) * * *
(x) 52.223–5, Pollution Prevention
and Right-to-Know Information (Date)
(E.O. 13693) (Applies to services
performed on Federal facilities).
*
*
*
*
*
(xiii) 52.223–XX, Sustainable
Products and Services Requirements
(Date) (E.O. 13693) (Applies to
acquisitions for sustainable products
and services).
*
*
*
*
*
■ 43. Amend section 52.223–1 by—
■ a. Revising the date of the provision;
and
■ b. Removing from the provision ‘‘(7
U.S.C. 8102(c)(3))’’ and adding ‘‘(7
U.S.C. 8102(a)(2)(F))’’ in its place.
The revision reads as follows:
*
Biobased Product Certification.
*
VerDate Sep<11>2014
*
*
16:51 Jan 17, 2017
*
*
52.223–13 thru 52.223–17
*
(a) Report to https://www.sam.gov, with a
copy to the Contracting Officer, on the
product types and dollar value of any USDAdesignated biobased products purchased by
the Contractor during the previous
Government fiscal year, between October 1
and September 30; and
(b) Submit this report no later than—
(1) October 31 of each year during contract
performance; and
(2) At the end of contract performance.
(End of clause)
45. Amend section 52.223–5 by—
a. Revising the date on the clause;
b. Removing from paragraph (c),
introductory text, ‘‘all information’’ and
adding ‘‘the following information as’’
in its place;
■ c. Revising paragraph (c)(6);
■ d. Revising the date of Alternate I and
paragraph (c)(7);
■ e. Revising the date of Alternate II and
paragraph (c)(7).
The revisions read as follows:
■
■
■
*
*
*
*
Pollution Prevention and Right-toKnow Information (Date)
*
*
*
*
*
(c) * * *
(6) The toxic chemical and hazardous
substance release and use reduction
goals of section 3(j) of Executive Order
13693.
*
*
*
*
*
Alternate I (Date). * * *
(c)(7) The facility environmental
management system.
Alternate II (Date). * * *
(c)(7) The facility compliance audits.
■ 46. Amend section 52.223–10 by—
■ a. Removing from the introductory
paragraph ‘‘23.705(a)’’ and adding
‘‘23.705’’ in its place;
■ b. Revising the date of the clause;
■ c. Revising the first sentence of
paragraph (b).
The revisions read as follows:
52.223–10
Waste Reduction Program.
*
*
*
*
*
Waste Reduction Program (Date)
*
Jkt 241001
*
Reporting of Biobased Products Under
Service and Construction Contracts
(Date)
*
*
*
*
*
52.223–5 Pollution Prevention and Rightto-Know Information.
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial
Items) (Date)
52.223–1
52.223–2 Reporting of Biobased Products
Under Service and Construction Contracts.
PO 00000
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*
Frm 00068
*
Fmt 4702
*
Sfmt 4702
(b) Consistent with the requirements
of sections 3(j) and 7(d) of Executive
Order 13693, the Contractor shall
establish a program to promote costeffective waste reduction in all
operations and facilities covered by this
contract. * * *
*
*
*
*
*
[Reserved]
47. Remove and reserve sections
52.223–13 thru 52.223–17.
■ 48. Add section 52.223–XX to read as
follows:
■
52.223–XX Sustainable Products and
Services Requirements
As prescribed in 23.106, insert the
following clause,
Sustainable Products and Services
Requirements (Date)
(a) Definitions. As used in this clause—
Green Procurement Compilation, means a
public Web site that identifies Federal
sustainable acquisition requirements and
provides other guidance for the purchase of
sustainable products and services.
Sustainable products and services means
products and services, including
construction, that—
(1) Meet statutory mandates for
purchasing—
(i) Recycled content products designated
by the U.S. Environmental Protection Agency
(EPA) under the Comprehensive Procurement
Guidelines;
(ii) Energy and water efficient products
such as ENERGY STAR® certified and
Federal Energy Management Program
(FEMP)-designated products identified by
EPA and the U.S. Department of Energy; and
(iii) Biobased content products meeting the
content requirement of the U.S. Department
of Agriculture under the BioPreferred®
program;
(2) Are identified by EPA programs,
including—
(i) Significant New Alternatives Policy
(SNAP) chemicals or other alternatives to
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;
(ii) WaterSense® certified products and
services (water efficient products);
(iii) Safer Choice Certified products
(chemically intensive products that contain
safer ingredients); and
(iv) SmartWay® Transport partners and
SmartWay® products (fuel efficient products
and services); or
(3) Are environmentally preferable
products or services that—
(i) Meet or exceed specifications,
standards, or labels recommended by EPA,
(see https://www.epa.gov/greenerproducts);
or
(ii) Where there is no specification,
standard, or label recommended by EPA for
a specific product or service category, meet
E:\FR\FM\18JAP1.SGM
18JAP1
Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules
environmental performance criteria
developed or adopted by voluntary
consensus standards bodies consistent with
section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (Pub.
L. 104–113) and Office of Management and
Budget Circular A–119.
(b) Unless approved in writing by the
Contracting Officer, in the performance of
this contract, the Contractor shall—
(1) Deliver, furnish for Government use;
(2) Incorporate into the construction of a
public building or public work; or
(3) Furnish for Contractor use at a
Federally-controlled facility sustainable
products and services as specified in the
contract.
(c) Sustainable products and services must
meet the applicable standard, specifications,
or other program requirements at the time of
submission of an offer or a quote.
(d) Visit the Green Procurement
Compilation at https://www.sftool.gov/
greenprocurement for a comprehensive list of
Federal Governmentwide sustainable product
and service requirements.
(End of clause)
[FR Doc. 2017–00480 Filed 1–17–17; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 171, 172, 173, 174, 177,
178, 179, and 180
[Docket No. PHMSA–2016–0077 (HM–251D)]
RIN 2137–AF24
Hazardous Materials: Volatility of
Unrefined Petroleum Products and
Class 3 Materials
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), Department of Transportation
(DOT or Department).
ACTION: Advance notice of proposed
rulemaking (ANPRM).
AGENCY:
PHMSA is considering
revising the Hazardous Materials
Regulations (HMR) to establish vapor
pressure limits for unrefined petroleumbased products and potentially all Class
3 flammable liquid hazardous materials
that would apply during the
transportation of the products or
materials by any mode. PHMSA is
currently assessing the merits of a
petition for rulemaking submitted by the
Attorney General of the State of New
York regarding vapor pressure standards
for the transportation of crude oil. The
petition requests that PHMSA
implement a Reid Vapor Pressure (RVP)
limit less than 9.0 pounds per square
inch (psi) for crude oil transported by
mstockstill on DSK3G9T082PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
16:51 Jan 17, 2017
Jkt 241001
rail. PHMSA will use the comments in
response to this ANPRM to help assess
and respond to the petition and to
evaluate any other potential regulatory
actions related to sampling and testing
of crude oil and other Class 3 hazardous
materials. PHMSA will also evaluate the
potential safety benefits and costs of
utilizing vapor pressure thresholds
within the hazardous materials
classification process for unrefined
petroleum-based products and Class 3
hazardous materials.
DATES: Comments must be received by
March 20, 2017.
ADDRESSES: You may submit comments
identified by the docket number
PHMSA–2016–0077 (HM–251D) and the
relevant petition number by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov Follow the
instructions for submitting comments.
• Fax: 1–202–493–2251.
• Mail: Docket Management System;
U.S. Department of Transportation,
West Building, Ground Floor, Room
W12–140, Routing Symbol M–30, 1200
New Jersey Avenue SE., Washington,
DC 20590.
• Hand Delivery: To the Docket
Management System; Room W12–140
on the ground floor of the West
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must
include the agency name and docket
number for this ANPRM at the
beginning of the comment. To avoid
duplication, please use only one of
these four methods. All comments
received will be posted without change
to https://www.regulations.gov and will
include any personal information you
provide. All comments received will be
posted without change to the Federal
Docket Management System (FDMS),
including any personal information.
Docket: For access to the dockets to
read background documents or
comments received, go to https://
www.regulations.gov or DOT’s Docket
Operations Office located at U.S.
Department of Transportation, West
Building, Ground Floor, Room W12–
140, Routing Symbol M–30, 1200 New
Jersey Avenue SE., Washington, DC
20590.
Privacy Act: Anyone can search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comments (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). DOT posts
these comments, without edit, including
PO 00000
Frm 00069
Fmt 4702
Sfmt 4702
5499
any personal information the
commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Lad
Falat, Director, Engineering and
Research, (202) 366–4545, Office of
Hazardous Materials Safety, Pipeline
and Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey Ave.
SE., Suite E21–314, Washington, DC
20590–0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Objective of This ANPRM
III. Petition P–1669 & Other Efforts To Set a
Vapor Pressure Standard for Crude Oil
A. Summary & Supporting Data for Petition
P–1669
B. North Dakota Industrial Commission
(NDIC) Oil Conditioning Order No.
25417
IV. Background Information
A. Current HMR Requirements for the
Classification of Unrefined PetroleumBased Products
B. High-Hazard Flammable Train (HHFT)
Rulemaking
C. Sandia Study
D. PHMSA Actions
E. Pipeline Operators
F. Accident History and Vapor Pressure
Levels
V. Comments and Questions
A. General Questions
B. Safety Questions
C. Vapor Pressure Questions
D. Packaging Questions
VI. Regulatory Review and Notices
A. Executive Order 12866, Executive Order
13563, Executive Order 13610, and DOT
Regulatory Policies and Procedures
B. Executive Order 13132
C. Executive Order 13175
D. Regulatory Flexibility Act, Executive
Order 13272, and DOT Policies and
Procedures
E. Paperwork Reduction Act
F. Environmental Assessment
G. Privacy Act
H. Executive Order 13609 and
International Trade Analysis
I. Statutory/Legal Authority for This
Rulemaking
J. Regulation Identifier Number (RIN)
K. Executive Order 13211
I. Executive Summary
On December 1, 2015, PHMSA
received a petition for rulemaking from
the New York State Office of the
Attorney General (New York AG)
proposing amendments to the
Hazardous Materials Regulations (HMR;
49 CFR parts 171–180) applicable to the
transportation of crude oil by rail.
PHMSA designated the petition as
E:\FR\FM\18JAP1.SGM
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]]>Agencies
[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Proposed Rules]
[Pages 5490-5499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00480]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 7, 11, 23, 36, 39, 42, and 52
[FAR Case 2015-033; Docket No. 2015-0033; Sequence No. 1]
RIN 9000-AN28
Federal Acquisition Regulation: Sustainable Acquisition
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement Executive Order, Planning for
Federal Sustainability in the Next Decade, and the biobased product
acquisition provisions of the Agricultural Act of 2014 (also known as
the 2014 Farm Bill).
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at one of the addresses shown below on
or before March 20, 2017 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2015-033 by any of
the following methods:
Regulations.gov: https://www.regulations.gov.Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2015-033''. Select the link ``Comment Now'' that corresponds with ``FAR
Case 2015-033.'' Follow the instructions provided on the screen. Please
include your name, company name (if any), and ``FAR Case 2015-033'' on
your attached document.
Mail: General Services Administration, Regulatory
Secretariat, ATTN: Ms. Flowers, 1800 F Street NW., 2nd floor,
Washington, DC 20405.
Instructions: Please submit comments only and cite ``FAR Case 2015-
033'' in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
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 ``FAR Case 2015-
033.''
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to revise the FAR to implement
policy that will improve agencies' environmental performance and
Federal sustainability. Federal agencies have been the leaders in
reducing building and fleet energy use, using renewable energy, and
buying more sustainable products and services as the United States
works to build a clean energy economy. Building on the progress
achieved to date, President Obama issued Executive Order (E.O.) 13693,
Planning for Federal Sustainability in the Next Decade, on March 19,
2015, published in the Federal Register at 80 FR 15869, on March 25,
2015, to plan for and further expand agency progress in reducing
greenhouse gas emissions over the next decade.
The changes made in this proposed rule continue the improvements
made by the Federal Government to lead by example in protecting the
health of our environment by purchasing sustainable
[[Page 5491]]
products and services. This rule promotes the acquisition of
sustainable products, services, and construction methods in order to
reduce energy and water consumption, reliance on natural resources, and
enhance pollution prevention, within the Federal Government. While the
anticipated costs associated with this rule are not quantified in
dollar amounts, the Councils anticipate that any such impact will be
outweighed by the expected benefits of this rule.
This rule advances the policies put into effect by an interim rule
issued under FAR case 2010-001, ``Sustainable Acquisition'' (published
in the Federal Register at 76 FR 31395, and May 31, 2011), which
established a culture within the Federal acquisition community to
``leverage agency acquisitions to foster markets for sustainable
technologies and materials, products and services.'' The comments
received on the interim rule will be addressed along with any comments
received in response to this rule, in the formulation of the final
rule.
The E.O. directs Federal agencies to continue their leadership in
sustainable acquisition in order to drive national greenhouse gas
reductions and support preparations for the impacts of climate change.
The E.O. directs agencies, where life-cycle cost-effective, to promote
sustainable acquisition and procurement by ensuring that environmental
performance and sustainability factors are included to the maximum
extent practicable for all applicable procurements. These factors
include--
(1) Statutory mandates for purchase preferences for recycled
content products, energy and water efficient products and services
(e.g., ENERGY STAR[supreg] certified and Federal Energy Management
Program (FEMP)-designated products, and biobased products;
(2) Sustainable products and services identified by the
Environmental Protection Agency's (EPA) Significant New Alternatives
Policy (SNAP), WaterSense[supreg], Safer Choice, and SmartWay[supreg]
Transport Partners Programs; and
(3) EPA-recommended specifications, standards, or labels for
environmentally preferable products or products meeting environmental
performance criteria developed by voluntary consensus standards bodies
consistent with the National Technology Transfer and Advancement Act
and Office of Management and Budget (OMB) Circular A-119.
In addition to the changes to sustainable acquisition requirements
made by E.O. 13693, this proposed rule implements sections 9001 and
9002(a) of the Agricultural Act of 2014, Public Law 113-79 (also known
as the 2014 Farm Bill), which revised the definition of ``biobased
product.'' (See 7 U.S.C. 8101 and 8102.)
II. Discussion and Analysis
The initiatives conveyed in E.O. 13693 and reflected in this
proposed rule build on the policies and procedures set in motion by
earlier E.O.s, namely E.O. 13423, ``Strengthening Federal
Environmental, Energy, and Transportation Management,'' and E.O. 13514,
``Federal Leadership in Environmental, Energy, and Economic
Performance,'' so as to further promote sustainable acquisition
practices throughout the Federal Government. Both of these E.O.s were
revoked upon issuance of E.O. 13693.
A summary of the proposed changes is as follows:
A. Definitions
In FAR parts 2 and 23, several new definitions are added and
existing definitions are revised, pursuant to E.O. 13693 and, in
certain instances, the 2014 Farm Bill.
Under FAR subpart 2.1, the definitions of ``biobased product,''
``environmentally preferable,'' and ``sustainable acquisition'' are
revised to reflect the definitions in the 2014 Farm Bill and E.O.
13693. A new definition for the term ``environmentally sustainable
electronic product'' is added and the definition for ``renewable
energy'' has been removed.
A definition of ``sustainable products and services'' is added to
FAR subpart 2.1. This definition includes the expanded scope of Federal
sustainable requirements listed in the sustainable acquisition section
of the E.O. (section 3(i)). E.O. section 3(i)(i) through (iii) also
provides that sustainable products and services include products that
meet EPA recommendations for the use of specifications, standards, and
labels or, in the absence of EPA recommendations, other specifications,
standards, and labels developed by voluntary consensus standards
bodies. The definition of ``sustainable products and services''
reflects these new provisions.
The following definitions have been added or moved to FAR part 23:
The E.O. 13693 definitions of ``clean energy,'' ``alternative
energy'' (along with definitions for specific types of alternative
energy such as ``active capture and storage'', ``combined heat and
power,'' ``fuel cell energy systems,'' and ``thermal renewable energy
technologies''), and ``renewable electric energy'' are added to the
FAR.
A definition of ``life-cycle cost-effective'' is added, based on
the definition of that term in E.O. 13693 and the discussion of life-
cycle costs in the E.O. 13693 implementing instructions.
The definition for ``water consumption intensity'' while unchanged,
has been moved from FAR subpart 2.1 to FAR 23.001 because this term is
used only in FAR part 23, as opposed to multiple areas of the FAR.
The definition of the term ``contract action'' at FAR subpart 23.1
is revised to specify that the term includes task and delivery orders
placed against both new contracts and existing contracts.
A definition of life-cycle cost is added, which echoes the
definition at FAR 7.101.
Finally, the definitions at FAR 23.701, which were related to the
``Electronic products environmental assessment tool'' (EPEAT[supreg]),
have been removed. This topic is discussed further at section II C. of
this preamble.
B. FAR Parts 7 and 11
FAR parts 7 and 11 are updated to reflect the sustainability
factors to be considered in acquisitions. The Web site URL for
accessing the Guiding Principles for Sustainable Federal Buildings and
Associated Instructions is updated in FAR 7.103(p)(3). At FAR
7.105(b)(17) and 11.002, agencies and contractors are referred to GSA's
Green Procurement Compilation, which consolidates all Federal
designations of sustainable products and services into one tool. Also,
in FAR 11.002, guidance is added to ensure agencies are aware they must
acquire sustainable products and services to the maximum extent
practicable.
C. FAR Part 23
The scope of FAR part 23 is revised to note that the sustainable
acquisition prescriptions apply to construction and services contracts
that require the supply or use of products falling within the
sustainable products categories.
FAR 23.100 is revised to reflect the policy established in E.O.
13693 to build a clean energy economy, drive national greenhouse gas
emissions reductions, and support preparations for the impacts of
climate change. The policy continues to apply to contractors operating
Government buildings and is amended to provide that it applies to
contractors operating Government fleet vehicles, in accordance with the
requirement in E.O. 13693.
FAR 23.103 is revised to reflect the E.O. 13693 requirement that
agencies shall advance sustainable acquisition to
[[Page 5492]]
the maximum extent practicable. This is a change from E.O. 13514, which
required that 95 percent of acquisitions include applicable sustainable
product requirements, and is consistent with statutory requirements in
the Resource Conservation and Recovery Act and the Farm Security and
Rural Investment Act that agencies purchase recycled content and
biobased products, respectively, to the maximum extent practicable.
The exceptions in FAR 23.104 are updated to reflect the exceptions
provided under E.O. 13693. The methodology for determining whether a
product or service is life-cycle cost-effective is provided at FAR
23.104(b).
At FAR 23.106, a prescription is added for the new contract clause
at FAR 52.223-XX, Sustainable Products and Services Requirements, which
replaces multiple individual clauses.
FAR subpart 23.2 is amended to implement the energy and water
efficiency, and clean energy acquisition requirements of E.O. 13693. In
particular, FAR 23.202 now focuses on agencies' obligation to improve
water use efficiency and management through the acquisition of water
efficient products and employing water conservation strategies. Since
there will now be one contract clause for sustainable products and
services, the energy-efficient product specific clause prescription in
FAR 23.206 has been removed because it is no longer needed.
In FAR subpart 23.4, the URL for the U.S. Department of
Agriculture's BioPreferred Web site is updated. One requirement from
the 2014 Farm Bill was added: Agencies must add to their affirmative
procurement programs provisions for reporting the quantities and types
of biobased products purchased. Additionally, the prescription to use
the clause at FAR 52.223-17, Affirmative Procurement of EPA-designated
Items in Service and Construction Contracts, is removed. FAR 23.000 now
specifies that sustainable acquisition applies to construction and
services contracts and the new clause at FAR 52.223-XX, Sustainable
Products and Services Requirements, covers products and services
furnished for Government use, incorporated into the construction of a
public building or public work, or furnished for contractor use at a
Federally-controlled facility, so the clause at FAR 52.223-17 is no
longer needed.
FAR subpart 23.7 is revised to reflect the new requirements in E.O.
13693. FAR 23.704, formerly titled ``Electronic products environmental
assessment tool'' (EPEAT[supreg]), required agencies to purchase
EPEAT[supreg]-registered electronic products; however, the Office of
Management and Budget, Office of Federal Procurement Policy has more
recently determined that references to proprietary programs such as
EPEAT[supreg] should be removed from the FAR. Furthermore, E.O. 13693
directs agencies to purchase ``environmentally sustainable electronic
products'' and does not address EPEAT[supreg]-registered products.
Accordingly, the definitions at FAR 23.701 are removed and FAR 23.703
and 23.704 are--updated to reiterate the environmentally preferable
products and services acquisition requirements in E.O. 13693, and
require purchase of ``environmentally sustainable electronic products''
unless an exception or an exemption applies. In addition, new direction
has been placed in FAR 23.703 to require that the item being purchased
must meet or exceed the applicable specifications, standards, or labels
that are recommended by the U.S. Environmental Protection Agency. On
September 25, 2015, published in the Federal Register at 80 FR 57809,
EPA issued interim recommendations for non-Federal standards (e.g.,
state or local Government or third-party source) and labels for Federal
purchasers to use to identify and procure environmentally preferable
products. EPA recommends that agencies procure EPEAT[supreg]-registered
computers, imaging equipment, and televisions. It is possible that in
the future other options may be developed that align with EPA
Guidelines and support the electronic stewardship mandates of E.O.
13693, section 3(l).
FAR 23.705 is amended to remove the requirements to insert the
EPEAT[supreg] clauses. Whether an agency continues to purchase
electronics listed on the EPEAT[supreg] registry, or purchases products
verified to meet EPA recommended specifications, standards, or labels,
it will be able to use the new, single sustainable products and
services clause.
D. FAR Part 36
FAR 36.104 previously required agencies to divert at least 50
percent of their construction and demolition debris by the end of
fiscal year (FY) 2015, in keeping with E.O. 13514. E.O. 13693 requires
agencies to consistently meet the 50 percent diversion goal annually,
rather than by a specific year. Accordingly, FAR 36.104 is revised to
delete the FY 2015 date for meeting the construction and demolition
debris diversion goal. The updated Web site URL for accessing the
Guiding Principles for Sustainable Federal Buildings and Associated
Instructions also is provided.
E. FAR Part 39
FAR 39.101 is amended to delete the reference to EPEAT[supreg] and
substitute EPA-recommended specifications, standards, or labels for
environmentally sustainable electronic products. A new paragraph has
been added, directing agencies to consider climate change-related risks
when acquiring information technology. This guidance supports the
requirement in section 13 of E.O. 13693, for agencies to identify and
address the projected impacts of climate change in mission critical
operations, such as communication.
F. FAR Part 52
FAR part 52 is revised to update E.O. references and incorporate
the policies reflected in E.O. 13693. The modified clauses include--
FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or ExecutiveOrders--Commercial Items--deletion of
references to the EPEAT[supreg] clauses and addition of the new clause
for sustainable products and services requirements;
FAR 52.213-4, Terms and Conditions-Simplified Acquisitions
(Other Than Commercial Items)--amendment of E.O. reference, addition of
the new FAR clause 52.223-XX Sustainable Products and Services
Requirements is added, and deletion of FAR 52.223-15;
FAR 52.223-1, Biobased Product Certification--updated
statutory reference
FAR 52.223-2, Affirmative Procurement of Biobased Products
Under Service and Construction Contracts--revised the title to reflect
the clause focus on contractor reporting of biobased products supplied
or used under service and construction contracts;
FAR 52.223-5, Pollution Prevention and Right-to-Know
Information--amendment of E.O. reference; and
FAR 52.223-10, Waste Reduction Program--amendment of E.O.
reference.
To address the removal of references to EPEAT from the FAR and move
to a new single clause for sustainable products and services, the
following FAR clauses are deleted:
FAR 52.223-13, Acquisition of EPEAT[supreg]-Registered Imaging
Equipment.
FAR 52.223-14, Acquisition of EPEAT[supreg]-Registered Televisions.
FAR 52.223-15, Energy Efficiency in Energy-Consuming Products.
[[Page 5493]]
FAR 52.223-16, Acquisition of EPEAT[supreg]-Registered Personal
Computer Products.
FAR 52.223-17, Affirmative Procurement of EPA-designated Items in
Service and Construction Contracts.
A new clause at FAR 52.223-XX, Sustainable Products and Services
Requirements, is added to implement E.O. 13693's expanded list of
environmental and sustainability programs that agencies shall consider
when purchasing products and services. Rather than adding new clauses
when EPA recommends additional specifications, standards, and labels,
this clause refers to GSA's Green Procurement Compilation for the
current requirements and recommendations for purchasing sustainable
products and services.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule proposes to add a new clause at FAR 52.223-XX,
Sustainable Products and Services Requirements, which requires
contractors performing on Federal contracts to furnish or incorporate
into the performance of a service or construction of a public building
or public work or use, in connection with the contractors' performance
at a Federally-controlled facility, sustainable products and services.
Application of this clause to solicitations and contracts at or below
the simplified acquisition threshold (SAT) and to the acquisition of
commercial items, including commercially available off-the-shelf (COTS)
items, is necessary in order to comply with the Executive Order.
41 U.S.C. 1905 through 1907 make certain provisions of law
inapplicable to solicitations and contracts at or below the simplified
acquisition threshold (SAT) and to the acquisition of commercial items,
including commercially available off-the-shelf (COTS) items, unless the
FAR Council/Administrator for Federal Procurement Policy determine that
such exemption from the statute would not be in the best interest of
the Federal Government. However, 41 U.S.C. 1905 through 1907 are only
applicable to statutory provisions, not Executive orders.
IV. Executive Orders 12866 and 13563
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
The proposed rule may have significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The Initial
Regulatory Flexibility Analysis (IRFA) is summarized as follows:
The requirements for this proposed rule may impact acquisitions
covering a wide array of the products and services and related
industry sectors within the Federal supplier base including
information technology and telecommunications, managerial and
administrative support services, installation, maintenance, repair,
and rebuilding of equipment, janitorial, construction,
manufacturing, and energy. However, Federal contractors have already
been required to provide products, services, and construction effort
that meet the majority of sustainable acquisition requirements of
E.O. 13693, under previous E.O.s, laws, and sustainability programs.
Some sustainable products, such as energy and water-efficient
products and services, are less expensive than conventional options
while other products and services will realize cost savings over the
lifecycle of the product. The latter grouping of products and
service may require a higher start-up investment on the part of the
contractor, but as demand for products with reduced environmental
and human health impacts grows, prices of greener products will
decrease. In addition, the rule may have net benefits for small
businesses by creating opportunities for them to supply sustainable
products and services.
Federal Procurement Data System (FPDS) data obtained on June 21,
2016, reveals that approximately 112,150 unique contractors were
awarded Federal contracts during fiscal year (FY) 2015. Of the total
number of vendors that received contracts in FY 2015, approximately
75,000 or 67 percent were unique small business concerns. Based on
this information, it is estimated that in future years, a similar
number of small business concerns will receive contracts subject to
the requirements of this rule.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small
businesses. The proposed rule does not duplicate, overlap, or
conflict with any other Federal rules.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule
consistent with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-033),
in correspondence.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply;
however, the proposed changes to the FAR do not impose additional
information collection requirements to the paperwork burden. The
pertinent, previously approved OMB control numbers include 9000-0147,
``Pollution Prevention and Right-to-Know Information,'' and 9000-0180,
``Biobased Procurements.''
List of Subjects in 48 CFR Parts 2, 4, 7, 11, 23, 36, 39, 42, and
52
Government procurement.
Dated: January 5, 2017.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts
2, 4, 7, 11, 23, 36, 39, 42, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 4, 7, 11, 23, 36, 39, 42,
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.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101, in paragraph (b)(2), by--
0
a. Revising the definitions ``Biobased product'', and ``Environmentally
preferable'';
0
b. Adding, in alphabetical order, the definition ``Environmentally
sustainable electronic product'';
0
c. Removing the definition ``Renewable energy'';
0
d. Revising the definition ``Sustainable acquisition'';
0
e. Adding, in alphabetical order, the definition ``Sustainable products
and Services''; and
0
f. Removing the definition ``Water consumption intensity''.
The revisions and additions read as follows:
[[Page 5494]]
2.101 Definitions.
(b) * * *
(2) * * *
Biobased product means a product determined by the U.S. Department
of Agriculture to be a commercial or industrial product (other than
food or feed) that is composed, in whole or in significant part, of
biological products, including renewable domestic agricultural
materials and forestry materials or that is an intermediate ingredient
or feedstock. The term includes, with respect to forestry materials,
forest products that meet biobased content requirements,
notwithstanding the market share the product holds, the age of the
product, or whether the market for the product is new or emerging.
* * * * *
Environmentally preferable means that products or services have a
lesser or reduced effect on human health and the environment when
compared with competing products or services that serve the same
purpose. This comparison may consider raw materials acquisition,
production, manufacturing, packaging, distribution, reuse, operation,
maintenance, or disposal related to the product or service.
Environmentally sustainable electronic product means an electronic
product that is ENERGY STAR[supreg] certified or Federal Energy
Management Program (FEMP) designated, as applicable, and meets or
exceeds the applicable specifications, standards, or labels that are
recommended by the U.S. Environmental Protection Agency, (see https://www.epa.gov/greenerproducts).
* * * * *
Sustainable acquisition means ensuring that environmental
performance and other sustainability requirements, as prescribed in
part 23, are included to the maximum extent practicable in the
planning, award, and execution phases of acquisitions.
Sustainable products and services means products and services,
including construction, that--
(1) Meet statutory mandates for purchasing--
(i) Recycled content products designated by the U.S. Environmental
Protection Agency (EPA) under the Comprehensive Procurement Guidelines;
(ii) Energy and water efficient products such as ENERGY
STAR[supreg] certified and Federal Energy Management Program (FEMP)-
designated products identified by EPA and the U.S. Department of
Energy; and
(iii) Biobased content products meeting the content requirement of
the U.S. Department of Agriculture under the BioPreferred[supreg]
program;
(2) Are identified by EPA programs, including--
(i) Significant New Alternatives Policy (SNAP) chemicals or other
alternatives to 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;
(ii) WaterSense[supreg] certified products and services (water
efficient products);
(iii) Safer Choice Certified products (chemically intensive
products that contain safer ingredients); and
(iv) SmartWay[supreg] Transport partners and SmartWay[supreg]
products (fuel efficient products and services); or
(3) Are environmentally preferable products or services that--
(i) Meet or exceed specifications, standards, or labels recommended
by EPA, (see https://www.epa.gov/greenerproducts); or
(ii) Where there is no specification, standard, or label
recommended by EPA for a specific product or service category, meet
environmental performance criteria developed or adopted by voluntary
consensus standards bodies consistent with section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (Public Law
104-113) and Office of Management and Budget Circular A-119).
* * * * *
PART 4--ADMINISTRATIVE MATTERS
0
3. Amend section 4.302 by revising paragraph (a) to read as follows:
4.302 Policy.
(a) Section 3(j) of Executive Order 13693 of March 19, 2015,
Planning for Federal Sustainability in the Next Decade, directs
agencies to reduce and prevent waste. Electronic commerce methods (see
4.502) and double-sided printing and copying are examples of best
practices for waste prevention.
* * * * *
PART 7--ACQUISITION PLANNING
0
4. Amend section 7.103 by revising paragraphs (p)(1) through (p)(3) to
read as follows:
7.103 Agency-head responsibilities.
* * * * *
(p) Ensuring that agency planners--
(1) Specify needs for uncoated printing and writing paper
containing 30 percent postconsumer recycled content or higher,
consistent with section 3(i)(v) of Executive Order 13693 of March 19,
2015, Planning for Federal Sustainability in the Next Decade;
(2) Comply with the policy in 11.002(d) regarding procurement of
sustainable products and services (as defined in 2.101);
(3) Comply with the Guiding Principles for Sustainable Federal and
Associated Instructions (Guiding Principles), for the design,
construction, renovation, repair, or deconstruction of Federal
buildings. The Guiding Principles can be accessed at https://www.wbdg.org/references/fhpsb.php; and
* * * * *
0
4. Amend section 7.105 by revising paragraph (b)(17) to read as
follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(17) Environmental and energy conservation objectives. Discuss--
(i) The applicable environmental and energy conservation objectives
associated with the acquisition (see part 23);
(ii) The applicability of an environmental assessment or
environmental impact statement (see 40 CFR 1502);
(iii) The proposed resolution of environmental issues;
(iv) Any environmentally-related requirements to be included in
solicitations and contracts (see 11.002 and 11.303); and
(v) The requirements for the acquisition or use of sustainable
products and services (as defined in 2.101). A compilation of the
Federal sustainability criteria for various products and services is
found on GSA's Green Procurement Compilation at https://www.sftool.gov/greenprocurement/. The EPA's recommendations for specifications,
standards or labels that can be used for purchasing sustainable
products and services are available at https://www.epa.gov/greenerproducts.
* * * * *
PART 11--DESCRIBING AGENCY NEEDS
0
5. Amend section 11.002 by revising paragraph (d)(1) and the
introductory text of paragraph (d)(2) to read as follows:
11.002 Policy.
* * * * *
(d)(1) Statutes and Executive orders identified in part 23 require
agencies to
[[Page 5495]]
acquire sustainable products and services (as defined in 2.101) to the
maximum extent practicable. To find sustainable products and services,
visit GSA's Green Procurement Compilation at https://www.sftool.gov/greenprocurement.
(2) Unless an exception applies and is documented by the requiring
activity, Executive agencies shall, to the maximum extent practicable,
require the use of sustainable products and services when--
* * * * *
0
6. Amend section 11.303 by removing paragraphs (a) and (b); and adding
a new introductory paragraph to read as follows:
11.303 Special requirements for paper.
When purchasing uncoated printing and writing paper (e.g., copier
paper, envelopes, etc.), or products printed on uncoated printing and
writing paper, agencies shall require that the paper contain at least
30 percent postconsumer recycled content or higher (Executive Order
13693 of March 19, 2015, Planning for Federal Sustainability in the
Next Decade).
0
7. Amend part 23 by revising the part heading to read as follows:
PART 23--ENVIRONMENT, ENERGY, OCCUPATIONAL SAFETY, AND DRUG-FREE
WORKPLACE
0
8. Revise section 23.000 to read as follows:
23.000 Scope.
This part prescribes acquisition policies and procedures supporting
the Government's program for ensuring a drug-free workplace, for
protecting and improving the quality of the environment, and to acquire
and foster markets for sustainable technologies, materials, products,
and services, including construction, (see GSA's Green Procurement
Compilation at https://sftool.gov/greenprocurement) and encouraging the
safe operations of vehicles by--
* * * * *
0
9. Amend section 23.001 by--
0
a. Adding, in alphabetical order, the definitions ``Active capture and
storage'', ``Alternative energy'', ``Clean energy'', ``Combined heat
and power'', and ``Fuel cell energy systems'';
0
b. Revising the definition ``Greenhouse gases''; and
0
c. Adding, in alphabetical order, the definitions ``Life-cycle cost'',
``Life-cycle cost effective'', ``Renewable electric energy'', ``Thermal
renewable energy technologies'', and ``Water consumption intensity''.
The additions and revision read as follows:
23.001 Definitions.
* * * * *
Active capture and storage means a set of technologies that
captures carbon dioxide from power plants, transports the captured
carbon dioxide to a sequestration well, and injects the carbon dioxide
into the sequestration well in a way that prevents the gas from
escaping from the well and back into the atmosphere. These technologies
are also referred to as carbon capture and storage technologies.
Alternative energy means energy generated from technologies and
approaches that advance renewable heat sources, including biomass,
solar thermal, geothermal, waste heat, and renewable combined heat and
power processes; combined heat and power; fuel cell energy systems; and
energy generation, where active capture and storage of carbon dioxide
emissions associated with that energy generation is verified.
Clean energy means renewable electric energy and alternative
energy.
Combined heat and power means systems that capture energy that is
normally lost in centralized power generation and convert that energy
to provide heating and cooling. They are also known as co-generation
systems.
* * * * *
Fuel cell energy systems means stationary or distributed generation
projects used for baseload power, backup power, power for remote
locations, and cogeneration. Stationary fuel cells typically use
natural gas, or a renewable energy equivalent such as biogas, to
produce either electricity or combined heat and electricity.
Greenhouse gases means carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons, nitrogen trifluoride, and sulfur
hexafluoride.
Life-cycle cost means the total cost to the Government of
acquiring, operating, supporting, and (if applicable) disposing of the
items being acquired.
Life-cycle cost-effective means that the life-cycle costs of a
product are estimated to be equal to or less than the base case (i.e.,
current or standard practice or product). In some cases, a life-cycle
cost-effective product may result in a higher up front cost with lower
operations or maintenance costs or longer life.
Renewable electric energy means energy produced by solar, wind,
biomass, landfill gas, ocean (including tidal, wave, current, and
thermal), geothermal, geothermal heat pumps, microturbines, municipal
solid waste, or new hydroelectric generation capacity achieved from
increased efficiency or additions of new capacity at an existing
hydroelectric project (Executive Order 13693 of March 19, 2015,
Planning for Federal Sustainability in the Next Decade).
Thermal renewable energy technologies means solar, wood, biomass,
and landfill gas systems that exclusively produce non-electric energy
(i.e., heating or cooling).
* * * * *
Water consumption intensity means water consumption per square foot
of building space.
23.002 [Reserved]
0
10. Remove and reserve section 23.002.
0
11. Add section 23.100 to read as follows:
23.100 Policy.
(a) This subpart prescribes the policies and procedures for the
acquisition of sustainable products and services. The Government's
policy is to build a clean energy economy that will sustain the
environment for generations to come. Federal leadership in sustainable
acquisition will continue to drive national greenhouse gas reductions
and support preparations for the impacts of climate change.
(b) Except as provided at 23.104 and 23.105 of this subpart, the
Government's policy on sustainable acquisition applies to--
(1) All acquisitions, including those using part 12 procedures and
those at or below the micro-purchase threshold; and
(2) Contractors operating Government buildings and vehicles.
Executive Order 13693 of March 19, 2015, Planning for Federal
Sustainability in the Next Decade, section 7(d), requires that leases
and contracts for lessor or contractor operation of Government-owned
buildings or vehicles facilitate the agency's compliance with the
Executive Order.
0
12. Amend section 23.101 by revising the first sentence of the
definition ``Contract action'' to read as follows:
23.101 Definition.
* * * * *
Contract action means any oral or written action, including task
and delivery orders, that results in the purchase, rent, or lease of
supplies or equipment, services, or construction using appropriated
dollars, including purchases below the micro-purchase threshold.
* * * * *
[[Page 5496]]
0
13. Revise section 23.102 to read as follows:
23.102 Authorities.
(a) Executive Order 13693 of March 19, 2015, Planning for Federal
Sustainability in the Next Decade.
(b) All of the authorities specified in subparts 23.2, 23.4, 23.7,
23.8, and 23.10.
0
14. Amend section 23.103 by--
0
a. Revising the section heading and paragraph (a); and
0
b. Removing paragraph (d).
The revisions read as follows:
23.103 Acquisition of sustainable products and services.
(a) Federal agencies shall advance sustainable acquisition by
ensuring that new contract actions for the supply of products and for
the acquisition of services (including construction) require
sustainable products and services (as defined in 2.101) to the maximum
extent practicable (see GSA's Green Procurement Compilation at https://www.sftool.gov/greenprocurement).
* * * * *
0
15. Revise section 23.104 to read as follows:
23.104 Exceptions.
(a) This subpart does not apply to the following acquisitions:
(1) Contracts performed outside of the United States, unless the
agency head determines that such application is in the interest of the
United States.
(2) Acquisition of sustainable products or services that are not
considered practicable due to one or more of the following conditions--
(i) A product or service cannot be acquired that meets reasonable
performance requirements;
(ii) A product or service cannot be acquired competitively within
the required delivery or performance schedule;
(iii) A product or service cannot be acquired at a reasonable
price, i.e., life-cycle cost-effective (see paragraph (b)); or
(iv) An ENERGY STAR[supreg] certified product or FEMP-designated
product is not life-cycle cost-effective (see section 23.204).
(b)(1) The price shall be deemed unreasonable when the total life-
cycle costs are significantly higher for the sustainable product or
service compared to the non-sustainable product or service.
(2) Life-cycle costs are determined by combining the purchase price
of a product or service with any net costs or savings revenues
generated from that product or service during its life.
(c) If at any point during the acquisition it is determined that a
contract action cannot comply with the sustainable requirements for one
of the reasons listed in paragraph (a)(2) of this section, the
contracting officer shall obtain the documented rationale from the
requiring activity and ensure that this documentation is maintained in
the contract file.
0
16. Add section 23.106 to read as follows:
23.106 Contract clause.
When purchasing sustainable products or services, except as
provided at 23.104 and 23.105, insert the clause at 52.223-XX,
Sustainable Products and Services Requirements, in solicitations and
contracts.
Subpart 23.2--Energy Efficient Products, Water Efficient Products
and Services, Renewable Electric Energy, and Alternative Energy
0
17. Revise subpart heading 23.2 as set forth above.
0
18. Amend section 23.201 by revising paragraphs (g) and (h) to read as
follows:
23.201 Authorities.
* * * * *
(g) Executive Order 13693 of March 19, 2015, Planning for Federal
Sustainability in the Next Decade.
(h) Section 438 of the Energy Independence and Security Act of 2007
(42 U.S.C. 17094).
0
19. Revise section 23.202 to read as follows:
23.202 Water efficient products and services.
Agencies shall improve water use efficiency and management,
including stormwater management by--
(a) Reducing potable water consumption intensity by purchasing
WaterSense[supreg] and other water efficient products and implementing
water efficient strategies;
(b) Purchasing and installing water meters and water loss
monitoring services; and
(c) Purchasing and installing appropriate green infrastructure
features on Federally owned property to help with stormwater and
wastewater management in accordance with section 438 of the Energy
Independence and Security Act of 2007 (42 U.S.C. 17094). (See https://www.epa.gov/greeningepa/technical-guidance-implementing-stormwater-runoff-requirements-federal-projects for additional information
regarding green infrastructure.)
0
20. Amend section 23.203 by revising paragraph (b)(2) to read as
follows:
23.203 Energy-efficient products.
* * * * *
(b) * * *
(2) FEMP at https://energy.gov/eere/femp/energy-and-water-efficient-products.
23.206 [Reserved]
0
21. Remove and reserve section 23.206.
0
22. Amend section 23.401 by revising paragraph (b)(2) to read as
follows:
23.401 Definitions.
* * * * *
(b) * * *
(2) For which USDA has provided purchasing recommendations
available at https://www.biopreferred.gov/BioPreferred/faces/Welcome.xhtml.
0
23. Amend section 23.402 by revising paragraphs (c) and (d); and
removing paragraph (e).
The revisions read as follows:
23.402 Authorities.
* * * * *
(c) The Energy Policy Act of 2005, Pub. L. 109-58.
(d) Executive Order 13693 of March 19, 2015, Planning for Federal
Sustainability in the Next Decade.
0
24. Amend section 23.404 by--
0
a. Removing from paragraph (a)(3)(iii) the word ``and'';
0
b. Redesignating paragraph (a)(3)(iv) as paragraph (a)(3)(v); and
0
c. Adding a new paragraph (a)(3)(iv).
The revision and addition read as follows:
23.404 Agency affirmative procurement programs.
(a) * * *
(3) * * *
(iv) For USDA-designated items only, provisions for reporting
quantities and types of biobased products purchased by the Federal
agency; and
* * * * *
23.405 [Amended]
0
25. Amend section 23.405 by removing from paragraph (a)(2) ``https://www.biopreferred.gov'' and adding ``https://www.biopreferred.gov/BioPreferred/'' in its place.
0
26. Amend section 23.406 by revising paragraphs (b) and (c); and
removing paragraph (e) to read as follows:
23.406 Solicitation provisions and contract clauses.
* * * * *
(b) Insert the clause at 52.223-2, Reporting of Biobased Products
Under Service and Construction Contracts, in service or construction
solicitations and contracts, unless the contract will not involve the
use of USDA-designated
[[Page 5497]]
items at https://www.biopreferred.gov/BioPreferred/ or 7 CFR part 3201.
(c) Except for the acquisition of commercially available off-the-
shelf items, insert the provision at 52.223-4, Recovered Material
Certification, in solicitations that require the delivery or specify
the use of EPA-designated items.
* * * * *
0
27. Revise 23.700 to read as follows:
23.700 Scope.
This subpart prescribes policies for acquiring environmentally
preferable products and services, including environmentally sustainable
electronic products.
23.701 [Reserved]
0
28. Remove and reserve section 23.701.
0
29. Amend section 23.702 by removing paragraphs (f) and (g); and adding
a new paragraph (f) to read as follows:
23.702 Authorities.
* * * * *
(f) Executive Order 13693 of March 19, 2015, Planning for Federal
Sustainability in the Next Decade.
0
30. Revise section 23.703 to read as follows:
23.703 Policy.
Agencies must--
(a) Purchase environmentally preferable products or services that--
(1) Meet or exceed specifications, standards, or labels recommended
by EPA (see https://www.epa.gov/greenerproducts/); or
(2) If no EPA recommendations are available for the product or
service the agency is procuring, meet environmental performance
criteria developed or adopted by voluntary consensus standards bodies
consistent with section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (Pub. L. 104-113) and the Office of Management
and Budget (OMB) Circular A-119; and
(b) Realize life-cycle cost savings.
0
31. Revise section 23.704 to read as follows:
23.704 Environmentally sustainable electronic products.
(a) Agencies shall procure environmentally sustainable electronic
products (as defined in 2.101), unless an exception in 23.104 or an
exemption in 23.105 applies. The Web site at https://www.epa.gov/greenerproducts/ identifies a registry of environmentally sustainable
products that meet the EPA's recommended specifications, standards, or
labels. The award of a contract to satisfy an agency's requirement for
an electronic product must be made to a contractor that offers products
currently listed on the registry.
(b) This section applies to acquisitions of electronic products to
be used in the United States, unless otherwise provided by agency
procedures. When acquiring electronic products to be used outside the
United States, agencies must use their best efforts to comply with this
section.
23.705 [Amended]
0
32. Amend section 23.705 by redesignating paragraph (a) as the
introductory paragraph; and removing paragraphs (b) through (d).
0
33. Revise section 23.901 to read as follows:
23.901 Authority.
Executive Order 13693 of March 19, 2015, Planning for Federal
Sustainability in the Next Decade.
0
34. Amend section 23.1001 by revising paragraph (c) and removing
paragraph (d).
The revision reads as follows:
23.1001 Authorities.
* * * * *
(c) Executive Order 13693 of March 19, 2015, Planning for Federal
Sustainability in the Next Decade.
0
35. Amend section 23.1004 by--
0
a. Revising paragraph (a)(2); and
0
b. Removing from paragraph (b), introductory text, ``E.O. 13423'' and
adding ``E.O. 13693'' in its place.
The revisions read as follows:
23.1004 Requirements.
(a) * * *
(1) * * *
(2) The toxic chemical and hazardous substance release and use
reduction goals of sections 3(j) and (7)(d) of Executive Order 13693.
* * * * *
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
36. Amend section 36.104 by revising paragraphs (b)(1) and (5) to read
as follows:
36.104 Policy.
* * * * *
(b) * * *
(1) Ensure that all new construction, major renovation, or repair
and alteration of Federal buildings complies with the Guiding
Principles for Sustainable Federal Buildings and Associated
Instructions (available at https://www.wbdg.org/references/fhpsb.php);
* * * * *
(5) Ensure pollution prevention and eliminate waste by diverting at
least 50 percent of construction and demolition materials and debris.
PART 39--ACQUISITION OF INFORMATION TECHNOLOGY
0
37. Amend section 39.101 by revising paragraph (a)(1)(ii); and adding
paragraph (a)(1)(v) to read as follows:
39.101 Policy.
(a)(1) * * *
(ii) Specifications, standards, or labels for environmentally
sustainable electronic products recommended by the U.S. Environmental
Protection Agency (see 23.704);
* * * * *
(v) Policies to prepare for climate change-related risks (such as
increased frequency of extreme weather events, increases in maximum
temperatures, and sea level rise), including risk to mission critical
communications, such as telecommunications and data centers.
* * * * *
0
38. Amend section 39.102 by revising paragraph (b) to read as follows:
39.102 Management of risk.
* * * * *
(b) Types of risk may include schedule risk, risk of technical
obsolescence, cost risk, risk implicit in a particular contract type,
technical feasibility, dependencies between a new project and other
projects or systems, the number of simultaneous high risk projects to
be monitored, funding availability, program management risk, and
projected impacts of climate change.
* * * * *
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
39. Amend section 42.302 by revising paragraph (a)(68)(ii) to read as
follows:
42.302 Contract administration functions.
(a) * * *
(68) * * *
(ii) Monitoring contractor compliance with specifications or other
contractual requirements requiring the delivery or use of sustainable
products and services (as defined in 2.101). This must occur as part of
the quality assurance procedures set forth in Part 46; and
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
40. Amend section 52.204-8 by--
0
a. Revising the date of the provision;
0
b. Removing from paragraph (c)(1)(xvi) ``Affirmative Procurement'' and
adding ``Reporting'' in its place.
[[Page 5498]]
The revision reads as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (Date)
* * * * *
0
41. Amend section 52.212-5 by--
0
a. Revising the date of the clause and paragraph (b)(40);
0
b. Removing paragraphs (b)(41) through (43); and
0
c. Redesignate paragraphs (b)(44) through (60) as paragraphs (b)(41)
through (b)(57), respectively.
The revisions read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Date)
* * * * *
(b) * * *
__(40) 52.223-XX Sustainable Products and Services Requirements
(Date) (E.O. 13693).
* * * * *
0
42. Amend section 52.213-4 by revising the date of the clause,
paragraphs (b)(1)(x) and (b)(1)(xiii) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (Date)
* * * * *
(b) * * *
(1) * * *
(x) 52.223-5, Pollution Prevention and Right-to-Know Information
(Date) (E.O. 13693) (Applies to services performed on Federal
facilities).
* * * * *
(xiii) 52.223-XX, Sustainable Products and Services Requirements
(Date) (E.O. 13693) (Applies to acquisitions for sustainable products
and services).
* * * * *
0
43. Amend section 52.223-1 by--
0
a. Revising the date of the provision; and
0
b. Removing from the provision ``(7 U.S.C. 8102(c)(3))'' and adding
``(7 U.S.C. 8102(a)(2)(F))'' in its place.
The revision reads as follows:
52.223-1 Biobased Product Certification.
* * * * *
Biobased Product Certification (Date)
* * * * *
0
44. Amend section 52.223-2 by revising the section heading, the date of
the clause, and the clause to read as follows:
52.223-2 Reporting of Biobased Products Under Service and Construction
Contracts.
* * * * *
Reporting of Biobased Products Under Service and Construction Contracts
(Date)
(a) Report to https://www.sam.gov, with a copy to the
Contracting Officer, on the product types and dollar value of any
USDA-designated biobased products purchased by the Contractor during
the previous Government fiscal year, between October 1 and September
30; and
(b) Submit this report no later than--
(1) October 31 of each year during contract performance; and
(2) At the end of contract performance.
(End of clause)
0
45. Amend section 52.223-5 by--
0
a. Revising the date on the clause;
0
b. Removing from paragraph (c), introductory text, ``all information''
and adding ``the following information as'' in its place;
0
c. Revising paragraph (c)(6);
0
d. Revising the date of Alternate I and paragraph (c)(7);
0
e. Revising the date of Alternate II and paragraph (c)(7).
The revisions read as follows:
52.223-5 Pollution Prevention and Right-to-Know Information.
* * * * *
Pollution Prevention and Right-to-Know Information (Date)
* * * * *
(c) * * *
(6) The toxic chemical and hazardous substance release and use
reduction goals of section 3(j) of Executive Order 13693.
* * * * *
Alternate I (Date). * * *
(c)(7) The facility environmental management system.
Alternate II (Date). * * *
(c)(7) The facility compliance audits.
0
46. Amend section 52.223-10 by--
0
a. Removing from the introductory paragraph ``23.705(a)'' and adding
``23.705'' in its place;
0
b. Revising the date of the clause;
0
c. Revising the first sentence of paragraph (b).
The revisions read as follows:
52.223-10 Waste Reduction Program.
* * * * *
Waste Reduction Program (Date)
* * * * *
(b) Consistent with the requirements of sections 3(j) and 7(d) of
Executive Order 13693, the Contractor shall establish a program to
promote cost-effective waste reduction in all operations and facilities
covered by this contract. * * *
* * * * *
52.223-13 thru 52.223-17 [Reserved]
0
47. Remove and reserve sections 52.223-13 thru 52.223-17.
0
48. Add section 52.223-XX to read as follows:
52.223-XX Sustainable Products and Services Requirements
As prescribed in 23.106, insert the following clause,
Sustainable Products and Services Requirements (Date)
(a) Definitions. As used in this clause--
Green Procurement Compilation, means a public Web site that
identifies Federal sustainable acquisition requirements and provides
other guidance for the purchase of sustainable products and
services.
Sustainable products and services means products and services,
including construction, that--
(1) Meet statutory mandates for purchasing--
(i) Recycled content products designated by the U.S.
Environmental Protection Agency (EPA) under the Comprehensive
Procurement Guidelines;
(ii) Energy and water efficient products such as ENERGY
STAR[supreg] certified and Federal Energy Management Program (FEMP)-
designated products identified by EPA and the U.S. Department of
Energy; and
(iii) Biobased content products meeting the content requirement
of the U.S. Department of Agriculture under the BioPreferred[supreg]
program;
(2) Are identified by EPA programs, including--
(i) Significant New Alternatives Policy (SNAP) chemicals or
other alternatives to 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;
(ii) WaterSense[supreg] certified products and services (water
efficient products);
(iii) Safer Choice Certified products (chemically intensive
products that contain safer ingredients); and
(iv) SmartWay[supreg] Transport partners and SmartWay[supreg]
products (fuel efficient products and services); or
(3) Are environmentally preferable products or services that--
(i) Meet or exceed specifications, standards, or labels
recommended by EPA, (see https://www.epa.gov/greenerproducts); or
(ii) Where there is no specification, standard, or label
recommended by EPA for a specific product or service category, meet
[[Page 5499]]
environmental performance criteria developed or adopted by voluntary
consensus standards bodies consistent with section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (Pub. L.
104-113) and Office of Management and Budget Circular A-119.
(b) Unless approved in writing by the Contracting Officer, in
the performance of this contract, the Contractor shall--
(1) Deliver, furnish for Government use;
(2) Incorporate into the construction of a public building or
public work; or
(3) Furnish for Contractor use at a Federally-controlled
facility sustainable products and services as specified in the
contract.
(c) Sustainable products and services must meet the applicable
standard, specifications, or other program requirements at the time
of submission of an offer or a quote.
(d) Visit the Green Procurement Compilation at https://www.sftool.gov/greenprocurement for a comprehensive list of Federal
Governmentwide sustainable product and service requirements.
(End of clause)
[FR Doc. 2017-00480 Filed 1-17-17; 8:45 am]
BILLING CODE 6820-EP-P
