Federal Acquisition Regulation: Sustainable Acquisition, 5490-5499 [2017-00480]

Download as PDF 5490 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: mstockstill on DSK3G9T082PROD with PROPOSALS § 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 VerDate Sep<11>2014 16:51 Jan 17, 2017 Jkt 241001 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: PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 Submit comments in response to FAR Case 2015–033 by any of the following methods: • Regulations.gov: http:// 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 http:// 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 E:\FR\FM\18JAP1.SGM 18JAP1 mstockstill on DSK3G9T082PROD with PROPOSALS Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules 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 VerDate Sep<11>2014 16:51 Jan 17, 2017 Jkt 241001 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 PO 00000 Frm 00061 Fmt 4702 Sfmt 4702 5491 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 E:\FR\FM\18JAP1.SGM 18JAP1 mstockstill on DSK3G9T082PROD with PROPOSALS 5492 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules 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 VerDate Sep<11>2014 16:51 Jan 17, 2017 Jkt 241001 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 PO 00000 Frm 00062 Fmt 4702 Sfmt 4702 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. E:\FR\FM\18JAP1.SGM 18JAP1 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules mstockstill on DSK3G9T082PROD with PROPOSALS 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 VerDate Sep<11>2014 16:51 Jan 17, 2017 Jkt 241001 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 PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 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: ■ E:\FR\FM\18JAP1.SGM 18JAP1 5494 mstockstill on DSK3G9T082PROD with PROPOSALS 2.101 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules 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 VerDate Sep<11>2014 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 PO 00000 Frm 00064 Fmt 4702 Sfmt 4702 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 E:\FR\FM\18JAP1.SGM 18JAP1 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules 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: ■ mstockstill on DSK3G9T082PROD with PROPOSALS 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’’. VerDate Sep<11>2014 16:51 Jan 17, 2017 Jkt 241001 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, PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 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. * * * * * E:\FR\FM\18JAP1.SGM 18JAP1 5496 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules 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: mstockstill on DSK3G9T082PROD with PROPOSALS 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: Jkt 241001 * * * * (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: PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 Energy-efficient products. * * * * * (b) * * * (2) FEMP at http://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 http://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) ‘‘http:// 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 E:\FR\FM\18JAP1.SGM 18JAP1 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules 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 Jkt 241001 [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 http://www.wbdg.org/references/ fhpsb.php); * * * * * (5) Ensure pollution prevention and eliminate waste by diverting at least 50 PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 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. ■ ■ ■ E:\FR\FM\18JAP1.SGM 18JAP1 5498 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Proposed Rules 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). * * * * mstockstill on DSK3G9T082PROD with PROPOSALS * * * * (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 * * 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: http:// 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 http://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 http:// 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 18JAP1

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]


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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.

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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: http://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 http://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 http://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 http://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) ``http://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 http://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