Federal Acquisition Regulation: Sustainable Procurement, 51672-51694 [2023-16012]
Download as PDF
<![CDATA[
51672
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12,
13, 15, 18, 23, 26, 36, 37, 39, 42, and
52
[FAR Case 2022–006, Docket No. 2022–
0006, Sequence No. 1]
RIN 9000–AO43
Federal Acquisition Regulation:
Sustainable Procurement
AGENCY:
I. Background
DoD, GSA, and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
restructure and update the regulations
to focus on current environmental and
sustainability matters and to implement
a requirement for agencies to procure
sustainable products and services to the
maximum extent practicable.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat Division at the address
shown below on or before October 2,
2023, to be considered in the formation
of the final rule.
ADDRESSES: Submit comments in
response to FAR Case 2022–006 to the
Federal eRulemaking portal at https://
www.regulations.gov by searching for
‘‘FAR Case 2022–006’’. Select the link
‘‘Comment Now’’ that corresponds with
‘‘FAR Case 2022–006’’. Follow the
instructions provided on the ‘‘Comment
Now’’ screen. Please include your name,
company name (if any), and ‘‘FAR Case
2022–006’’ on your attached document.
If your comment cannot be submitted
using https://www.regulations.gov, call
or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of
this document for alternate instructions.
Instructions: Please submit comments
only and cite ‘‘FAR Case 2022–006’’ in
all correspondence related to this case.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. Public comments
may be submitted as an individual, as
an organization, or anonymously (see
frequently asked questions at https://
www.regulations.gov/faq). To confirm
receipt of your comment(s), please
DoD, GSA, and NASA are proposing
to amend the FAR to restructure and
update FAR part 23 to focus on current
environmental and sustainability
matters and to implement a requirement
for agencies to procure sustainable
products and services to the maximum
extent practicable. On December 8,
2021, the President signed Executive
Order (E.O.) 14057, Catalyzing Clean
Energy Industries and Jobs Through
Federal Sustainability. Section 208(a)
directs agencies to reduce emissions,
promote environmental stewardship,
support resilient supply chains, drive
innovation, incentivize markets for
sustainable products and services,
purchase sustainable products and
services in accordance with relevant
statutory requirements, and, to the
maximum extent practicable, purchase
sustainable products and services
identified or recommended by the
Environmental Protection Agency
(EPA). The Executive Office of the
President’s Office of Management and
Budget (OMB), Council on
Environmental Quality (CEQ), and
Climate Policy Office jointly issued
Memorandum M–22–06 on the same
date to provide direction for agency
compliance with the E.O. Paragraph G
of section I of the memorandum
reiterates the requirement to purchase,
to the maximum extent practicable and
after meeting statutory mandates,
sustainable products and services
identified or recommended by EPA. The
relevant purchasing requirements
established by statute, as indicated in
that memorandum, are for the following
types of products:
• Products containing recovered
material identified by EPA’s
Comprehensive Procurement Guideline
Program;
• Biobased products in categories
designated by the Department of
Agriculture (USDA);
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
SUMMARY:
ddrumheller on DSK120RN23PROD with PROPOSALS3
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms.
Jennifer Hawes, Procurement Analyst, at
202–255–9194 or by email at
jennifer.hawes@gsa.gov, for clarification
of content. For information pertaining to
status, publication schedules, or
alternate instructions for submitting
comments if https://
www.regulations.gov cannot be used,
contact the Regulatory Secretariat
Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAR
Case 2022–006.
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
PO 00000
Frm 00002
Fmt 4701
Sfmt 4702
• Energy efficient products certified
by ENERGY STAR® and energy and
water efficient products designated by
the Department of Energy Federal
Energy Management Program (DOE–
FEMP); and
• Products made with or containing
acceptable alternatives to ozonedepleting substances listed by EPA’s
Significant New Alternatives Policy
(SNAP) program.
These statutory purchasing programs
are currently implemented in FAR part
23, especially in subparts 23.2, 23.4, and
23.8.
The required EPA programs, as listed
in Memorandum M–22–06, that identify
sustainable products and services
include: WaterSense®; Safer Choice;
SmartWay Transport partners and
SmartWay products; and EPA
Recommendations of Specifications,
Standards, and Ecolabels for Federal
Purchasing. The requirement to procure
these types of environmentally
preferable products and services are
currently implemented at FAR subpart
23.7. Paragraph (b)(1) of FAR section
23.703 directs agencies to employ
acquisition strategies that maximize the
utilization of environmentally
preferable products and services (based
on EPA-issued guidance). This subpart
also currently includes the requirement
to procure environmentally preferable
products and Electronic Product
Environmental Assessment Tool
(EPEAT®)-registered products, which
are examples of EPA Recommendations
of Specifications, Standards, and
Ecolabels for Federal Purchasing.
In August 2022, CEQ issued
Implementing Instructions for E.O.
14057. Section 4.6 of the instructions
reiterates the requirement to first ensure
compliance with statutory purchasing
programs and then ensure procurement
of products and services identified by
the required EPA programs in all
contract actions and purchases. It also
directed prioritization of multi-attribute
products and services that meet at least
one statutory purchasing program and
one or more of the non-statutory EPA
programs. The instructions also
delineate when it is considered not
practicable to procure sustainable
products and services and provide a
listing of helpful resources for
identifying and understanding
sustainable products and services.
The CEQ implementing instructions
provide additional direction as it relates
to Federal facility requirements, such as
goals for pollution prevention and waste
diversion and requirements for waste
reduction. The instructions also provide
direction for certain construction and
modernization projects to meet and
E:\FR\FM\03AUP3.SGM
03AUP3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
(where practicable) exceed the CEQ’s
Guiding Principles for Sustainable
Federal Buildings and Associated
Instructions (Guiding Principles)
(available at https://
www.sustainability.gov/pdfs/guiding_
principles_for_sustainable_federal_
buildings.pdf).
A. FAR Part 23 Restructuring
ddrumheller on DSK120RN23PROD with PROPOSALS3
II. Discussion and Analysis
In addition to implementing the
requirements in E.O. 14057 and the
associated implementing instructions,
DoD, GSA, and NASA are using this
opportunity to restructure and
streamline FAR part 23. As discussed in
section II.A. of this preamble, under this
effort, FAR part 23 is proposed to be
amended to accomplish the following:
• Dedicate FAR part 23 to
environmental matters.
• Consolidate purchasing programs
requirements.
• Consolidate requirements related to
hazardous and radioactive material.
• Consolidate Federal facility
requirements.
DoD, GSA, and NASA are proposing
to implement the requirements of E.O.
14057, Memorandum M–22–06, and the
CEQ E.O. 14057 implementing
instructions related to sustainable
products and services by consolidating
them at FAR subpart 23.1 (see
discussion in section II.B. of this
preamble). This revised subpart will
address both statutory and EPA
purchasing programs, except for
SmartWay Program requirements, which
will be considered under a separate FAR
rulemaking. The subpart includes the
proposed policy and procedures for
purchasing and prioritizing sustainable
products and services, to include
requirements for agency programs,
exceptions, exemptions, and a new
omnibus contract clause.
DoD, GSA, and NASA are also
proposing additional updates to
requirements related to acquisition
planning, special requirements for
paper, waste reduction, construction
and architect-engineer contracts, and
information technology contracts to
implement E.O. 14057 and the related
CEQ implementing instructions. Several
of these proposed changes update
requirements established under an
interim rule published under FAR Case
2010–001 (see 76 FR 31395, May 31,
2011) to align with current requirements
under E.O. 14057. Any final rule
resulting from this proposed rule will
finalize the interim rule.
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
1. Dedicate FAR Part 23 to the
Environment, Sustainable Acquisition,
and Material Safety
In order to dedicate part 23 to
environmental matters, sustainable
acquisition, and material safety, DoD,
GSA, and NASA are proposing to
transfer the following two subparts to
FAR part 26, Other Socioeconomic
Programs:
• FAR subpart 23.5, Drug-Free
Workplace.
• FAR subpart 23.11, Encouraging
Contractor Policies to Ban Text
Messaging While Driving.
This proposed rule does not propose
any changes to the content of subpart
23.5 or 23.11, except to renumber the
sections to 26.5 and 26.6, respectively,
and to move the clause prescription
section for Drug-Free Workplace to the
end of its subpart. The associated
clauses at FAR 52.223–6, Drug-Free
Workplace, and 52.223–18, Encouraging
Contractor Policies to Ban Text
Messaging While Driving, are also
proposed to be renumbered as FAR
clause 52.226–XX and 52.226–YY,
respectively, to associate these clauses
with FAR part 26. Conforming changes
are proposed throughout the FAR to
update cross-references.
2. Consolidate Purchasing Program
Requirements
DoD, GSA, and NASA are proposing
to consolidate purchasing program
requirements into a single subpart at
FAR 23.1, to be titled ‘‘Sustainable
Products and Services.’’ This subpart
will include overarching policy and
procedures to implement E.O. 14057
requirements for purchasing sustainable
products and services (see discussion in
section II.B. of this preamble) and will
include two new sections to outline
existing statutory purchasing programs
and required EPA purchasing programs
(FAR sections 23.107 and 23.108,
respectively). Existing content related to
statutory purchasing programs in the
following FAR subparts is proposed to
be transferred to and streamlined in the
new section at FAR 23.107, titled
‘‘Statutory purchasing programs’’:
• FAR subpart 23.2, Energy and
Water Efficiency and Renewable Energy.
• FAR subpart 23.4, Recovered
Materials and Biobased Products.
• FAR subpart 23.8, Ozone-Depleting
Substances and Greenhouse Gases.
The prescriptions for the following
provisions and clauses associated with
these subparts are transferred to FAR
23.109 organized under headings
associated with the particular statutory
purchasing programs:
PO 00000
Frm 00003
Fmt 4701
Sfmt 4702
51673
• FAR provision 52.223–4, Recovered
Material Certification.
• FAR clause 52.223–9, Estimate of
Percentage of Recovered Material
Content for EPA-designated Items.
• FAR provision 52.223–1, Biobased
Product Certification,
• FAR clause 52.223–2, Reporting of
Biobased Products Under Service and
Construction Contracts.
• FAR clause 52.223–11, OzoneDepleting Substances and High Global
Warming Potential Hydrofluorocarbons.
• FAR clause 52.223–12,
Maintenance, Service, Repair, or
Disposal of Refrigeration Equipment and
Air Conditioners.
• FAR clause 52.223–20, Aerosols.
• FAR clause 52.223–21, Foams.
Changes to the content of these
provisions and clauses, which
implement various statutory
certification and reporting requirements,
are discussed under section II.B.6. of
this preamble. The prescriptions for the
clauses at FAR 52.223–15, Energy
Efficiency in Energy-Consuming
Products, and FAR 52.223–17,
Affirmative Procurement of EPAdesignated Items in Service and
Construction Contracts, are not
transferred to 23.109; these clauses are
proposed to be removed and reserved
(also addressed in section II.B.6. of this
preamble).
The requirement to procure
environmentally preferable products
and EPEAT®-registered products
currently implemented at FAR subpart
23.7 is proposed to be removed and
replaced by the requirement to procure
products and services that meet EPA
Recommendations of Specifications,
Standards, and Ecolabels in the new
section at FAR 23.108–3. As discussed
in section II.B.6. of this preamble, since
EPEAT is one of EPA’s
recommendations, the following clauses
associated with EPEAT and any
alternates to these clauses are proposed
to be removed and reserved:
• FAR 52.223–13, Acquisition of
EPEAT®-Registered Imaging Equipment.
• FAR 52.223–14, Acquisition of
EPEAT®-Registered Televisions.
• FAR 52.223–16, Acquisition of
EPEAT®-Registered Personal Computer
Products.
As a result of this consolidation, FAR
subpart 23.2 will be dedicated to energy
savings performance contracts, FAR
subpart 23.4 will be repurposed to
address Federal facility requirements
(see discussion in section II.A.4 of this
preamble), FAR subpart 23.7 will be
removed, and FAR subpart 23.8 will be
dedicated to greenhouse gas emissions.
There are no proposed changes to the
remaining content in FAR subpart 23.2
E:\FR\FM\03AUP3.SGM
03AUP3
51674
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
3. Consolidate Hazardous and
Radioactive Material Requirements
have proposed changes to the
greenhouse gas emissions disclosure
requirements in subpart 23.8 under a
separate proposed rule (see FAR case
2021–015, Disclosure of Greenhouse Gas
Emissions and Climate-related Financial
Risk, published 87 FR 68312, November
14, 2022). Conforming changes are
proposed throughout the FAR to update
cross-references.
To further streamline FAR part 23,
DoD, GSA, and NASA are proposing to
consolidate the content of the following
subparts in FAR subpart 23.3 under the
new title ‘‘Hazardous Material
Identification, Material Safety Data, and
Notice of Radioactive Materials’’:
• FAR subpart 23.3, Hazardous
Material Identification and Material
Safety Data.
• FAR subpart 23.6, Notice of
Radioactive Material.
This proposed rule does not include
any proposed changes to the content of
subpart 23.3 or 23.6, except to renumber
the sections and paragraphs. Note,
however, that DoD, GSA, and NASA
4. Consolidate Federal Facility
Requirements
DoD, GSA, and NASA are proposing
to consolidate the following content
related to Federal facilities in FAR
subpart 23.4:
• FAR subpart 23.10, Federal
Compliance With Right-To-Know Laws
and Pollution Prevention Requirements.
• FAR subpart 23.9, Contractor
Compliance with Environmental
Management Systems.
• FAR section 23.705 prescription for
the clause at FAR 52.223–10, Waste
Reduction Program.
Proposed changes to these subparts
and associated clauses are described in
related to energy savings performance
contracts or subpart 23.8 related to
greenhouse gas emissions disclosures,
except to renumber the sections and
paragraphs. Conforming changes are
proposed throughout the FAR to update
cross-references.
section II.C.2. of this preamble.
Conforming changes are proposed
throughout the FAR to update crossreferences.
5. Derivation and Distribution Tables
Derivation and distribution tables are
provided below to illustrate at the
subpart level where content is derived
from and where content will be
distributed to as a result of this
proposed rule. A presentation
illustrating the overarching changes at
the part/subpart level and more detailed
tables illustrating changes at the
section/paragraph level are provided as
supplemental documents to this
proposed rule. To access the
presentation and tables, go to https://
www.regulations.gov, search for ‘‘FAR
Case 2022–006,’’ click ‘‘Open Docket,’’
and view ‘‘Supporting Documents’’.
The following derivation table
illustrates where the contents in the
proposed subparts in FAR parts 23 and
26 are derived from:
DERIVATION TABLE
Proposed FAR subpart
Old FAR subpart
23.1
Sustainable Products and Services .......
23.2
Energy Savings Performance Contracts
23.3 Hazardous Material Identification, Material Safety Data, and Notice of Radioactive
Materials.
23.4 Pollution Prevention, Environmental
Management Systems, and Waste Reduction.
23.8 Greenhouse Gas Emissions ..................
26.5 Drug-Free Workplace .............................
26.6 Encouraging Contractor Policies to Ban
Text Messaging While Driving.
The following distribution table
illustrates where the current FAR part
23.1 Sustainable Acquisition Policy.
23.2 Energy and Water Efficiency and Renewable Energy (Content related to energy-efficient
products only).
23.4 Use of Recovered Materials and Biobased Products.
23.8 Ozone-Depleting Substances and Greenhouse Gases (Content related to ozone-depleting substances only).
23.2 Energy and Water Efficiency and Renewable Energy (Content related to energy-savings
performance contracts only).
23.3 Hazardous Material Identification and Material Safety Data.
23.6 Notice of Radioactive Material.
23.9 Contractor Compliance with Environmental Management Systems.
23.10 Federal Compliance With Right-To-Know Laws and Pollution Prevention Requirements.
23.8
gas
23.5
23.11
Ozone-Depleting Substances and Greenhouse Gases (Content related to greenhouse
emission disclosures only).
Drug-Free Workplace.
Encouraging Contractor Policies to Ban Text Messaging While Driving.
23 subparts are distributed under this
proposed rule:
DISTRIBUTION TABLE
ddrumheller on DSK120RN23PROD with PROPOSALS3
Old FAR subpart
New FAR subpart or section
23.1 Sustainable Acquisition Policy ...............
23.2 Energy and Water Efficiency and Renewable Energy.
23.3 Hazardous Material Identification and
Material Safety Data.
23.4 Use of Recovered Materials and
Biobased Products.
23.5 Drug-Free Workplace .............................
23.6 Notice of Radioactive Material ...............
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
23.1 Sustainable Products and Services.
23.107–3 Energy-consuming products.
23.2 Energy Savings Performance Contracts.
23.3 Hazardous Material Identification, Material Safety Data, and Notice of Radioactive Materials.
23.107–1 Products containing recovered materials.
23.107–2 Biobased products.
26.5 Drug-Free Workplace.
23.3 Hazardous Material Identification, Material Safety Data, and Notice of Radioactive Materials.
PO 00000
Frm 00004
Fmt 4701
Sfmt 4702
E:\FR\FM\03AUP3.SGM
03AUP3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
51675
DISTRIBUTION TABLE—Continued
Old FAR subpart
New FAR subpart or section
23.7 Contracting for Environmentally Preferable Products and Services.
23.8 Ozone-Depleting Substances and
Greenhouse Gases.
23.108–3 Products and services that are subject to EPA Recommendations of Specifications,
Standards, and Ecolabels.
23.107–4 Products that contain, use, or are manufactured with ozone-depleting substances or
products that contain or use high global warming potential hydrofluorocarbons.
23.8 Greenhouse Gas Emissions.
23.4 Pollution Prevention, Environmental Management Systems, and Waste Reduction.
23.9 Contractor Compliance with Environmental Management Systems.
23.10 Federal Compliance With Right-ToKnow Laws and Pollution Prevention Requirements.
23.11 Encouraging Contractor Policies to
Ban Text Messaging While Driving.
ddrumheller on DSK120RN23PROD with PROPOSALS3
B. Sustainable Products and Services
The following is a summary of the
proposed changes to FAR subpart 23.1,
to be titled ‘‘Sustainable Products and
Services,’’ to implement requirements
for purchasing sustainable products and
services in E.O. 14057, Memorandum
M–22–06, and the CEQ implementing
instructions.
1. Definitions
A definition of ‘‘sustainable products
and services’’ is proposed in FAR 2.101
and is applicable wherever the term is
used in the FAR. The term is defined as
products and services that are subject to
and meet statutory purchasing program
requirements or other EPA purchasing
program requirements. For the statutory
purchasing programs, the definition
references the following types of
products and includes a reference to the
source statute, the lead agency
implementing regulations, and the
program website:
• Products containing recovered
material designated by the U.S.
Environmental Protection Agency (EPA)
under the Comprehensive Procurement
Guidelines.
• Energy efficient products that are
ENERGY STAR® certified or Federal
Energy Management Program (FEMP)designated products.
• Biobased products meeting the
USDA content requirements under the
BioPreferred® program.
• Acceptable chemicals, products,
and manufacturing processes listed
under EPA’s SNAP program, which
ensures a safe and smooth transition
away from substances that contribute to
the depletion of stratospheric ozone.
The definition identifies the following
required EPA purchasing programs and
provides the link to each associated
program website:
• WaterSense® labeled (water
efficient) products and services.
• Safer Choice-certified products
(products that contain safer chemical
ingredients).
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
23.4
Pollution Prevention, Environmental Management Systems, and Waste Reduction.
26.6
Encouraging Contractor Policies to Ban Text Messaging While Driving.
• Products and services that meet or
exceed EPA Recommendations of
Specifications, Standards, and
Ecolabels.
As a result of the proposed changes
described in section II.A. of this
preamble, most of the definitions
associated with the existing statutory
purchasing programs are consolidated
in FAR section 23.101, since these terms
will only be used in FAR subpart 23.1.
This includes the definitions of ‘‘EPAdesignated item,’’ ‘‘global-warming
potential,’’ ‘‘high global warming
potential,’’ ‘‘hydrofluorocarbons,’’ and
‘‘ozone-depleting substances.’’ The
definition of the term ‘‘USDAdesignated item’’ is also transferred, but
the term itself is changed to ‘‘USDAdesignated product category’’ to better
align with USDA program requirements.
The definitions of ‘‘biobased product’’
and ‘‘recovered material’’ in FAR 2.101
are also relevant to this revised subpart,
but will remain in FAR part 2 since
these terms are used throughout the
FAR. Changes are proposed to the
definition of ‘‘biobased product’’ to
implement section 9002 of the
Agricultural Act of 2014 (Pub. L. 113–
79) and section 9001 of the Agriculture
Improvement Act of 2018 (Pub. L. 115–
334), which revised the definition of
‘‘biobased product’’ (see 7 U.S.C. 8101)
for the purposes of the biobased
procurement program. Changes are also
proposed to the definition of ‘‘recovered
material’’ to remove a pointer to an
alternative definition applicable to FAR
subpart 11.3 (see discussion in section
II.C.1. of this preamble) and to add the
statutory citation for the definition.
In addition, this rule proposes moving
the definition of ‘‘United States’’ from
FAR section 23.001 to FAR section
23.101. This change will make the
definition applicable only in FAR
subpart 23.1 where the statutory
requirements for purchasing sustainable
products and services are being
consolidated. The definition is revised
to cite Memorandum M–22–06 as the
PO 00000
Frm 00005
Fmt 4701
Sfmt 4702
source of the definition and to clarify
the definition is for the term when it is
used in a geographical sense. Paragraph
(9) of the definition of ‘‘United States’’
in FAR section 2.101 (the definition that
is applicable throughout the FAR,
except as specified) will also be revised
to point to FAR section 23.101 as the
source for the definition that is
applicable to FAR subpart 23.1.
The existing definition of ‘‘contract
action’’ currently in FAR section 23.101
remains. This definition, however, is
revised to align with Memorandum M–
22–06 by removing reference to any
non-FAR based agreements. The list of
excluded actions that are not subject to
the FAR is not necessary, since
definitions in the FAR are only
applicable to actions that are subject to
the FAR.
2. Scope and Authorities
Per FAR 23.100, Scope, the proposed
subpart provides policies and
procedures for the procurement of
sustainable products and services. The
requirements of FAR subpart 23.1 are
applicable to all contract actions,
including those using FAR part 12
procedures for the acquisition of
commercial products, including
commercially available off-the-shelf
(COTS) items, and commercial services
and acquisitions valued at or below the
micro-purchase threshold. FAR section
23.102 is revised to cite E.O. 14057,
Memorandum M–22–06, and the CEQ
implementing instructions, as well as
the authorities for the existing statutory
purchasing programs to be consolidated
at FAR section 23.107.
3. Policy
FAR 23.103(a) outlines the policy that
agencies shall procure sustainable
products and services to the maximum
extent practicable. Procuring sustainable
products and services will be
considered practicable, unless an
agency cannot: (1) competitively acquire
a product or service within a reasonable
E:\FR\FM\03AUP3.SGM
03AUP3
ddrumheller on DSK120RN23PROD with PROPOSALS3
51676
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
performance schedule; (2) acquire a
product or service that meets reasonable
performance requirements; or (3)
acquire a product or service at a
reasonable price. For ENERGY STAR®
or FEMP-designated products, a price is
reasonable if it is cost-effective over the
life of the product taking energy cost
savings into account. This standard
maintains existing exceptions to the
statutory mandates to purchase certain
energy-efficient products, biobased
products, and products containing
recovered material. This rule proposes
to apply this standard of what is
‘‘practicable’’ to the other categories of
sustainable products and services.
FAR 23.103(b) establishes
requirements for prioritizing sustainable
products and services. Specifically,
when procuring sustainable products
and services, agencies shall ensure
compliance with all applicable statutory
purchasing programs (consolidated in
FAR section 23.107) and prioritize
multi-attribute sustainable products and
services, i.e., that meet the requirements
of both a statutory purchasing program
and a required EPA purchasing
program. The prioritization also notes
that contracting officers are not required
to procure products and services that
meet the required EPA purchasing
programs (see programs listed in section
23.108 of subpart 23.1) when doing so
would conflict with statutes, Executive
orders, or regulations that impose
domestic manufacturing and content
requirements.
Finally, this proposed rule will revise
the description of required products
under contract actions for services that
will be subject to the new policy; FAR
23.103(c) will describe such products as
those that are: (1) delivered to the
Government during performance; (2)
acquired by the contractor for use in
performing services under a
Government contract where the cost of
the products is a direct cost to a
Government contract; or (3) furnished
by the contractor for use by the
Government, including use at
Government-owned contractor-operated
facilities. Paragraph (c)(2) reflects a
change from the existing description of
products acquired by the contractor for
use in performing services at a Federally
controlled facility to ensure products
used in service contracts that are a
direct cost to the Government are
sustainable products. In addition, this
description clarifies that products
provided by the contractor during
performance at Government-owned
contractor-operated facilities are
expected to be sustainable products.
These changes are necessary to ensure
that the Government procures
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
sustainable products and services to the
maximum extent practicable pursuant to
E.O. 14057, Memorandum M–22–06,
and the CEQ implementing instructions.
4. Procedures
General procedures to carry out the
new policy are provided at FAR 23.104.
Procuring sustainable products and
services is generally considered
practicable, but the contracting officer
may consider a procurement not
practicable based on a written
justification from the requirements
official. At FAR section 23.105, the rule
will also continue to provide for certain
exceptions, such as for weapon systems
and contracts performed outside of the
United States, unless the agency head
determines that such application is in
the interest of the United States, and
other existing exceptions provided by
statute. The proposed exemptions at
FAR 23.106 are revised to align with the
exemption authority provided in section
602 of E.O. 14057 to allow agency heads
to exempt certain activities and
acquisitions. The exemptions also allow
the Director of National Intelligence to
exempt certain intelligence activities.
Some agency head exemptions require
written notification to the Chair of the
CEQ. Finally, a proposed exemption is
included at FAR 23.106 where an
agency head determines the supplies or
services are to be used to facilitate
defense against or recovery from cyber,
nuclear, biological, chemical, or
radiological attack; to facilitate
provision of international disaster
assistance; or to support response to an
emergency or major disaster. In such
circumstances, the agency head
determination serves as the written
justification, and the contracting officer
is encouraged, but not required to
procure sustainable products and
services.
When there is a written justification
that it is not practicable to procure
sustainable products or services or an
exception or exemption applies, and
only some of the potential sustainable
products and services are covered by the
justification, exception, or exemption,
the contracting officer must ensure that
the solicitation and contract identify
any sustainable products or services that
are not subject to the requirements of
FAR subpart 23.1 and the associated
clause at FAR 52.223–XX, Sustainable
Products and Services.
5. Purchasing Program Requirements
The specific requirements and
resources associated with the
purchasing programs will be
consolidated in sections 23.107 and
23.108. FAR sections 23.107–1 through
PO 00000
Frm 00006
Fmt 4701
Sfmt 4702
23.107–4 will address the existing
requirements for the four statutory
purchasing programs for: products
containing recovered materials;
biobased products; energy-consuming
and water-consuming products; and
products that contain, use, or are
manufactured with ozone-depleting
substances and products that contain or
use high global warming potential
hydrofluorocarbons. Within these
sections are summaries of the
overarching programs, references to
statutory authority and lead agency
implementing regulations, agency
program requirements, any special
procedures for contracting officers, and
web addresses for primary program
resources and information. FAR sections
23.108–1 through 23.108–3 will address
the required EPA purchasing programs:
water efficient products; chemicallyintensive products; and products and
services that are subject to EPA
Recommendations of Specifications,
Standards, and Ecolabels. Each section
describes the EPA program and provides
web addresses for access to additional
information about and resources for the
programs.
6. Provisions and Clauses
FAR 23.109(a) prescribes a new clause
at FAR 52.223–XX, Sustainable
Products and Services, for use in all
solicitations and contracts unless there
is a written justification that it is not
practicable to procure sustainable
products and services, or an authorized
exception or exemption applies, and the
scope of the justification, exception, or
exemption covers all potential
sustainable products and services under
a contract.
This clause directs contractors to
deliver and furnish sustainable products
and services for Government use,
including use at Government-owned
contractor-operated facilities;
incorporate sustainable products and
services into the construction of a
public building or public works; and
furnish sustainable products and
services for contractor use in performing
services under the contract, where the
cost of the products is a direct cost to
the contract (versus costs that are
normally applied to a contractor’s
general and administrative expenses or
indirect costs). However, the contractor
is not required to provide sustainable
products or services where the
contracting officer has identified in the
solicitation that a certain product or
service is not subject to the clause. The
clause provides direction to the
contractor on how to prioritize statutory
and multi-attribute sustainable products
and services and refers the contractor to
E:\FR\FM\03AUP3.SGM
03AUP3
ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
the Green Procurement Compilation
(available at https://sftool.gov/
greenprocurement) as a resource that
can be reviewed for a comprehensive
list of sustainable products and services
and other related sustainability
guidance.
As discussed in section III. of this
preamble, this new omnibus clause is
included in the clause at FAR 52.212–
5, Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial
Products and Commercial Services, and
the clause at FAR 52.213–4, Terms and
Conditions—Simplified Acquisitions
(Other Than Commercial Products and
Commercial Services). In the clause at
FAR 52.212–5, the contracting officer
will check the box next to FAR clause
52.223–XX to show that it applies to
acquisition of commercial products and
commercial services; this will be the
case unless there is a written
justification, exception, or exemption
that covers all potential sustainable
products and services in an acquisition.
For simplified acquisitions, a new
paragraph proposed at FAR 13.302–5
directs the contracting officer to remove
FAR clause 52.223–XX from the clause
at FAR 52.213–4 when there is a written
justification, exception, or exemption
that covers all potential sustainable
products and services in an acquisition.
As mentioned in section II.A.2. of this
preamble, several of the existing
prescriptions for the provisions and
clauses associated with statutory
purchasing programs are transferred to
FAR section 23.109:
• Paragraph (b) of this section
provides the existing prescriptions for
the provision at FAR 52.223–4 and the
clause at FAR 52.223–9 associated with
EPA-designated items.
• Paragraph (c) of this section
provides the existing prescriptions for
the provision at FAR 52.223–1 and the
clause at FAR 52.223–2 related to
biobased products in USDA-designated
product categories.
• Paragraph (d) of this section,
provides the existing prescriptions for
the clauses at FAR 52.223–11, 52.223–
12, 52.223–20, and 52.223–21 related to
products containing ozone-depleting
substances and hydrofluorocarbons.
Except for FAR provision 52.223–1,
there are no proposed changes to the
existing prescriptions for these
provisions and clauses, except to
relocate content to the new consolidated
section. The prescription for FAR
52.223–1, Biobased Product
Certification, is revised to highlight an
existing categorical exception for certain
biobased products (see FAR 23.105(d)).
Based on this exception, certification is
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
not required for a solicitation that
includes biobased products to be used
in military equipment (products or
systems designed or procured for
combat or combat-related missions),
spacecraft systems, or launch support
equipment.
There are no substantive changes
proposed to the content of provision
FAR 52.223–1, except to update the
statutory references. Changes are
proposed to the clause at FAR 52.223–
2, to include a title change, the addition
of defined terms, and removal of
purchasing language that is now
covered by the omnibus clause at FAR
52.223–XX. As a result, this clause will
focus on the existing reporting
requirements for biobased products in
USDA-designated products, which are
unchanged as a result of this proposed
rule.
Changes are also proposed in FAR
clauses 52.223–11 and 52.223–12 to
remove the requirements to track and
report annually in the System for Award
Management the amount of
hydrofluorocarbon contained in, added
to, or taken out of equipment or
appliances under a contract. While the
underlying requirement for alternatives
to higher global warming potential
hydrofluorocarbons remains in the FAR,
the Government is looking towards
other greenhouse gas management and
tracking efforts.
While there is no change to the
prescription for Alternate I of FAR
clause 52.223–9, Estimate of Percentage
of Recovered Material Content for EPADesignated Items, this alternate is
proposed for removal from the list of
annual representations and
certifications at FAR 4.1202 and in the
provision at FAR 52.204–8, Annual
Representations and Certifications. The
alternate requires a contractor employee
to certify that (1) they are an officer or
employee responsible for the
performance of the contract and (2) that
the percentage of recovered material
content for EPA-designated items met
the applicable contract specifications or
other contractual requirements. This
certification should occur at the end of
contract performance, not at the entity
level.
The clauses at FAR 52.223–15, Energy
Efficiency in Energy-Consuming
Products, and FAR 52.223–17,
Affirmative Procurement of EPAdesignated Items in Service and
Construction Contracts, are proposed to
be removed and reserved. These clauses
direct contractors to provide in the
performance of the contract energy
efficient products or products
containing recovered material content
that are EPA-designated items. Both
PO 00000
Frm 00007
Fmt 4701
Sfmt 4702
51677
clauses are considered subsumed by the
new omnibus clause at FAR 52.223–XX,
which directs contractors to provide
sustainable products and services in the
performance of the contract, including
ENERGY STAR® products, FEMPdesignated products, and products
containing recovered material
designated by the EPA.
As mentioned in section II.A.2 of this
preamble, all of the clauses associated
with EPEAT® requirements and their
associated prescription in FAR subpart
23.7 are proposed to be removed and
reserved. These clauses are also no
longer necessary, since the requirement
to procure products and services that
meet EPA Recommendations of
Specifications, Standards, and Ecolabels
is addressed in the new omnibus clause
at FAR 52.223–XX. As discussed in
section II.A.2. of this preamble, EPEAT®
is one of EPA’s Recommendations of
Specifications, Standards, and
Ecolabels.
7. Cross-References
This proposed rule will also update
cross-references throughout the FAR to
the requirements now consolidated in
FAR subpart 23.1. Specifically, the
listings of various purchasing programs
in the following FAR sections are
proposed to be replaced with a crossreference to requirements related to the
procurement of sustainable products
and services (as defined in 2.101) in
accordance with FAR subpart 23.1:
• FAR 7.103(p)(1) regarding
acquisition planning requirements.
• FAR 11.002(d)(1) and (2) regarding
describing agency needs.
• FAR 13.201(f) regarding acquisition
at or below the micro-purchase
threshold.
• FAR 42.302(a)(68)(ii) regarding
contract administration requirements.
In addition, a revision is proposed at
FAR 37.102(i) to change the crossreference from FAR part 23 to FAR
subpart 23.1. A revision is also
proposed at FAR 39.101(a)(1)(ii) to refer
to FAR subpart 23.1 instead of just
EPEAT® standards in reference to
acquiring information technology.
C. Other Changes
1. Special Requirements for Paper
The special requirements for paper in
FAR subpart 4.3 and FAR section 11.303
are proposed for removal. This subpart
and section implemented requirements
from E.O. 13423, Strengthening Federal
Environmental, Energy, and
Transportation Management, and E.O.
13514, Federal Leadership in
Environmental, Energy, and Economic
Performance, both of which are revoked.
E:\FR\FM\03AUP3.SGM
03AUP3
51678
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
FAR subpart 4.3 promotes the use of
electronic commerce and directs
agencies to require contractors to print
or copy double-sided on at least 30
percent postconsumer fiber paper,
whenever practicable, for paper
documents related to an acquisition to
be submitted to the Government. The
clause at FAR 52.204–4, Printed or
Copied Double-Sided on Postconsumer
Fiber Content Paper, requires printing or
copying single-sided on at least 30
percent postconsumer fiber paper. Also,
section 11.303 establishes additional
content standards for paper. These
special requirements for paper are no
longer necessary, given that electronic
commerce is the primary means of
conducting acquisition-related
activities, printing double-sided on
recycled paper is a common practice,
and agencies will be required to procure
products (including paper) that meet the
minimum recovered material content
standards established by the EPA
Comprehensive Procurement
Guidelines.
2. Federal Facility Requirements
As discussed in section II.A.4. of this
preamble, this proposed rule seeks to
consolidate requirements related to
Federal facilities in a single subpart.
The following is a summary of the
proposed changes to the content of the
subpart.
ddrumheller on DSK120RN23PROD with PROPOSALS3
a. Pollution Prevention and Right-toKnow Laws
The existing requirements currently
in FAR subpart 23.10 and the clause at
FAR 52.223–5, Pollution Prevention and
Right-to-Know Information, are based
on statute. This rule proposes to transfer
the contents of the subpart and the
prescription for the clause to FAR
subpart 23.4. Alternates I and II to this
clause, however, are being removed,
since the alternates implement content
from revoked Executive orders. This
proposed rule does not make any
changes to the remaining existing
content, except to renumber the sections
and paragraphs and turn the content
currently at FAR 23.1002 into a
definition of ‘‘Federal facility.’’
Conforming changes are proposed
throughout the FAR to update crossreferences.
b. Environmental Management Systems
This rule proposes to transfer existing
requirements in FAR subpart 23.9
related to contractor compliance with an
agency environmental management
systems (EMS) to FAR subpart 23.4.
This rule proposes changes to the policy
to clarify that section 23.404 and the
clause at FAR 52.223–19, Compliance
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
with Environmental Management
Systems, apply if an agency uses an
EMS and contractor activities affect
aspects of the agency’s environmental
management. This proposed change
aligns with E.O. 14057 and the CEQ
implementing instructions, which give
agencies discretion to use an EMS to
achieve the goals in E.O. 14057.
Conforming changes are proposed
throughout the FAR to update crossreferences.
c. Waste Reduction Programs
This rule proposes to update FAR
clause 52.223–10, Waste Reduction
Program, to replace the reference to
section 3(e) of E.O. 13423 with a
reference to section 207 of E.O. 14057.
This FAR clause is prescribed for use in
all solicitations and contracts for
contractor operation of Governmentowned or -leased facilities and all
solicitations and contracts for support
services at Government-owned or
-operated facilities; it requires the
contractor to maintain a program to
promote cost-effective waste reduction
in all operations and facilities covered
by a contract. The new E.O. and CEQ
implementing instructions provide
direction to agencies on pollution
prevention and reducing waste,
therefore this clause is retained;
however, the prescription is transferred
to FAR subpart 23.4 where facilityrelated requirements have been
consolidated.
3. Construction and Architect-Engineer
Contracts
This rule proposes to update agency
requirements for construction and
architect-engineer contracts at FAR
36.104(b)(1). Currently, agencies must
ensure that all new construction, major
renovation, or repair and alteration of
Federal buildings complies with the
Guiding Principles for Federal
Leadership in High-Performance and
Sustainable Buildings. This proposed
rule will update this paragraph to align
with the directive in the CEQ
implementing instructions that all new
construction and modernization projects
greater than 25,000 gross square feet are
designed, constructed, and maintained
to meet and, wherever practicable,
exceed Federal sustainable design and
operations principles for new
construction and modernization projects
in accordance with the CEQ’s Guiding
Principles for Sustainable Federal
Buildings and Associated Instructions
(Guiding Principles) (available at
https://www.sustainability.gov/pdfs/
guiding_principles_for_sustainable_
federal_buildings.pdf); and that all
renovation projects of existing Federal
PO 00000
Frm 00008
Fmt 4701
Sfmt 4702
buildings must use, to the greatest
extent technically feasible and
practicable, Federal sustainable design
and operations principles for existing
buildings in accordance with the
Guiding Principles. FAR 36.104(b)(2) is
also proposed to be removed and the
goals in FAR 36.104(b)(5) are updated to
require agencies to divert at least 50
percent of non-hazardous construction
and demolition materials and debris.
4. Content Proposed for Removal
This rule proposes to remove the
terms ‘‘renewable energy’’ and
‘‘renewable energy technology’’ from
FAR section 2.101. As a result of the
streamlining described in this proposed
rule to direct agencies to procure
sustainable products and services,
including energy and water efficient
products, the terms are no longer used
in FAR parts 7, 11, or 23.
The term ‘‘water consumption
intensity’’ is currently used at FAR
23.202 to describe broad agency policies
from prior E.O.s to reducing potable
water consumption intensity; while this
objective is still relevant, such
requirements are already implemented
in the CEQ Guiding Principles for
Sustainable Federal Buildings and
associated instructions (Guiding
Principles). As discussed in section
II.C.3. of this preamble, FAR 36.104
directs agencies to ensure that all new
construction, major renovation, or repair
and alteration of Federal buildings
complies with the Guiding Principles.
Similarly, the direction at FAR
23.202(b)(2) and (3) for agencies to use
and manage water through waterefficient means, including storm water
management in accordance with section
438 of the Energy Independence and
Security Act of 2007 (42 U.S.C. 17094),
are covered in the CEQ Guiding
Principles and, thus, proposed for
removal.
Finally, the agency policy objectives
described at FAR 23.703 are proposed
for removal, since these objectives are
covered by the streamlined procedures
proposed under this rule. FAR 23.002
includes an overarching policy
statement for the streamlined FAR part.
In addition, the statement at FAR 23.703
regarding the statutory requirement to
procure plastic ring carriers that are
degradable (7 U.S.C. 8102(c)(1)) is
proposed for removal, since the EPA
implementing regulations at 40 CFR part
238 are directed at manufacturers and
importers of plastic ring carriers. The
implementing regulations also provide
information on an approved consensus
standard for plastic ring carriers, which
may be incorporated into design
E:\FR\FM\03AUP3.SGM
03AUP3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
documents or scopes of work, as
appropriate.
ddrumheller on DSK120RN23PROD with PROPOSALS3
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT), for Commercial
Products (Including Commercially
Available Off-the-Shelf (COTS) Items),
and for Commercial Services
The new clause proposed at FAR
52.223–XX, Sustainable Products and
Services, is prescribed at FAR 23.109(a)
for use in all solicitations and contracts,
unless a justification, exception, or
exemption applies to all potential
sustainable products and services in an
acquisition. The new omnibus clause
will be required to be included in
covered solicitations and contracts
valued at or below the simplified
acquisition threshold and for
commercial products, including COTS
items, or commercial services. It is
necessary to apply the requirements of
this clause to these types of acquisition
to achieve the intended policy outcome,
which is for the Government to meet
statutory purchasing program
requirements and to procure sustainable
products and services under required
EPA purchasing programs to the
maximum extent practicable.
The following FAR clauses are
proposed for removal under this FAR
case and will no longer be listed in FAR
clause 52.212–5, Contract Terms and
Conditions Required To Implement
Statutes or Executive Orders—
Commercial Products and Commercial
Services, as applicable to acquisitions of
commercial products or commercial
services:
• FAR 52.223–13, Acquisition of
EPEAT®-Registered Imaging Equipment,
and its Alternate I.
• FAR 52.223–14, Acquisition of
EPEAT®-Registered Televisions, and its
Alternate I.
• FAR 52.223–15, Energy Efficiency
in Energy-Consuming Products.
• 52.223–16, Acquisition of EPEAT®Registered Personal Computer Products,
and its Alternate I.
Since it is proposed for removal, FAR
clause 52.223–15 will also no longer be
listed in 52.213–4, Terms and
Conditions—Simplified Acquisitions
(Other Than Commercial Products and
Commercial Services), as applicable to
simplified acquisitions.
This rule does not include any
proposed changes to the existing
prescriptions for other FAR part 23
solicitation provisions or contract
clauses, except to renumber the section
or paragraph where content has been
relocated to a new FAR part or subpart.
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
IV. Severability
If any portion (e.g., section, clause,
sentence) of this proposed rulemaking is
held to be invalid or unenforceable
facially, or as applied to any entity or
circumstance, it shall be severable from
the remainder of this rulemaking, and
shall not affect the remainder thereof, or
its application to entities not similarly
situated or to other dissimilar
circumstances. The various portions of
this rule are independent and serve
distinct purposes. Even if one aspect
were rendered invalid, the other
benefits of these rules would still be
applicable. As an illustrative but not
exhaustive example, were a court to stay
or invalidate the proposed changes to
subpart 23.1 regarding sustainable
products and services, the agencies
would intend the broader restructuring
of FAR part 23 to remain effective.
V. Expected Impact of the Rule
A. FAR Part 23 Restructuring
Currently, FAR part 23 addresses
various policy initiatives, ranging from
requirements related to procuring
sustainable products and services and
other energy and environmental matters
to requirements for a drug-free
workplace and encouraging contractors
to ban texting while driving. The FAR
part has been revised to provide a
cohesive message on the important role
of sustainable acquisition and to
provide clear policy and directions for
the contracting and contractor
communities. The proposed changes to
restructure FAR part 23 will establish a
clear and simplified framework for the
Government to communicate
requirements related to environmental
matters and sustainable acquisition.
The proposed transfer of nonenvironmental matters to FAR part 26 is
the first step to focus the messaging in
FAR part 23 on the environment and
sustainable acquisition. Then, within
FAR part 23, existing content on similar
topics, such as purchasing
requirements, hazardous and
radioactive material requirements, and
Federal facility requirements, will be
consolidated into single subparts to
ensure that the contracting workforce is
able to easily access and understand
related policies and procedures. Finally,
content based on revoked Executive
orders, such as double-sided copying
and printing requirements in FAR
clause 52.204–4 and the alternates to
FAR clause 52.223–5, is proposed for
removal (see sections II.C.1. and II.C.2.a
of this preamble). In addition, the
contractors will no longer be required to
comply with the annual
hydrofluorocarbon reporting
PO 00000
Frm 00009
Fmt 4701
Sfmt 4702
51679
requirements contained in FAR clauses
52.223–11 and 52.223–12, which are
proposed for removal (see discussion in
section II.B.6. of this preamble).
B. Sustainable Products and Services
This proposed rule will not only
consolidate content in FAR subpart
23.1, but also streamline and
standardize the policy and procedures
for purchasing sustainable products and
services, which will help agencies and
industry better understand and comply
with the purchasing program
requirements already implemented in
the FAR. In accordance with direction
provided under E.O. 14057, this rule
proposes to require agencies to purchase
sustainable products and services to the
maximum extent practicable. This
requirement is not new. Agencies are
already required to ensure that the
overwhelming majority of their contract
actions meet the various purchasing
program requirements. For example:
• FAR subpart 23.1 currently requires
Federal agencies to advance sustainable
acquisition by ensuring that 95 percent
of new contract actions for the supply
of products and for the acquisition of
services (including construction) require
that the products are energy-efficient
(ENERGY STAR® or Federal Energy
Management Program (FEMP)designated); water-efficient; biobased;
environmentally preferable, or non-toxic
or less toxic alternatives); non-ozone
depleting; or made with recovered
materials.
• The existing statutory purchasing
program requirements described in the
proposed rule for consolidation in FAR
section 23.107 are currently
implemented in FAR subparts 23.2,
23.4, and 23.8.
• The requirement to procure
products and services that meet other
EPA purchasing programs described in
proposed FAR section 23.108 clarifies
the existing requirement at FAR
23.703(b)(1) for agencies to maximize
the use of environmentally preferable
products and services (based on EPAissued guidance).
• While this proposed rule introduces
the WaterSense® label by name, FAR
subpart 23.7 already directs agencies to
maximize environmentally preferable
products and services based on EPAissued guidance and to promote water
conservation, which would include
EPA’s WaterSense® program. In
addition, FAR subpart 23.2 currently
directs agencies to procure DOE FEMPdesignated products, which include
water-consuming products with the
WaterSense® label, and the CEQ
Guiding Principles directed for use at
E:\FR\FM\03AUP3.SGM
03AUP3
ddrumheller on DSK120RN23PROD with PROPOSALS3
51680
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
FAR 36.104 also address requirements
for WaterSense® products.
• While the Safer Choice ecolabel is
not currently referenced by name in the
FAR, FAR subpart 23.7 directs agencies
to give preference to the procurement of
acceptable alternative chemicals and
products that reduce overall risks to
human health. Safer Choice is also a
well-known ecolabel for products that
contain safer chemicals, a label that
many public institutions, private
companies, and individuals seek out
regardless of a directive to avoid
exposure to toxic chemicals.
Under this proposed rule, agencies
will be required to continue ensuring
that products and services meet
statutory purchasing program
requirements and to prioritize multiattribute products and services, which
are products and services that meet
more than one statutory purchasing
program and one or more required EPA
purchasing programs. What is
practicable is defined in a uniform
manner for all purchasing programs and
aligns with existing statutory basis for
not procuring energy-efficient products,
biobased products, and products
containing recovered material. In
addition, the existing exceptions (such
as those for acquisitions performed
outside the United States, weapon
systems, space systems, etc.) are
maintained in this proposed rule. The
proposed exemptions are also generally
maintained, though an additional
exemption for response to national
emergencies is also provided.
Finally, this proposed rule seeks to
establish a standard way for agencies to
communicate the requirements for
sustainable products and services to
contractors via a new proposed contract
clause at FAR 52.223–XX, Sustainable
Products and Services. This new clause
will enable agencies to communicate
requirements for sustainable products
and services in a uniform manner and
to better enforce the requirement to
procure sustainable products and
services as a standard term and
condition of a contract. In addition to
making clear that agencies expect to
have sustainable products and services
delivered in performance of the
contract, the proposed rule introduces a
requirement that contracting officers to
identify in the solicitation and contract
any products and services that are
subject to an exception or exemption
per a written justification from the
requiring activity. While contracting
officers already work with requiring
activities to document when they are
not able to meet the existing statutory
purchasing requirements, this proposed
rule will ensure that this information is
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
clearly communicated to offerors and
contractors.
According to data available in the
Federal Procurement Data System for
fiscal years 2019 through 2021, on
average approximately 85,826
contractors are awarded Federal
contracts each year, of which
approximately 61,797 contractors are
small businesses. These contractors
should be familiar with the existing
purchasing requirements proposed for
consolidation in FAR subpart 23.1.
However, contractors will need to
become familiar with the new omnibus
clause at FAR 52.223–XX where they
will find all applicable purchasing
program requirements in one place.
Contractors will no longer be required to
review the stand-alone provisions and
clauses at FAR 52.223–13, 52.223–14,
52.223–15, 52.223–16, and 52.223–17
proposed for removal under this rule, all
of which provide varying instructions to
contractors on the requirements for
existing purchasing programs, such as
ENERGY STAR®, FEMP, products
containing recovered material, and
EPEAT®-registered electronic products.
As stated, the policy for agencies to
procure sustainable products and
services is not new with the majority of
these requirements being in place since
2011 though agencies have had some
discretion in how to implement. This
proposed rule will help the Government
ensure it is meeting its goal to procure
sustainable products and services to the
maximum extent practicable in order to
reduce emissions, save natural
resources, and protect individuals,
communities, and the environment.
Contractors that do not currently
prioritize or propose sustainable
products and services when developing
offers in response to Government
contracts may need to adjust their
internal processes and supply chains, as
necessary, to ensure that they are in fact
delivering sustainable products and
services under Government contracts.
While this additional burden is
acknowledged, it is not possible to
quantify the potential burden for such
activities or to estimate the number of
entities potentially impacted by this
change in means of policy
communication and enforcement.
C. Other Changes
While the clause at FAR 52.204–4 to
require printing and copying doublesided on postconsumer fiber content
paper is removed, the impact is not
considered significant, since the
majority of acquisitions are conducted
electronically. Contractors will no
longer be required to report information
on hydrofluorocarbons under contracts
PO 00000
Frm 00010
Fmt 4701
Sfmt 4702
that contain FAR clause 52.223–11,
Ozone-Depleting Substances and High
Global Warming Potential
Hydrofluorocarbons, and 52.223–12,
Maintenance, Service, Repair, or
Disposal of Refrigeration Equipment and
Air Conditioners, a reduction in burden
for contractors. The alternates to FAR
clause 52.223–5, Pollution Prevention
and Right-to-Know Information, and
associated reporting requirements
related to agency EMS are also removed;
however, per FAR 52.223–19,
contractors will still be required to
comply with any agency specific
requirements for EMS.
VI. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA expect this
proposed rule when final may have a
significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601–612. An
Initial Regulatory Flexibility Analysis
(IRFA) has been performed and is
summarized as follows:
E.O. 14057, Catalyzing Clean Energy
Industries and Jobs Through Federal
Sustainability, directs agencies to reduce
emissions, promote environmental
stewardship, support resilient supply chains,
drive innovation, and incentivize markets for
sustainable products and services. As part of
this effort and pursuant to the OMB, CEQ,
and CPO Memorandum M–22–06 and the
CEQ Implementing Instructions for E.O.
14057, agencies are required to purchase, to
the maximum extent practicable and after
meeting statutory mandates, sustainable
products and services identified or
recommended by EPA.
DoD, GSA, and NASA are proposing to
amend the FAR to restructure and update
FAR part 23 to focus on current
environmental and sustainability matters and
to implement the requirements in E.O. 14057
and associated implementing instructions for
agencies to procure sustainable products and
services to the maximum extent practicable.
Promulgation of the FAR is authorized by 40
E:\FR\FM\03AUP3.SGM
03AUP3
ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
U.S.C. 121(c); 10 U.S.C. chapter 4 and 10
U.S.C. chapter 137 legacy provisions (see 10
U.S.C. 3016); and 51 U.S.C. 20113.
This proposed rule seeks to streamline
FAR part 23 by dedicating the part to
environmental matters, consolidating
purchasing program requirements in FAR
subpart 23.1, dedicating FAR subpart 23.2 to
energy savings performance contracts,
consolidating hazardous and radioactive
material requirements in FAR subpart 23.3,
consolidating Federal facility requirements in
FAR subpart 23.4, and dedicating FAR
subpart 23.8 to requirements associated with
greenhouse gas emissions.
This rule proposes to implement the E.O.
14057 requirements for sustainable products
and services in FAR subpart 23.1. As a result
of this rule, the requirement for Federal
agencies to ensure that 95 percent of new
contract actions are for sustainable products
and services is replaced with the requirement
for agencies to procure sustainable products
and services to the maximum extent
practicable. In prioritizing sustainable
products and services, agencies shall ensure
they are meeting existing statutory mandates
and prioritize multi-attribute products and
services, which are those that meet both
statutory and other required EPA purchasing
program requirements.
Any small business competing on Federal
contracts for products or services will need
to become familiar with this rule. According
to data available in the Federal Procurement
Data System for fiscal years 2019 through
2021, on average approximately 85,826
contractors are awarded Federal contracts
each year, of which approximately 61,797
contractors (72 percent) are small businesses.
Small businesses who do business with the
Federal Government should be familiar with
the existing statutory purchasing program
requirements currently at FAR subparts 23.2,
23.4, and 23.8, as well as the requirement for
agencies to procure environmentally
preferable products, including EPEAT®registered electronic products, in FAR
subpart 23.7. Small businesses will need to
become familiar with the new omnibus
clause at FAR 52.223–XX, Sustainable
Products and Services, which streamlines the
purchasing program requirements in an
omnibus clause. Small businesses will need
to validate and ensure that they are providing
products and services that fall into the
following categories, unless the contracting
officer has specified that certain sustainable
products or services are not subject to the
clause:
• Products containing recovered material
designated by the EPA under the
Comprehensive Procurement Guidelines
(CPG) (see https://www.epa.gov/smm/
comprehensive-procurement-guideline-cpgprogram#products).
• Energy efficient products that are
ENERGY STAR® certified or Federal Energy
Management Program (FEMP)-designated
products (see https://www.energy.gov/eere/
femp/search-energy-efficient-products and
https://www.energystar.gov/
products?s=mega).
• Biobased products meeting the content
requirement of the U.S. Department of
Agriculture (USDA) under the BioPreferred®
program (see https://www.biopreferred.gov).
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
• Acceptable chemicals, products, and
manufacturing processes listed under EPA’s
Significant New Alternatives Policy (SNAP)
program, which ensures a safe and smooth
transition away from substances that
contribute to the depletion of stratospheric
ozone (see https://www.epa.gov/snap).
• WaterSense® labeled (water efficient)
products and services (see https://
www.epa.gov/watersense/watersenseproducts).
• Safer Choice-certified products (products
that contain safer chemical ingredients) (see
https://www.epa.gov/saferchoice/products).
• Products and services that meet EPA
Recommendations of Specifications,
Standards, and Ecolabels, demonstrated
through third party certification (see https://
www.epa.gov/greenerproducts/
recommendations-specifications-standardsand-ecolabels-federal-purchasing).
In addition to the resources identified for
each purchasing program above, small
businesses may also consult the Green
Procurement Compilation available at
https://sftool.gov/greenprocurement, which
provides a comprehensive list of required
sustainable products and services and other
related sustainability guidance.
Finally, several existing reporting
requirements are being removed. Small
businesses will no longer be required to
report information on hydrofluorocarbons
under contracts that contain FAR clause
52.223–11, Ozone-Depleting Substances and
High Global Warming Potential
Hydrofluorocarbons, and 52.223–12,
Maintenance, Service, Repair, or Disposal of
Refrigeration Equipment and Air
Conditioners. Reporting requirements
associated with agency EMSs in the
alternates to FAR clause 52.223–5, Pollution
Prevention and Right-to-Know Information,
are also removed, though small businesses
would still be required to comply with any
agency specific requirements for EMS.
This proposed rule does not duplicate,
overlap, or conflict with other Federal rules.
This proposed rule will continue to
implement the following lead agency
regulations on the statutory purchasing
program requirements:
• EPA regulations on a Comprehensive
Procurement Guideline for Products
Containing Recovered Materials (40 CFR part
247).
• Department of Energy regulations on
Agency Procurement of Energy Efficient
Products (10 CFR part 436, subpart C).
• USDA regulations on Guidelines for
Designating Biobased Products for Federal
Procurement (7 CFR part 3201).
• EPA regulations on the Protection of
Stratospheric Ozone; Significant New
Alternatives Policy Program (40 CFR part 82,
subpart G).
This rule does not include any proposed
changes to the current greenhouse gas
disclosure requirements at FAR 23.8 and the
provision at FAR 52.223–22, except to
renumber the section and paragraph
numbers. DoD, GSA, and NASA have
proposed changes to these requirements
under a separate proposed rule (see FAR case
2021–015, Disclosure of Greenhouse Gas
Emissions and Climate-related Financial
PO 00000
Frm 00011
Fmt 4701
Sfmt 4702
51681
Risk, published at 87 FR 68312, November
14, 2022).
There are no significant alternatives to the
proposed rule that would accomplish the
stated objectives to ensure that agencies
procure sustainable products and services to
the maximum extent practicable.
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 proposed 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 in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAR Case 2022–006), in
correspondence.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. 3501–3521) applies because the
proposed rule contains information
collection requirements. The rule
proposes to renumber FAR clause
52.223–6 to 52.226–XX and transfer its
information collection requirements
from OMB Control Number 9000–0107
to the new OMB Control Number 9000–
0XXX for FAR part 26. The rule also
proposes to remove the information
collection requirements associated with
coverage of EMS and facility
compliance audits under FAR clause
52.223–5, and the requirement for
contractors to report certain information
related to hydrofluorocarbon content
under FAR clauses 52.223–11 and
52.223–12. Accordingly, the Regulatory
Secretariat Division has submitted to
OMB a request for approval of a revision
to ‘‘OMB Control Number 9000–0107,
Federal Acquisition Regulation Part 23
Requirements’’ and approval of ‘‘OMB
Control Number 9000–0XXX, Federal
Acquisition Regulation Part 26
Requirements.’’
A. Public Reporting Burden
Public reporting burden for this
collection of information includes the
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
E:\FR\FM\03AUP3.SGM
03AUP3
51682
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
1. OMB Control Number 9000–0XXX,
Federal Acquisition Regulation Part 26
Requirements
The annual reporting burden is
estimated as follows:
Respondents: 228.
Total Annual Responses: 228.
Total Burden Hours: 114.
List of Subjects in 48 CFR Parts 1, 2, 4,
5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36,
37, 39, 42, and 52
2. OMB Control Number 9000–0107,
Federal Acquisition Regulation Part 23
Requirements
The annual reporting burden is
estimated as follows:
Respondents: 34,527.
Total Annual Responses: 160,600.
Total Burden Hours: 706,089.
ddrumheller on DSK120RN23PROD with PROPOSALS3
B. Request for Comments Regarding
Paperwork Burden
Submit comments on these
collections of information no later than
October 2, 2023 through https://
www.regulations.gov and follow the
instructions on the site. All items
submitted must cite ‘‘OMB Control
Number 9000–0XXX, Federal
Acquisition Regulation Part 26
Requirements,’’ or ‘‘OMB Control
Number 9000–0107, Federal Acquisition
Regulation Part 23 Requirements,’’ as
applicable. Comments received
generally will be posted without change
to https://www.regulations.gov,
including any personal and/or business
confidential information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting. If there are difficulties
submitting comments, contact the GSA
Regulatory Secretariat Division at 202–
501–4755 or GSARegSec@gsa.gov. For
both sets of information collections,
public comments are particularly
invited on:
• The necessity of this collection of
information for the proper performance
of the functions of Federal Government
acquisitions, including whether the
information will have practical utility;
• The accuracy of the estimate of the
burden of this collection of information;
• Ways to enhance the quality, utility,
and clarity of the information to be
collected; and
• Ways to minimize the burden of the
collection of information on
respondents, including the use of
automated collection techniques or
other forms of information technology.
Requesters may obtain a copy of the
supporting statement from the General
Services Administration, Regulatory
Secretariat Division by calling 202–501–
4755 or emailing GSARegSec@gsa.gov.
Please cite OMB Control Number 9000–
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
0107, Federal Acquisition Regulation
Part 23 Requirements, or OMB Control
Number 9000–0XXX, Federal
Acquisition Regulation Part 26
Requirements, in all correspondence.
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 1, 2, 4,
5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36,
37, 39, 42, and 52 as set forth below:
■ 1. The authority citation for 48 CFR
parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15,
18, 23, 26, 36, 37, 39, 42, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 4 and 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51
U.S.C. 20113.
PART 1—FEDERAL ACQUISITION
REGULATIONS SYSTEM
2. In section 1.106, amend the table
by—
■ a. Removing the entry for ‘‘23.602’’;
■ b. Revising the entry for ‘‘52.223–2’’;
■ c. Removing the entry for ‘‘52.223–4’’;
■ d. Revising the entry for ‘‘52.223–5’’;
■ e. Removing the entry for ‘‘52.223–
6(b)(5)’’;
■ f. Revising the entries for ‘‘52.223–9’’,
‘‘52.223–11’’, ‘‘52.223–12’’, and
‘‘52.223–22’’; and
■ g. Adding in numerical order an entry
for ‘‘52.226–XX’’.
The revisions and addition read as
follows:
■
1.106 OMB approval under the Paperwork
Reduction Act.
*
*
*
*
*
OMB control
No.
FAR segment
*
*
*
52.223–2 ...............................
52.223–5 ...............................
*
*
9000–0107
9000–0107
*
*
*
52.223–9 ...............................
52.223–11 .............................
52.223–12 .............................
52.223–22 .............................
*
*
9000–0107
9000–0107
9000–0107
9000–0107
*
*
*
52.226–XX ............................
*
*
9000–XXXX
PO 00000
*
*
Frm 00012
*
Fmt 4701
*
Sfmt 4702
*
PART 2—DEFINITIONS OF WORDS
AND TERMS
3. Amend section 2.101, in paragraph
(b)(2) by—
■ a. Revising the definition ‘‘Biobased
product’’;
■ b. In the definition of ‘‘Conviction’’,
removing ‘‘23.5’’ and ‘‘23.503’’ and
adding ‘‘26.5’’ and ‘‘26.503’’ in their
places, respectively;
■ c. In the definition of ‘‘Energy-savings
performance contract’’:
■ i. Removing ‘‘Energy-savings
performance contract’’ and adding
‘‘Energy savings performance contract’’
in its place; and
■ ii. Revising paragraph (3);
■ d. Revising the definition of
‘‘Environmentally preferable’’;
■ e. Removing the definitions of ‘‘Global
warming potential’’ and ‘‘High global
warming potential hydrofluorocarbons’’;
■ f. Revising the definition of
‘‘Recovered material’’;
■ g. Removing the definitions of
‘‘Renewable energy’’ and ‘‘Renewable
energy technology’’;
■ h. In the definition of ‘‘Sustainable
acquisition’’, removing from the
introductory text ‘‘acquiring goods’’ and
adding ‘‘acquiring products’’ in its
place;
■ i. Adding in alphabetical order the
definition ‘‘Sustainable products and
services’’;
■ j. In the definition of ‘‘United States’’,
revising paragraph (9); and
■ k. Removing the definition ‘‘Water
consumption intensity’’.
The revisions and addition read as
follows:
■
2.101
Definitions.
*
*
*
*
*
(b) * * *
(2) * * *
Biobased product means a product
determined by the U.S. Department of
Agriculture to be a commercial product
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 (7 U.S.C. 8101) (7 CFR
3201.2).
*
*
*
*
*
Energy savings performance contract
* * *
E:\FR\FM\03AUP3.SGM
03AUP3
ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
(3) Guarantee future energy and cost
savings to the Government (42 U.S.C.
8287) (10 CFR 436.31).
Environmentally preferable means, in
the case of a product or service, having
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 of the product or service
(section 314 of Pub. L. 107–314, 10
U.S.C. Chapter 223 Note).
*
*
*
*
*
Recovered material means waste
materials and by-products recovered or
diverted from solid waste, but the term
does not include those materials and byproducts generated from, and commonly
reused within, an original
manufacturing process (42 U.S.C. 6903).
*
*
*
*
*
Sustainable products and services
means products and services that are
subject to and meet the following
applicable statutory mandates and
directives for purchasing:
(1) Statutory purchasing programs. (i)
Products containing recovered material
designated by the U.S. Environmental
Protection Agency (EPA) under the
Comprehensive Procurement Guidelines
(42 U.S.C. 6962) (40 CFR part 247)
(https://www.epa.gov/smm/
comprehensive-procurement-guidelinecpg-program#products).
(ii) Energy- and water-efficient
products that are ENERGY STAR®
certified or Federal Energy Management
Program (FEMP)-designated products
(42 U.S.C. 8259b) (10 CFR part 436,
subpart C) (https://www.energy.gov/
eere/femp/search-energy-efficientproducts) (https://www.energystar.gov/
products?s=mega).
(iii) Biobased products meeting the
content requirement of the U.S.
Department of Agriculture under the
BioPreferred® program (7 U.S.C. 8102)
(7 CFR part 3201) (https://
www.biopreferred.gov).
(iv) Acceptable chemicals, products,
and manufacturing processes listed
under EPA’s Significant New
Alternatives Policy (SNAP) program,
which ensures a safe and smooth
transition away from substances that
contribute to the depletion of
stratospheric ozone (42 U.S.C. 7671l)
(40 CFR part 82, subpart G) (https://
www.epa.gov/snap).
(2) Required EPA purchasing
programs. (i) WaterSense® labeled
(water efficient) products and services
(https://www.epa.gov/watersense/
watersense-products).
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
(ii) Safer Choice-certified products
(products that contain safer chemical
ingredients) (https://www.epa.gov/
saferchoice/products).
(iii) Products and services that meet
EPA Recommendations of
Specifications, Standards, and Ecolabels
(https://www.epa.gov/greenerproducts/
recommendations-specificationsstandards-and-ecolabels-federalpurchasing).
*
*
*
*
*
United States * * *
(9) For use in subpart 23.1, see
definition at 23.101.
*
*
*
*
*
PART4—ADMINISTRATIVE AND
INFORMATION MATTERS
Subpart 4.3 [Removed and Reserved]
■
4. Remove and reserve subpart 4.3.
4.602
[Amended]
5. Amend section 4.602 by removing
from paragraph (a)(3) ‘‘products, and
high-performance’’ and adding
‘‘products, services, and highperformance’’ in its place.
■
4.1202
[Amended]
6. Amend section 4.1202 by removing
paragraph (a)(25) and redesignating
paragraphs (a)(26) through (34) as
paragraphs (a)(25) through (33).
■
PART 5—PUBLICIZING CONTRACT
ACTIONS
7. Amend section 5.207 by revising
paragraph (c)(11) to read as follows:
■
5.207 Preparation and transmittal of
synopses.
*
*
*
*
*
(c) * * *
(11) Sustainable acquisition
requirements, such as a description of
high-performance sustainable building
practices required, if for design,
construction, renovation, repair, or
deconstruction (see part 23 and 36.104).
*
*
*
*
*
PART 7—ACQUISITION PLANNING
8. Amend section 7.103 by revising
paragraph (p) to read as follows:
■
7.103
Agency-head responsibilities.
*
*
*
*
*
(p) Ensuring that agency planners—
(1) Comply with the policy in
11.002(d) regarding procurement of
sustainable products and services (as
defined in 2.101) in accordance with
subpart 23.1;
(2) Comply with the Guiding
Principles for Sustainable Federal
Buildings and Associated Instructions
PO 00000
Frm 00013
Fmt 4701
Sfmt 4702
51683
(Guiding Principles), for the design,
construction, renovation, repair, or
deconstruction of Federal buildings (see
36.104). The Guiding Principles can be
accessed at https://
www.sustainability.gov/pdfs/guiding_
principles_for_sustainable_federal_
buildings.pdf; and
(3) Require contractor compliance
with Federal environmental
requirements, when the contractor is
operating Government-owned facilities
or vehicles, to the same extent as the
agency would be required to comply if
the agency operated the facilities or
vehicles.
*
*
*
*
*
■ 9. 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) All 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 part 1502);
(iii) The proposed resolution of
environmental issues; and
(iv) Any sustainable acquisition
requirements to be included in the
solicitation and contract (see 11.002 and
part 23).
*
*
*
*
*
PART 9—CONTRACTOR
QUALIFICATIONS
9.405
[Amended]
10. Amend section 9.405 by removing
from paragraph (a) ‘‘23.506(e)’’ and
adding ‘‘26.505(e)’’ in its place.
■
9.406–1
[Amended]
11. Amend section 9.406–1 by
removing from paragraph (c)
‘‘23.506(e)’’ and adding ‘‘26.505(e)’’ in
its place.
■
9.406–2
[Amended]
12. Amend section 9.406–2 by—
a. Removing from paragraph
(b)(1)(ii)(A) ‘‘52.223–6’’ and adding
‘‘52.226–XX’’ in its place; and
■ b. Removing from paragraph
(b)(1)(ii)(B) ‘‘23.504’’ and adding
‘‘26.504’’ in its place.
■
■
9.406–4
[Amended]
13. Amend section 9.406–4 by
removing from paragraph (a)(1)(i)
‘‘23.506’’ and adding ‘‘26.505’’ in its
place.
■
E:\FR\FM\03AUP3.SGM
03AUP3
51684
9.407–1
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
[Amended]
11.302
14. Amend section 9.407–1 by
removing from paragraph (d)
‘‘23.506(e)’’ and adding ‘‘26.505(e)’’ in
its place.
■
9.407–2
[Amended]
15. Amend section 9.407–2 by—
a. Removing from paragraph (a)(4)(i)
‘‘52.223–6’’ and adding ‘‘52.226–XX’’ in
its place; and
■ b. Removing from paragraph (a)(4)(ii)
‘‘23.504’’ and adding ‘‘26.504’’ in its
place.
■
■
11.303
■
[Removed]
20. Remove section 11.303.
11.304
[Redesignated as 11.302]
21. Redesignate section 11.304 as
section 11.302.
■
PART 12—ACQUISITION OF
COMMERCIAL PRODUCTS AND
COMMERCIAL SERVICES
12.503
[Amended]
16. Amend section 10.001 by revising
paragraph (a)(3)(v) to read as follows:
22. Amend section 12.503 by
removing from paragraph (a)(8)
‘‘23.501’’ and adding ‘‘26.501’’ in its
place.
10.001
12.504
PART 10—MARKET RESEARCH
■
■
Policy.
(a) * * *
(3) * * *
(v) Ensure maximum practicable use
of sustainable products and services (as
defined in 2.101) in accordance with
subpart 23.1;
*
*
*
*
*
■
PART 11—DESCRIBING AGENCY
NEEDS
■
17. Amend section 11.002 by revising
paragraphs (d)(1) and (d)(2) introductory
text and adding paragraph (d)(3) to read
as follows:
11.002
Policy.
*
*
*
*
*
(d)(1) Agencies shall procure
sustainable products and services (as
defined in 2.101) in accordance with
subpart 23.1.
(2) Unless it is not practicable (see
23.104(a)) or an exception or exemption
applies (see 23.105 and 23.106,
respectively), agencies shall incorporate
the use of sustainable products and
services when—
*
*
*
*
*
(3) The Green Procurement
Compilation (GPC) available at https://
sftool.gov/greenprocurement provides a
comprehensive list of sustainable
products and services and other related
sustainable acquisition guidance.
Agencies should—
(i) Consult the GPC when determining
which purchasing programs apply to a
specific product or service; and
(ii) Incorporate into agency
requirements any required standards,
specifications, or ecolabels identified in
the GPC for a specific product or
service.
*
*
*
*
*
11.301
■
[Removed]
18. Remove section 11.301.
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
[Amended]
23. Amend section 12.504 by
removing from paragraph (a)(10) ‘‘23.5’’
and adding ‘‘26.5’’ in its place.
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
13.006
[Amended]
24. Amend section 13.006 by
removing from paragraph (f) ‘‘52.223–6’’
and adding ‘‘52.226–XX’’ in its place.
■
ddrumheller on DSK120RN23PROD with PROPOSALS3
[Redesignated as 11.301]
19. Redesignate section 11.302 as
section 11.301.
■
13.201
[Amended]
25. Amend section 13.201 by
removing from paragraph (f) ‘‘subparts
23.1, 23.2, 23.4, and 23.7’’ and adding
‘‘subpart 23.1’’ in its place.
■ 26. Amend section 13.302–5 by
adding paragraph (d)(5) to read as
follows:
■
13.302–5
Clauses.
*
*
*
*
*
(d) * * *
(5) The contracting officer shall delete
52.223–XX, Sustainable Products and
Services, from the clause at 52.213–4
and mark the paragraph as reserved
when—
(i)(A) There is a written justification
in accordance with 23.104(a) that it is
not practicable to procure sustainable
products and services;
(B) An exception under 23.105
applies; or
(C) An exemption under 23.106
applies; and
(ii) The scope of the written
justification, exception, or exemption
covers the entirety of the contract action
requirements.
PART 15—CONTRACTING BY
NEGOTIATION
15.603
[Amended]
27. Amend section 15.603 by
removing from paragraph (e) ‘‘energysavings’’ and adding ‘‘energy savings’’
in its place.
■
PO 00000
Frm 00014
Fmt 4701
Sfmt 4702
PART 18—EMERGENCY
ACQUISITIONS
28. Amend section 18.202 by adding
paragraph (e) to read as follows:
■
18.202 Defense or recovery from certain
events.
*
*
*
*
*
(e) Sustainable products and services.
Contracting officers are encouraged, but
not required, to procure sustainable
products and services if the head of the
agency determines the supplies or
services are to be used to facilitate
defense against or recovery from cyber,
nuclear, biological, chemical, or
radiological attack; to facilitate
provision of international disaster
assistance; or to support response to an
emergency or major disaster (see
23.106(c)).
PART 23—ENVIRONMENT,
SUSTAINABLE ACQUISITION, AND
MATERIAL SAFETY
29. Revise the heading for part 23 to
read as set forth above.
■ 30. Revise section 23.000 to read as
follows:
■
23.000
Scope of part.
This part prescribes acquisition
policies and procedures supporting the
Government’s program to protect and
improve the quality of the environment,
to foster markets for sustainable
products and services, and to ensure
proper handling and notification of
hazardous materials.
■ 31. Amend section 23.001 by—
■ a. Removing the definition of
‘‘Greenhouse gases’’ and adding the
definition of ‘‘Greenhouse gas’’ in its
place; and
■ b. Removing the definition ‘‘United
States’’.
The addition reads as follows:
23.001
Definitions.
*
*
*
*
*
Greenhouse gas means carbon
dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons,
nitrogen trifluoride, or sulfur
hexafluoride.
*
*
*
*
*
■ 32. Revise section 23.002 to read as
follows:
23.002
Policy.
In accordance with section 208(a) of
Executive Order 14057, Catalyzing
Clean Energy Industries and Jobs
Through Federal Sustainability,
agencies shall reduce emissions,
including greenhouse gas emissions;
promote environmental stewardship;
support resilient supply chains; drive
E:\FR\FM\03AUP3.SGM
03AUP3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
innovation; and incentivize markets for
sustainable products and services.
■ 33. Revise subpart 23.1 to read as
follows:
Subpart 23.1—Sustainable Products and
Services
Sec.
23.100 Scope of subpart.
23.101 Definitions.
23.102 Authorities.
23.103 Policy.
23.104 General procedures.
23.105 Exceptions.
23.106 Exemptions.
23.107 Statutory purchasing programs.
23.107–1 Products containing recovered
materials.
23.107–2 Biobased products.
23.107–3 Energy-consuming products and
water-consuming products.
23.107–4 Products that contain, use, or are
manufactured with ozone-depleting
substances or products that contain or
use high global warming potential
hydrofluorocarbons.
23.108 Required Environmental Protection
Agency purchasing programs.
23.108–1 Water-efficient products.
23.108–2 Chemically-intensive products.
23.108–3 Products and services that are
subject to EPA Recommendations of
Specifications, Standards, and Ecolabels.
23.109 Solicitation provisions and contract
clauses.
Subpart 23.1—Sustainable Products
and Services
23.100
Scope of subpart.
This subpart provides policies and
procedures for procuring sustainable
products and services. This subpart
applies to all contract actions, including
those using part 12 procedures for the
acquisition of commercial products,
including commercially available offthe-shelf (COTS) items, and commercial
services and acquisitions valued at or
below the micro-purchase threshold.
ddrumheller on DSK120RN23PROD with PROPOSALS3
23.101
Definitions.
As used in this subpart—
Contract action means any oral or
written action that results in the
purchase, rent, or lease of supplies or
equipment, services, or construction.
Environmental Protection Agency
(EPA)-designated item means a product
that is or can be made with recovered
material—
(1) That is listed by EPA in a
procurement guideline (40 CFR part
247); and
(2) For which EPA has provided
recommended recovered material
content levels and other purchasing
recommendations in a related
Recovered Materials Advisory Notice
(RMAN) (available at https://
www.epa.gov/smm/regulatorybackground-comprehensive-
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
procurement-guideline-programcpg#rman).
Global warming potential means how
much a given mass of a chemical
contributes to global warming over a
given time period compared to the same
mass of carbon dioxide. Carbon
dioxide’s global warming potential is
defined as 1.0.
High global warming potential
hydrofluorocarbons means any
hydrofluorocarbons in a particular end
use for which EPA’s Significant New
Alternatives Policy (SNAP) program has
identified other acceptable alternatives
that have lower global warming
potential. The SNAP list of alternatives
is found at 40 CFR part 82, subpart G,
with supplemental tables of alternatives
available at https://www.epa.gov/snap/.
Hydrofluorocarbons means
compounds that only contain hydrogen,
fluorine, and carbon.
Ozone-depleting substance means any
substance the EPA designates in 40 CFR
part 82 as—
(1) Class I, including, but not limited
to, chlorofluorocarbons, halons, carbon
tetrachloride, and methyl chloroform; or
(2) Class II, including, but not limited
to, hydrochlorofluorocarbons.
United States, as defined in the
Executive Office of the President’s
Office of Management and Budget,
Council on Environmental Quality, and
Climate Policy Office Memorandum M–
22–06, when used in a geographical
sense means—
(1) The fifty States;
(2) The District of Columbia;
(3) The commonwealths of Puerto
Rico and the Northern Mariana Islands;
(4) The territories of Guam, American
Samoa, and the United States Virgin
Islands; and
(5) Associated territorial waters and
airspace.
U.S. Department of Agriculture
(USDA)-designated product category
means a generic grouping of products
that are or can be made with biobased
materials—
(1) That are listed by USDA in a
procurement guideline (7 CFR part
3201, subpart B); and
(2) For which USDA has provided
purchasing recommendations (available
at https://www.biopreferred.gov).
23.102
Authorities.
(a) Section 208 of Executive Order
14057, Catalyzing Clean Energy
Industries and Jobs Through Federal
Sustainability, dated December 8, 2021.
(b) Paragraph G of section I of the
Executive Office of the President’s
Office of Management and Budget,
Council on Environmental Quality, and
Climate Policy Office Memorandum M–
PO 00000
Frm 00015
Fmt 4701
Sfmt 4702
51685
22–06, Catalyzing Clean Energy
Industries and Jobs Through Federal
Sustainability, dated December 8, 2021.
(c) Implementing instructions for
Executive Order 14057, Catalyzing
Clean Energy Industries and Jobs
Through Federal Sustainability, dated
August 2022.
(d) The authorities referenced in
23.107 for statutory purchasing
programs.
23.103
Policy.
(a) Agencies shall procure sustainable
products and services (as defined in
2.101) to the maximum extent
practicable.
(1) Procuring sustainable products
and services is considered practicable,
unless the agency cannot acquire
products or services—
(i) Competitively within a reasonable
performance schedule;
(ii) That meet reasonable performance
requirements; or
(iii) At a reasonable price.
(2) For ENERGY STAR® or Federal
Energy Management Program (FEMP)designated products, a price is
reasonable if it is cost-effective over the
life of the product taking energy cost
savings into account (42 U.S.C.
8259b(b)(2)). Life-cycle cost savings
tools are available at https://
www.energystar.gov/buildings/save_
energy_commercial_buildings/ways_
save/energy_efficient_products and
https://www.nrel.gov/analysis/techlcoe.html.
(b) When procuring sustainable
products and services, agencies shall—
(1) Ensure compliance with all
applicable statutory purchasing program
requirements (see 23.107); and
(2) Prioritize multi-attribute
sustainable products and services (see
23.104(c)(2)).
(c) Regarding products under contract
actions for services, the contractor is
required to provide products that meet
the definition of sustainable products
and services at 2.101, if the products
are—
(1) Delivered to the Government
during performance;
(2) Acquired by the contractor for use
in performing services under a
Government contract where the cost of
the products is a direct cost to a
Government contract (versus costs
which are normally applied to a
contractor’s general and administrative
expenses or indirect costs); or
(3) Furnished by the contractor for use
by the Government, including use at
Government-owned contractor-operated
facilities.
E:\FR\FM\03AUP3.SGM
03AUP3
51686
ddrumheller on DSK120RN23PROD with PROPOSALS3
23.104
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
General procedures.
(a) Maximum extent practicable. If the
requiring activity submits a written
justification addressing the reasons
described in 23.103(a), the contracting
officer may consider it not practicable to
procure sustainable products or
services. A written justification may be
for a specific product or service or at the
line item or contract level. The
contracting officer shall maintain the
written justification in the contract file.
(b) Identification. The contracting
officer shall ensure the solicitation and
contract identify any products and
services that are not subject to the
requirements of this subpart and the
clause at 52.223–XX, Sustainable
Products and Services, based on the
written justification under paragraph (a)
of this section, an exception at 23.105,
or an exemption at 23.106, unless the
justification, exception, or exemption
covers the entirety of the contract action
requirements.
(c) Prioritization. Agencies shall
prioritize sustainable products and
services as follows:
(1) Procure products and services that
meet all applicable statutory purchasing
program requirements (see 23.107).
When both an EPA-designated item (see
23.107–1) and a biobased product in a
USDA-designated product category (see
23.107–2) could be used for the same
purposes, and both meet the agency’s
needs, procure the EPA-designated item.
(2) Consistent with other statutory
procurement requirements, prioritize
multi-attribute sustainable products and
services, which are those that meet all
applicable statutory purchasing program
requirements (see 23.107) and one or
more required EPA purchasing
programs (see 23.108).
(3) If no statutory purchasing program
requirements apply, procure sustainable
products and services that meet
required EPA purchasing program
requirements (see 23.108).
(4) Procure products and services that
meet required EPA purchasing programs
(see paragraph (2) of the definition of
‘‘sustainable products and services’’ in
2.101) unless doing so would conflict
with statute, Executive order, or
regulation that impose domestic
manufacturing and content
requirements, such as the Buy American
statute (41 U.S.C. chapter 83; see part
25) and the Berry Amendment (10
U.S.C. 4862).
(d) Resource. The Green Procurement
Compilation (GPC) available at https://
sftool.gov/greenprocurement provides a
comprehensive list of sustainable
products and services and other related
sustainable acquisition guidance. In
addition to the resources identified for
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
each purchasing program listed in
23.107 and 23.108, agencies should
consult the GPC when determining
which purchasing programs apply to a
specific product or service.
23.105
Exceptions.
The following are excepted from the
requirement to procure sustainable
products and services:
(a) Contracts performed outside of the
United States, unless the agency head
determines that such application is in
the interest of the United States.
(b) Weapon systems; however,
compliance with applicable agency
affirmative procurement programs is
required for recovered materials per
23.107–1 (see 23.109(b)) (42 U.S.C.
6962) and for alternatives for ozone
depleting substances per 23.107–4 (see
23.109(d)) (42 U.S.C. 7671l), unless a
written justification exists as described
at 23.104(a) (42 U.S.C. 6962(c)(1) and 7
U.S.C. 8102(a)(1)(B)).
(c) Energy-consuming products or
systems designed or procured for
combat or combat-related missions are
not subject to the requirements in
23.107–3 (42 U.S.C. 8259b(a)(5)).
(d) Biobased products to be used in
military equipment (products or systems
designed or procured for combat or
combat-related missions), spacecraft
systems, or launch support equipment
are not subject to the requirements in
23.107–2 (7 CFR 3201.3(e)).
23.106
Exemptions.
(a) The Director of National
Intelligence may exempt an intelligence
activity of the United States and related
personnel, resources, and facilities to
the extent the Director determines
necessary to protect intelligence sources
and methods from unauthorized
disclosure.
(b) The head of an agency may exempt
the following:
(1) Particular agency activities and
related personnel, resources, and
facilities when it is in the interest of
national security, to protect intelligence
sources and methods from unauthorized
disclosure, or where necessary to
protect undercover law enforcement
operations from unauthorized
disclosure. The agency shall notify the
Chair of the Council on Environmental
Quality (CEQ) in writing within 30 days
of issuance of the exemption under this
paragraph (b)(1).
(2) On an individual or class basis,
any manned and unmanned vehicle,
vessel, aircraft, or non-road equipment
that is used in combat support, combat
service support, military tactical or
relief operations, or training for such
operations or spaceflight vehicles,
PO 00000
Frm 00016
Fmt 4701
Sfmt 4702
including associated ground-support
equipment.
(c) Contracting officers are
encouraged, but not required, to procure
sustainable products and services if the
head of the agency determines the
supplies or services are to be used to
facilitate defense against or recovery
from cyber, nuclear, biological,
chemical, or radiological attack; to
facilitate provision of international
disaster assistance; or to support
response to an emergency or major
disaster.
(d) The head of the agency may
submit to the President, through the
Chair of CEQ, a request for an
exemption of an agency activity, and
related personnel, resources, and
facilities from this subpart for any
reason not otherwise addressed in this
section.
23.107
Statutory purchasing programs.
Agencies shall ensure compliance
with statutory purchasing program
requirements described in 23.107–1
through 23.107–4.
23.107–1 Products containing recovered
materials.
(a) Authorities. The Resource
Conservation and Recovery Act of 1976
(RCRA), 42 U.S.C. 6962, as implemented
at 40 CFR part 247.
(b) EPA Comprehensive Procurement
Guidelines (CPG) Program. Under
RCRA, EPA must designate items that
are or can be made with recovered
materials and must also recommend
practices to assist procuring agencies in
meeting their obligations.
(c) Applicability. (1) This section
applies to contract actions involving an
EPA-designated item, if—
(i) The price of the EPA-designated
item exceeds $10,000; or
(ii) The aggregate amount paid for
multiple purchases of the EPAdesignated item, or a functionally
equivalent item, in the preceding fiscal
year was $10,000 or more.
(2) While micro-purchases are
included in determining the aggregate
amount paid under paragraph (c)(1) of
this section, it is not necessary for an
agency to track micro-purchases when—
(i) The agency anticipates the
aggregate amount paid will exceed
$10,000; or
(ii) The agency intends to establish or
continue an affirmative procurement
program as described in paragraph (d) of
this section in the following fiscal year.
(d) Agency affirmative procurement
program. An agency shall establish an
affirmative procurement program for
EPA-designated items if the agency’s
purchases of EPA-designated items
E:\FR\FM\03AUP3.SGM
03AUP3
ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
exceed the threshold set forth in
paragraph (c)(1) of this section.
(1) Agency affirmative procurement
programs must include—
(i) A recovered materials preference
program;
(ii) A program to promote the
recovered materials preference program;
(iii) A program for requiring
reasonable estimates and certification of
recovered material used in the
performance of contracts, including a
preaward certification that products will
meet EPA recommendations (see
52.223–4, Recovered Material
Certification), and either an estimate or
a certification at contract completion
(see 52.223–9, Estimate of Percentage of
Recovered Material Content for EPADesignated Items, and its Alternate), as
well as agency procedures for
verification of estimates and
certifications;
(iv) Annual review and monitoring of
the effectiveness of the affirmative
procurement program; and
(v) Guidance for purchases of EPAdesignated items at or below the micropurchase threshold.
(2) Technical or requirements
personnel and procurement personnel
are responsible for the preparation,
implementation, and monitoring of
affirmative procurement programs.
(3) Agencies have a period of 1 year
to revise their affirmative procurement
program(s) after the designation of any
new item by EPA.
(e) Procedures. The following
procedures apply when the thresholds
set forth in paragraph (c)(1) of this
section are exceeded.
(1) Once an item has been designated
by EPA, agencies shall purchase
conforming products to the maximum
extent practicable in accordance with
23.104(a), unless a justification,
exception, or exemption applies (see
23.104(a), 23.105, and 23.106,
respectively).
(2) Agencies may use their own
specifications or commercial product
descriptions when procuring products
containing recovered materials;
however, the contract should specify
that the product is composed of the—
(i) Highest percentage of recovered
materials practicable; or
(ii) Minimum content standards in
accordance with EPA’s RMANs.
(3) When acquiring products with
recovered material, the contracting
officer may request information or data
on such products, including recycled
content or related product standards
(see 11.301(c)).
(f) Resources. (1) For information on
EPA-designated items and associated
minimum content standards, see https://
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
www.epa.gov/smm/comprehensiveprocurement-guideline-cpgprogram#products.
(2) Contracting officers should also
consult their agency’s affirmative
procurement program for agencyspecific guidance.
23.107–2
Biobased products.
(a) Authorities. (1) The Farm Security
and Rural Investment Act of 2002
(FSRIA), 7 U.S.C. 8102, as implemented
at 7 CFR part 3201.
(2) The Energy Policy Act of 2005,
Public Law 109–58.
(b) USDA BioPreferred® Program. The
BioPreferred Program was created in the
2002 Farm Bill and is managed by the
USDA. The goal of the BioPreferred
Program is to increase the purchase and
use of biobased products (as defined in
2.101) by agencies.
(c) Applicability. (1) This section
applies to contract actions involving a
biobased product in a USDA-designated
product category if—
(i) The price of the biobased product
exceeds $10,000; or
(ii) The aggregate amount paid for
multiple purchases of the biobased
product, or for a functionally equivalent
product, in the preceding fiscal year was
$10,000 or more.
(2) While micro-purchases are
included in determining the aggregate
amount paid under paragraph (c)(1) of
this section, it is not necessary for an
agency to track micro-purchases when—
(i) The agency anticipates the
aggregate amount paid will exceed
$10,000; or
(ii) The agency intends to establish or
continue an affirmative procurement
program in the following fiscal year.
(d) Agency affirmative procurement
program. An agency shall establish an
affirmative procurement program for
biobased products in USDA-designated
product categories if the agency’s
purchases of such products exceed the
threshold set forth in paragraph (c)(1) of
this section.
(1) Agency affirmative procurement
programs must include—
(i) A biobased products preference
program;
(ii) A program to promote the
biobased products preference program;
(iii) A program for requiring preaward
certification that products meet USDA
recommendations (see 52.223–1,
Biobased Product Certification) and
reporting on biobased products used in
performance of contracts (see 52.223–2,
Reporting of Biobased Products Under
Service and Construction Contracts);
and
(iv) Annual review and monitoring of
the effectiveness of the program.
PO 00000
Frm 00017
Fmt 4701
Sfmt 4702
51687
(2) Technical or requirements
personnel and procurement personnel
are responsible for the preparation,
implementation, and monitoring of
affirmative procurement programs.
(3) Agencies have a period of 1 year
to revise their procurement program(s)
after USDA updates any USDAdesignated product categories.
(e) Procedures. The following
procedures apply when the thresholds
set forth in paragraph (c)(1) of this
section are exceeded.
(1) Once a biobased product is
included in a USDA-designated product
category, agencies shall purchase
conforming products to the maximum
extent practicable in accordance with
23.104(a), unless a justification,
exception, or exemption applies (see
23.104(a), 23.105, and 23.106,
respectively).
(2) Agencies may use their own
specifications or commercial product
descriptions when procuring biobased
products; however, the contract should
specify that the biobased product is
composed of the—
(i) Highest percentage of biobased
material practicable; or
(ii) USDA’s recommended minimum
contents standards.
(3) When acquiring biobased
products, the contracting officer may
request information or data on such
products, including biobased content or
related standards of the products (see
11.301(c)).
(4) Agencies shall treat as eligible for
the preference for biobased products,
products from designated countries, as
defined in 25.003, provided that those
products—
(i) Meet the criteria for the definition
of biobased product, except that the
products need not meet the requirement
that renewable agricultural materials or
forestry materials in such product must
be domestic; and
(ii) Otherwise meet all requirements
for participation in the preference
program.
(f) Resources. (1) For information on
USDA-designated product categories
and minimum content standards for
biobased products, see https://
www.biopreferred.gov.
(2) Contracting officers should also
consult their agency’s affirmative
procurement program for agencyspecific guidance.
23.107–3 Energy-consuming products and
water-consuming products.
(a) Authorities. (1) Energy Policy and
Conservation Act (42 U.S.C. 6361(a)(1)).
(2) National Energy Conservation
Policy Act (42 U.S.C. 8253, 8259b, and
8262g).
E:\FR\FM\03AUP3.SGM
03AUP3
ddrumheller on DSK120RN23PROD with PROPOSALS3
51688
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
(3) Executive Order 11912 of April 13,
1976, Delegations of Authority under
the Energy Policy and Conservation Act.
(4) Executive Order 13221 of July 31,
2001, Energy-Efficient Standby Power
Devices.
(b) Programs—(1) ENERGY STAR®
Program. The ENERGY STAR® program
is a voluntary product-labeling initiative
that identifies and promotes energy and
water efficiency and the reduction of
greenhouse gas emissions. This joint
U.S. EPA and Department of Energy
program helps buyers save money and
protect the environment through energyand water-efficient products and
practices.
(2) Federal Energy Management
Program (FEMP). FEMP publishes
acquisition guidance to help Federal
buyers meet requirements for
purchasing energy-efficient and waterefficient products. In addition, in
product categories not covered by the
ENERGY STAR® program, FEMP sets
efficiency requirements for product
categories that have the potential to
generate significant Federal energy
savings.
(c) Procedures. To the maximum
extent practicable in accordance with
23.104(a), unless a justification,
exception, or exemption applies (see
23.104(a), 23.105, and 23.106,
respectively)—
(1) When acquiring energy- and waterconsuming products listed in the
ENERGY STAR® Program or FEMP—
(i) Agencies shall purchase ENERGY
STAR® certified or FEMP-designated
products; and
(ii) For products that consume power
in a standby mode and are listed on
FEMP’s Low Standby Power Devices
product listing at https://
www.energy.gov/eere/femp/lowstandby-power-product-list, agencies
shall—
(A) Purchase items that meet FEMP’s
standby power wattage recommendation
or document the reason for not
purchasing such items; or
(B) If FEMP has listed a product
without a corresponding wattage
recommendation, purchase items that
use no more than one watt in their
standby power consuming mode. When
it is impracticable to meet the one-watt
requirement, agencies shall purchase
items with the lowest standby wattage
practicable; and
(2) When contracting for services or
construction that will include the
provision of energy- and waterconsuming products, agencies shall
specify products that comply with the
applicable requirements in paragraph
(c)(1) of this section.
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
(d) Resources. (1) For information on
products under the ENERGY STAR®
Program, go to https://
www.energystar.gov/products.
(2) For information on energy-efficient
products, go to https://www.energy.gov/
eere/femp/search-energy-efficientproducts.
(3) For information on low standby
power products at https://
www.energy.gov/eere/femp/lowstandby-power-product-purchasingrequirements-and-complianceresources.
23.107–4 Products that contain, use, or
are manufactured with ozone-depleting
substances or products that contain or use
high global warming potential
hydrofluorocarbons.
(a) Authorities. (1) Title VI of the
Clean Air Act (42 U.S.C. 7671, et seq.).
(2) Section 706 of Division D, title VII
of the Omnibus Appropriations Act,
2009 (Pub. L. 111–8).
(3) EPA regulations, Protection of
Stratospheric Ozone (40 CFR part 82).
(b) Program. The EPA SNAP Program.
(c) Agency programs. Agencies shall
implement cost-effective programs to
minimize the procurement of materials
and substances that contribute to the
depletion of stratospheric ozone and/or
result in the use, release, or emission of
high global warming potential
hydrofluorocarbons.
(d) Procedures. Agencies shall—
(1) Give preference to the
procurement of acceptable alternative
chemicals, products, and manufacturing
processes that reduce overall risks to
human health and the environment by
minimizing—
(i) The depletion of ozone in the
upper atmosphere; and
(ii) The potential use, release, or
emission of high global warming
potential hydrofluorocarbons;
(2) In preparing specifications and
purchase descriptions and in the
acquisition of products and services—
(i) Comply with the requirements of
title VI of the Clean Air Act; section 706
of division D, title VII of Public Law
111–8; and 40 CFR 82.84(a)(2) through
(5);
(ii) Substitute acceptable alternatives
to ozone-depleting substances, as
identified under 42 U.S.C. 7671k, to the
maximum extent practicable, as
provided in 40 CFR 82.84(a)(1), except
in the case of Class I substances being
used for specified essential uses, as
identified under 40 CFR 82.4(n); and
(iii) Unless a particular contract
requires otherwise, specify that, when
feasible, contractors shall use another
acceptable alternative in lieu of a high
global warming potential
PO 00000
Frm 00018
Fmt 4701
Sfmt 4702
hydrofluorocarbon in products and
services in a particular end use for
which EPA’s SNAP program has
identified other acceptable alternatives
that have lower global warming
potential.
(e) Resource. Refer to EPA’s SNAP
program website at https://
www.epa.gov/snap for the list of
alternatives found at 40 CFR part 82,
subpart G, as well as supplemental
tables of alternatives.
23.108 Required Environmental Protection
Agency purchasing programs.
In accordance with 23.104(c),
contracting officers shall, after meeting
statutory purchasing program
requirements in 23.107, purchase to the
maximum extent practicable products
and services that meet EPA purchasing
program requirements described in
23.108–1 through 23.108–3.
23.108–1
Water-efficient products.
(a) Program. EPA’s WaterSense®
Program makes it easy to find and select
water–efficient products that can save
water, energy, and money.
WaterSense®-labeled products are
backed by independent, third-party
certification and meet EPA’s
specifications for water efficiency and
performance.
(b) Resource. For additional
information on WaterSense® products,
see https://www.epa.gov/watersense/
watersense-products.
23.108–2
Chemically-intensive products.
(a) Program. Safer Choice is EPA’s
label for products that contain safer
chemicals. Every chemical, regardless of
percentage, in a Safer Choice-certified
product is evaluated through EPA’s
rigorous scientific process and only the
safest ingredients are allowed.
(b) Resource. For information on Safer
Choice-certified products, see https://
www.epa.gov/saferchoice.
23.108–3 Products and services that are
subject to EPA Recommendations of
Specifications, Standards, and Ecolabels.
(a) Program. The EPA
Environmentally Preferable Purchasing
(EPP) Program helps Federal agencies
identify and procure environmentally
preferable products and services to meet
zero emissions and other sustainable
procurement goals by providing
Recommendations of Specifications,
Standards, and Ecolabels. The EPP
recommendations give preference to
multi-attribute or life-cycle based
standards and ecolabels that address key
environmental and human health
impact areas and where product
conformance is determined by a
E:\FR\FM\03AUP3.SGM
03AUP3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
competent third-party certification
body.
(b) Resource. For additional
information on EPA Recommendations
of Specifications, Standards, and
Ecolabels, see https://www.epa.gov/
greenerproducts/recommendationsspecifications-standards-and-ecolabelsfederal-purchasing.
ddrumheller on DSK120RN23PROD with PROPOSALS3
23.109 Solicitation provisions and
contract clauses.
(a) General. Insert the clause at
52.223–XX, Sustainable Products and
Services, in solicitations and contracts—
(1) Unless—
(i) The requiring activity has provided
a written justification that it is not
practicable to procure sustainable
products and services (see 23.104(a));
(ii) An exception under 23.105
applies; or
(iii) An exemption under 23.106
applies; and
(2) The scope of the written
justification, exception, or exemption
covers the entirety of the contract action
requirements.
(b) EPA-designated items. Except for
the acquisition of COTS items—
(1) Insert the provision at 52.223–4,
Recovered Material Certification, in
solicitations that require the delivery or
specify the use of EPA-designated items;
and
(2) Insert the clause at 52.223–9,
Estimate of Percentage of Recovered
Material Content for EPA-designated
Items, in solicitations and contracts
exceeding $150,000 that are for, or
specify the use of, EPA-designated items
containing recovered materials. If
technical personnel advise that
estimates can be verified, use the clause
with its Alternate I.
(c) Biobased products in USDAdesignated product categories. (1) Insert
the provision at 52.223–1, Biobased
Product Certification, in solicitations,
other than for acquisitions described at
23.105(d), that—
(i) Require the delivery or specify the
use of biobased products in USDAdesignated product categories; or
(ii) Include the clause at 52.223–2.
(2) Insert the clause at 52.223–2,
Reporting of Biobased Products Under
Service and Construction Contracts, in
service and construction solicitations
and contracts, unless the contract will
not involve the use of biobased products
in USDA-designated product categories
at https://www.biopreferred.gov or 7
CFR part 3201.
(d) Products containing ozonedepleting substances and
hydrofluorocarbons. Except for
contracts for supplies that will be
delivered outside the United States and
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
its outlying areas, or contracts for
services that will be performed outside
the United States and its outlying areas,
insert the following clauses:
(1) 52.223–11, Ozone-Depleting
Substances and High Global Warming
Potential Hydrofluorocarbons, in
solicitations and contracts for—
(i) Refrigeration equipment (in
product or service code (PSC) 4110);
(ii) Air conditioning equipment (PSC
4120);
(iii) Clean agent fire suppression
systems/equipment (e.g., installed room
flooding systems, portable fire
extinguishers, aircraft/tactical vehicle
fire/explosion suppression systems) (in
PSC 4210);
(iv) Bulk refrigerants and fire
suppressants (in PSC 6830);
(v) Solvents, dusters, freezing
compounds, mold release agents, and
any other miscellaneous chemical
specialty that may contain ozonedepleting substances or high global
warming potential hydrofluorocarbons
(in PSC 6850);
(vi) Corrosion prevention compounds,
foam sealants, aerosol mold release
agents, and any other preservative or
sealing compound that may contain
ozone-depleting substances or high
global warming potential
hydrofluorocarbons (in PSC 8030);
(vii) Fluorocarbon lubricants
(primarily aerosols) (in PSC 9150); and
(viii) Any other manufactured end
products that may contain or be
manufactured with ozone-depleting
substances.
(2) 52.223–12, Maintenance, Service,
Repair, or Disposal of Refrigeration
Equipment and Air Conditioners, in
solicitations and contracts that include
the maintenance, service, repair, or
disposal of—
(i) Refrigeration equipment, such as
refrigerators, chillers, or freezers; or
(ii) Air conditioners, including air
conditioning systems in motor vehicles.
(3) 52.223–20, Aerosols, in
solicitations and contracts—
(i) For products that may contain high
global warming potential
hydrofluorocarbons as a propellant, or
as a solvent; or
(ii) That involve maintenance or
repair of electronic or mechanical
devices.
(4) 52.223–21, Foams, in solicitations
and contracts for—
(i) Products that may contain high
global warming potential
hydrofluorocarbons or refrigerant blends
containing hydrofluorocarbons as a
foam blowing agent, such as building
foam insulation or appliance foam
insulation; or
(ii) Construction of buildings or
facilities.
PO 00000
Frm 00019
Fmt 4701
Sfmt 4702
51689
34. Revise subpart 23.2 to read as
follows:
■
Subpart 23.2—Energy Savings Performance
Contracts
Sec.
23.200 Scope.
23.201 Authorities.
23.202 Policy.
Subpart 23.2—Energy Savings
Performance Contracts
23.200
Scope.
(a) This subpart prescribes policies
and procedures for using an energy
savings performance contract to obtain
energy-efficient technologies at
Government facilities without
Government capital expense.
(b) This subpart applies to
acquisitions in the United States and its
outlying areas. Agencies conducting
acquisitions outside of these areas must
use their best efforts to comply with this
subpart.
23.201
Authorities.
This subpart implements the National
Energy Conservation Policy Act (42
U.S.C. 8287).
23.202
Policy.
(a) Agencies should make maximum
use of the authority provided in the
National Energy Conservation Policy
Act (42 U.S.C. 8287) to use an energy
savings performance contract (ESPC),
when life-cycle cost-effective to reduce
energy use and cost in the agency’s
facilities and operations.
(b)(1) Under an ESPC, an agency can
contract with an energy service
company for a period not to exceed 25
years to improve energy efficiency in
one or more agency facilities at no direct
capital cost to the United States
Treasury. The energy service company
finances the capital costs of
implementing energy conservation
measures and receives, in return, a
contractually determined share of the
cost savings that result.
(2) Except as provided in 10 CFR
436.34, ESPC’s are subject to subpart
17.1.
(c) To solicit and award an ESPC, the
contracting officer—
(1) Must use the procedures, selection
method, and terms and conditions
provided in 10 CFR part 436, subpart B;
and
(2) May use the ‘‘Qualified List’’ of
energy service companies established by
the Department of Energy and other
agencies.
(d) For procedures related to
unsolicited proposals for energy savings
performance contracts, see 15.603(e).
E:\FR\FM\03AUP3.SGM
03AUP3
51690
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
(e) For more information see https://
energy.gov/eere/femp/energy-savingsperformance-contracts-federal-agencies.
■ 35. Revise the heading for subpart
23.3 to read as follows:
Subpart 23.3—Hazardous Material
Identification, Material Safety Data, and
Notice of Radioactive Materials
36. Revise section 23.300 to read as
follows:
■
23.300
Scope of subpart.
This subpart prescribes policies and
procedures for the following:
(a) Acquiring deliverable items, other
than ammunition and explosives, that
require the furnishing of data involving
hazardous materials. Agencies may
prescribe special procedures for
ammunition and explosives.
(b) Providing notification of
radioactive materials prior to delivery.
■ 37. Revise the heading of section
23.302 to read as follows:
23.302 Hazardous material identification
and notice of material safety data.
*
*
23.303
*
*
*
[Redesignated as 23.304]
38. Redesignate section 23.303 as
section 23.304.
■ 39. Add a new section 23.303 to read
as follows:
■
ddrumheller on DSK120RN23PROD with PROPOSALS3
23.303
Notice of radioactive materials.
(a) The clause at 52.223–7, Notice of
Radioactive Materials, requires the
contractor to notify the contracting
officer prior to delivery of radioactive
material.
(b) Upon receipt of the notice, the
contracting officer shall notify receiving
activities so that appropriate safeguards
can be taken.
(c) The clause permits the contracting
officer to waive the notification if the
contractor states that the notification on
prior deliveries is still current. The
contracting officer may waive the notice
only after consultation with cognizant
technical representatives.
(d) The contracting officer is required
to specify in the clause at 52.223–7, the
number of days in advance of delivery
that the contractor will provide
notification. The determination of the
number of days should be done in
coordination with the installation/
facility radiation protection officer
(RPO). The RPO is responsible for
ensuring the proper license,
authorization, or permit is obtained
prior to receipt of the radioactive
material.
■ 40. Revise newly redesignated section
23.304 to read as follows:
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
23.304
Contract clauses.
(a)(1) The contracting officer shall
insert the clause at 52.223–3, Hazardous
Material Identification and Material
Safety Data, in solicitations and
contracts if the contract will require the
delivery of hazardous materials as
defined in 23.301.
(2) If the contract is awarded by an
agency other than the Department of
Defense, the contracting officer shall use
the clause at 52.223–3 with its Alternate
I.
(b) The contracting officer shall insert
the clause at 52.223–7, Notice of
Radioactive Materials, in solicitations
and contracts for supplies that are or
that contain—
(1) Radioactive material requiring
specific licensing under regulations
issued pursuant to the Atomic Energy
Act of 1954; or
(2) Radioactive material not requiring
specific licensing in which the specific
activity is greater than 0.002
microcuries per gram or the activity per
item equals or exceeds 0.01 microcuries.
Such supplies include, but are not
limited to, aircraft, ammunition,
missiles, vehicles, electronic tubes,
instrument panel gauges, compasses,
and identification markers.
■ 41. Revise subpart 23.4 to read as
follows:
Subpart 23.4—Pollution Prevention,
Environmental Management Systems, and
Waste Reduction
Sec.
23.400 Scope of subpart.
23.401 Definitions.
23.402 Authorities.
23.403 Emergency planning and toxic
release reporting.
23.404 Environmental management
systems.
23.405 Waste reduction program.
23.406 Contract clauses.
Subpart 23.4—Pollution Prevention,
Environmental Management Systems,
and Waste Reduction
23.400
Scope of subpart.
This subpart prescribes policies and
procedures for—
(a) Obtaining information needed for
Government compliance with right-toknow laws and pollution prevention
requirements;
(b) Contractor compliance with
environmental management systems;
and
(c) Ensuring waste reduction at
Federal facilities.
23.401
Definitions.
As used in this subpart—
Federal agency means an executive
agency (see 2.101).
PO 00000
Frm 00020
Fmt 4701
Sfmt 4702
Federal facility means a facility
owned or operated by a Federal agency
in the customs territory of the United
States.
23.402
Authorities.
(a) Emergency Planning and
Community Right-to-Know Act of 1986,
42 U.S.C. 11001–11050 (EPCRA).
(b) Pollution Prevention Act of 1990,
42 U.S.C. 13101–13109 (PPA).
(c) Executive Order 14057, Catalyzing
Clean Energy Industries and Jobs
Through Federal Sustainability, dated
December 8, 2021.
23.403 Emergency planning and toxic
release reporting.
(a) Federal facilities are required to
comply with the emergency planning
and toxic release reporting requirements
in EPCRA and PPA.
(b) Pursuant to EPCRA, PPA, and any
agency implementing procedures, every
contract that provides for performance
on a Federal facility shall require the
contractor to provide information
necessary for the Federal agency to
comply with paragraph (a) of this
section.
23.404 Environmental management
systems.
Agencies may implement an
environmental management system
(EMS) when it aligns with and supports
its agency’s mission needs and
facilitates implementation and progress
toward E.O. 14057 goals. If an agency
uses an EMS for contractor operation of
Government-owned or -leased facilities
or vehicles, and contractor activities
affect the agency’s environmental
management aspects—
(a) EMS requirements shall be
included in contracts to ensure proper
implementation and execution of EMS
roles and responsibilities; and
(b) The contracting officer shall—
(1) Specify the EMS directives with
which the contractor must comply; and
(2) Ensure contractor compliance to
the same extent as the agency would be
required to comply, if the agency
operated the facilities or vehicles.
23.405
Waste reduction program.
To support pollution prevention and
agency efforts to minimize waste in
accordance with E.O. 14057, contracts
for contractor operation of Governmentowned or -leased facilities or for support
services at Government-owned or
-operated facilities shall require the
contractor to promote cost-effective
waste reduction in all operations and
facilities covered by the contract.
E:\FR\FM\03AUP3.SGM
03AUP3
51691
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
23.406
Contract clauses.
(a) Insert the clause at 52.223–5,
Pollution Prevention and Right-to-Know
Information, in solicitations and
contracts that provide for performance,
in whole or in part, on a Federal facility.
(b) Insert the clause at 52.223–19,
Compliance With Environmental
Management Systems, in solicitations
and contracts for contractor operation of
Government-owned or -leased facilities
or vehicles located in the United States,
if an agency uses an EMS and contractor
activities affect aspects of the agency’s
environmental management. For
facilities located outside the United
States, the agency head may determine
that use of the clause is in the best
interest of the Government.
(c) Insert the clause at 52.223–10,
Waste Reduction Program, in
solicitations and contracts for contractor
operation of Government-owned or
-leased facilities and all solicitations
and contracts for support services at
Government-owned or -operated
facilities.
Subpart 23.5 [Transferred to Part 26]
42. Transfer subpart 23.5, consisting
of sections 23.500 through 23.506, to
part 26.
■
(a) Represent whether they publicly
disclose greenhouse gas emissions;
(b) Represent whether they publicly
disclose a quantitative greenhouse gas
emissions reduction goal; and
(c) Provide the website for any such
disclosures.
23.802
Solicitation provision.
The provision at 52.223–22, Public
Disclosure of Greenhouse Gas Emissions
and Reduction Goals—Representation,
is required only when 52.204–7, System
for Award Management, is included in
the solicitation (see 52.204–8, Annual
Representations and Certifications).
43. Remove and reserve subpart 23.6,
consisting of sections 23.601 and
23.602.
Subpart 23.7 [Removed and Reserved]
44. Remove and reserve subpart 23.7,
consisting of sections 23.700 through
23.705.
■ 45. Revise subpart 23.8 to read as
follows:
■
Subpart 23.8—Greenhouse Gas Emissions
Sec.
23.800 Scope of subpart.
23.801 Policy.
23.802 Solicitation provision.
ddrumheller on DSK120RN23PROD with PROPOSALS3
23.801
Policy.
In order to better understand both
direct and indirect greenhouse gas
emissions that result from Federal
activities, offerors that are registered in
the System for Award Management
(SAM) and received $7.5 million or
more in Federal contract awards in the
prior Federal fiscal year are required
to—
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
23.1101
23.1102
23.1103
23.1104
23.1105
26.605
New section
26.601
26.602
26.603
26.604
26.605
[Amended]
■
Subpart 23.11 [Transferred to Part 26]
PART 36—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
■
47. Remove and reserve subpart 23.10,
consisting of sections 23.1000 through
23.1005.
36.001
[Amended]
55. Amend section 36.001 by—
a. Removing from the definition of
‘‘Construction and demolition materials
PART 26—OTHER SOCIOECONOMIC
and debris’’ the phrase ‘‘means
PROGRAMS
materials and debris generated’’ and
Subpart 23.5 [Redesignated as Subpart adding the phrase ‘‘means waste
26.5]
materials and debris generated’’ in its
place;
■ 49. Redesignate newly transferred
■ b. Revising the definition of
subpart 23.5, consisting of sections
‘‘Diverting’’; and
23.500 through 23.506, as subpart 26.5
■ c. Adding the definition
as indicated in the table below:
‘‘Modernization project’’ in alphabetical
order.
Old section
New section
The revision and addition read as
23.500
26.500 follows:
23.501
23.502
23.503
23.504
23.505
23.506
26.504
Scope of subpart.
This subpart addresses public
disclosure of greenhouse gas emissions
and reduction goals.
Old section
54. Amend newly redesignated
section 26.605 by removing ‘‘52.223–
18’’ and adding ‘‘52.226–YY’’ in its
place.
Subpart 23.8—Greenhouse Gas
Emissions
23.800
53. Redesignate newly transferred
subpart 23.11, consisting of sections
23.1101 through 23.1105, as subpart
26.6 as indicated in the table below:
■
46. Remove and reserve subpart 23.9,
consisting of sections 23.900 through
23.903.
48. Transfer subpart 23.11, consisting
of sections 23.1101 through 23.1105, to
part 26.
Subpart 23.6 [Removed and Reserved]
Subpart 23.11 [Redesignated as
Subpart 26.6]
■
Subpart 23.10 [Removed and
Reserved]
[Amended]
52. Amend newly redesignated
section 26.506 by removing ‘‘23.501’’
and ‘‘52.223–6’’ and adding ‘‘26.501’’
and ‘‘52.226–XX’’ in their places,
respectively.
■
Subpart 23.9 [Removed and Reserved]
■
■
26.506
26.501
26.502
26.503
26.504
26.506
26.505
[Amended]
50. Amend newly redesignated
section 26.504 by—
■ a. Removing from the last sentence of
paragraph (a)(5) ‘‘postion’’ and adding
‘‘position’’ in its place; and
■ b. Removing from the end of
paragraph (a)(6)(i) ‘‘; or’’ and adding a
period in its place.
■
26.505
[Amended]
51. Amend newly redesignated
section 26.505 by removing from
paragraph (d)(1) ‘‘52.223–6’’ and adding
‘‘52.226–XX’’ in its place.
Frm 00021
Fmt 4701
36.001
Definitions.
*
*
*
*
*
Diverting means redirecting materials
from disposal in landfills or incinerators
to recycling or recovery, excluding
diversion to waste-to-energy facilities.
Modernization project means a project
that includes the comprehensive
replacement or restoration of virtually
all major systems, interior finishes (such
as ceilings, partitions, doors, and floor
finishes), and building features.
■ 56. Amend section 36.104 by revising
paragraph (b) to read as follows:
36.104
Policy.
*
■
PO 00000
■
■
Sfmt 4702
*
*
*
*
(b) Agencies shall implement highperformance sustainable building
design, construction, renovation, repair,
commissioning, operation and
E:\FR\FM\03AUP3.SGM
03AUP3
51692
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
maintenance, management, and
deconstruction practices so as to—
(1) Ensure that—
(i) All new construction and
modernization projects greater than
25,000 gross square feet are designed,
constructed, and maintained to meet
and, wherever practicable, exceed
Federal sustainable design and
operations principles for new
construction and modernization projects
in accordance with the Council on
Environmental Quality’s Guiding
Principles for Sustainable Federal
Buildings and Associated Instructions
(Guiding Principles) (available at
https://www.sustainability.gov/pdfs/
guiding_principles_for_sustainable_
federal_buildings.pdf); and
(ii) All renovation projects of existing
Federal buildings must use, to the
greatest extent technically feasible and
practicable, Federal sustainable design
and operations principles for existing
buildings in accordance with the
Guiding Principles;
(2) Identify alternatives to renovation
that reduce existing assets’ deferred
maintenance costs;
(3) Ensure that rehabilitation of
federally-owned historic buildings
utilizes best practices and technologies
in retrofitting to promote long-term
viability of the buildings; and
(4) Ensure pollution prevention and
eliminate waste by diverting at least 50
percent of non-hazardous construction
and demolition materials and debris.
36.601–3
[Amended]
57. Amend section 36.601–3 by
removing from paragraph (a)(2) ‘‘subpart
23.2’’ and adding ‘‘23.107–3’’ in its
place.
■
PART 37—SERVICE CONTRACTING
37.102
[Amended]
58. Amend section 37.102 by
removing from paragraph (i) ‘‘part 23’’
and adding ‘‘subpart 23.1 (see
23.103(c))’’ in its place.
■
60. Amend section 42.302 by—
a. Removing from paragraph (a)(66)
‘‘23.5’’ and adding ‘‘26.5’’ in its place;
and
■ b. Revising paragraphs (a)(68)(ii) and
(iii).
The revision reads as follows:
■
■
42.302
Contract administration functions.
(a) * * *
(68) * * *
(ii) Monitoring contractor compliance
with specifications or other contractual
requirements requiring the delivery,
use, or furnishing of sustainable
products and services (as defined in
2.101) in accordance with subpart 23.1.
This must occur as part of the quality
assurance procedures set forth in part
46; and
(iii) As required in the contract,
ensuring that the contractor complies
with the reporting requirements relating
to recovered material content (see
52.223–9) and biobased products (see
52.223–2) utilized in contract
performance.
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.204–4
[Removed and Reserved]
61. Remove and reserve section
52.204–4.
■ 62. Amend section 52.204–8 by—
■ a. Revising the date of the provision
and paragraph (c)(1)(xvii);
■ b. Removing from the end of
paragraph (c)(1)(xix) the parenthesis;
■ c. Removing paragraph (c)(2)(vi); and
■ d. Redesignating paragraphs (c)(2)(vii)
and (viii) as paragraphs (c)(2)(vi) and
(vii).
The revisions read as follows:
■
52.204–8 Annual Representations and
Certifications.
*
*
*
*
*
PART 39—ACQUISITION OF
INFORMATION TECHNOLOGY
Annual Representations and Certifications
(DATE)
59. Amend section 39.101 by revising
paragraphs (a)(1)(ii) and (iii) to read as
follows:
*
■
ddrumheller on DSK120RN23PROD with PROPOSALS3
PART 42—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
39.101
Policy.
(a)(1) * * *
(ii) The requirements for sustainable
products and services (as defined in
2.101) in accordance with subpart 23.1;
(iii) Policies to enable power
management and other energy-efficient
or environmentally preferable features
on all agency electronic products; and
*
*
*
*
*
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
*
*
*
*
(c)(1) * * *
(xvii) 52.223–1, Biobased Product
Certification. This provision applies to
solicitations that require the delivery or
specify the use of biobased products in
USDA-designated product categories; or
include the clause at 52.223–2, Reporting of
Biobased Products Under Service and
Construction Contracts.
*
*
52.211–5
*
*
*
[Amended]
63. Amend section 52.211–5 by
removing from the introductory text
■
PO 00000
Frm 00022
Fmt 4701
Sfmt 4702
‘‘11.304’’ and adding ‘‘11.302’’ in its
place.
■ 64. Amend section 52.212–5 by—
■ a. Revising the date of the clause and
paragraphs (b)(39) and (40);
■ b. Removing paragraphs (b)(41)
through (45);
■ c. Redesignating paragraphs (b)(46)
and (47) as paragraphs (b)(41) and (42);
■ d. Revising newly redesignated
paragraphs (b)(41) and (42) and adding
paragraph (b)(43);
■ e. Redesignating paragraphs (b)(48)
through (55) as paragraphs (b)(44)
through (51);
■ f. Adding a new paragraph (b)(52); and
■ g. Redesignating paragraphs (b)(56)
through (64) as paragraphs (b)(53)
through (61).
The revisions and additions read as
follows:
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Products
and Commercial Services.
*
*
*
*
*
Contract Terms and Conditions Required To
Implement Statutes or Executive Orders—
Commercial Products and Commercial
Services (DATE)
*
*
*
*
*
(b) * * *
l (39) 52.223–11, Ozone-Depleting
Substances and High Global Warming
Potential Hydrofluorocarbons (DATE) (42
U.S.C. 7671, et seq.).
l (40) 52.223–12, Maintenance, Service,
Repair, or Disposal of Refrigeration
Equipment and Air Conditioners (DATE) (42
U.S.C. 7671, et seq.).
l (41) 52.223–20, Aerosols (JUN 2016) (42
U.S.C. 7671, et seq.).
l (42) 52.223–21, Foams (JUN 2016) (42
U.S.C. 7671, et seq.).
l (43) 52.223–XX, Sustainable Products
and Services (DATE) (E.O. 14057, 7 U.S.C.
8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and
42 U.S.C. 7671l).
*
*
*
*
*
l (52) 52.226–YY, Encouraging Contractor
Policies to Ban Text Messaging While Driving
(DATE) (E.O. 13513).
*
*
*
*
*
65. Amend section 52.213–4 by—
a. Revising the date of the clause;
b. Redesignating paragraphs
(a)(1)(viii) through (xi) as paragraphs
(a)(1)(ix) through (xii) and adding a new
paragraph (a)(1)(viii);
■ c. Revising paragraphs (b)(1)(xi)
through (xiii);
■ d. Removing paragraph (b)(1)(xiv);
■ e. Redesignating paragraphs (b)(1)(xv)
through (xxi) as paragraphs (b)(1)(xiv)
through (xx); and
■ f. Revising newly redesignated
paragraphs (b)(1)(xiv) and (xv).
The revisions and addition read as
follows:
■
■
■
E:\FR\FM\03AUP3.SGM
03AUP3
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Products and Commercial
Services).
*
*
*
*
*
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial
Products and Commercial Services) (DATE)
(a) * * *
(1) * * *
(viii) 52.223–XX, Sustainable Products and
Services (DATE) (E.O. 14057, 7 U.S.C. 8102,
42 U.S.C. 6962, 42 U.S.C. 8259b, and 42
U.S.C. 7671l).
*
*
*
*
*
(b) * * *
(1) * * *
(xi) 52.223–5, Pollution Prevention and
Right-to-Know Information (MAY 2011) (42
U.S.C. 11001–11050 and 13101–13109)
(Applies to services performed on Federal
facilities).
(xii) 52.223–11, Ozone-Depleting
Substances and High Global Warming
Potential Hydrofluorocarbons (DATE) (42
U.S.C. 7671, et seq.) (Applies to contracts for
products as prescribed at FAR 23.109(d)(1)).
(xiii) 52.223–12, Maintenance, Service,
Repair, or Disposal of Refrigeration
Equipment and Air Conditioners (DATE) (42
U.S.C. 7671, et seq.) (Applies to maintenance,
service, repair, or disposal of refrigeration
equipment and air conditioners).
(xiv) 52.223–20, Aerosols (DATE) (42
U.S.C. 7671, et seq.) (Applies to contracts for
products that may contain high global
warming potential hydrofluorocarbons as a
propellant or as a solvent; or contracts for
maintenance or repair of electronic or
mechanical devices).
(xv) 52.223–21, Foams (DATE) (42 U.S.C.
7671, et seq.) (Applies to contracts for
products that may contain high global
warming potential hydrofluorocarbons or
refrigerant blends containing
hydrofluorocarbons as a foam blowing agent;
or contracts for construction of buildings or
facilities.
*
*
*
*
*
66. Revise section 52.223–1 to read as
follows:
■
52.223–1
Biobased Product Certification.
ddrumheller on DSK120RN23PROD with PROPOSALS3
As prescribed in 23.109(c)(1), insert
the following provision:
Biobased Product Certification (DATE)
As required by the Farm Security and
Rural Investment Act of 2002 (7 U.S.C.
8101(4)) and the Energy Policy Act of 2005
(7 U.S.C. 8102(a)(2)(F)), the offeror certifies,
by signing this offer, that biobased products
(within categories of products listed by the
United States Department of Agriculture in 7
CFR part 3201, subpart B) to be used or
delivered in the performance of the contract,
other than biobased products that are not
purchased by the offeror as a direct result of
this contract, will comply with the applicable
specifications or other contractual
requirements.
(End of provision)
■ 67. Revise section 52.223–2 to read as
follows:
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
51693
52.223–2 Reporting of Biobased Products
Under Service and Construction Contracts.
52.223–5 Pollution Prevention and Rightto-Know Information.
As prescribed in 23.109(c)(2), insert
the following clause:
As prescribed in 23.406(a), insert the
following clause:
Reporting of Biobased Products Under
Service and Construction Contracts (DATE)
(a) Definitions. As used in this clause—
Biobased product means a product
determined by the U.S. Department of
Agriculture (USDA) to be a commercial
product 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. (7 U.S.C. 8101)
(7 CFR 3201.2).
USDA-designated product category means
a generic grouping of products that are or can
be made with biobased materials—
(1) That are listed by USDA in a
procurement guideline (7 CFR part 3201,
subpart B); and
(2) For which USDA has provided
purchasing recommendations (available at
https://www.biopreferred.gov).
(b) The Contractor shall report to https://
www.sam.gov, with a copy to the Contracting
Officer, on the product types and dollar value
of any biobased products in USDAdesignated product categories purchased by
the Contractor during the previous
Government fiscal year, between October 1
and September 30; and
(c) Submit this report no later than—
(1) October 31 of each year during contract
performance; and
(2) At the end of contract performance.
Pollution Prevention and Right-to-Know
Information (DATE)
68. Amend section 52.223–3 by
revising the introductory text and the
introductory text of Alternate I to read
as follows:
*
■
52.223–3 Hazardous Material Identification
and Material Safety Data.
As prescribed in 23.304(a)(1), insert
the following clause:
*
*
*
*
*
Alternate I (JUL 1995) As prescribed in
23.304(a)(2), add the following paragraph (i)
to the basic clause:
*
*
52.223–4
*
*
*
[Amended]
69. Amend section 52.223–4 by
removing from the introductory text
‘‘23.406(c)’’ and adding ‘‘23.109(b)(1)’’
in its place.
■ 70. Amend section 52.223–5 by—
■ a. Revising the introductory text and
the date of the clause;
■ b. Removing paragraph (c)(6),
Alternate I, and Alternate II.
The revision reads as follows:
■
PO 00000
Frm 00023
Fmt 4701
Sfmt 4702
*
*
52.223–6
*
*
*
[Redesignated as 52.226–XX]
71. Redesignate section 52.223–6 as
section 52.226–XX.
■ 72. Amend section 52.223–7 by:
■ a. Revising the section heading; and
■ b. Removing from the introductory
text ‘‘23.602’’ and adding ‘‘23.304(b)’’ in
its place.
The revision reads as follows:
■
52.223–7
*
*
52.223–9
Notice of Radioactive Materials.
*
*
*
[Amended]
73. Amend section 52.223–9 by
removing from the introductory text and
the introductory text of Alternate I
‘‘23.406(d)’’ and adding ‘‘23.109(b)(2)’’
in its place.
■ 74. Amend section 52.223–10 by—
■ a. Revising the introductory text and
the date of the clause; and
■ b. Removing from paragraph (b) ‘‘3(e)
of Executive Order 13423’’ and adding
‘‘207 of Executive Order 14057’’ in its
place.
The revisions read as follows:
■
52.223–10
Waste Reduction Program.
As prescribed in 23.406(c), insert the
following clause:
Waste Reduction Program (DATE)
*
*
*
*
75. Amend section 52.223–11 by—
■ a. Revising the introductory text and
the date of the clause;
■ b. Removing paragraph (c); and
■ c. Redesignating paragraph (d) as
paragraph (c).
The revisions read as follows:
■
52.223–11 Ozone-Depleting Substances
and High Global Warming Potential
Hydrofluorocarbons.
As prescribed in in 23.109(d)(1),
insert the following clause:
Ozone-Depleting Substances and High
Global Warming Potential
Hydrofluorocarbons (DATE)
*
*
*
*
*
76. Amend section 52.223–12 by—
■ a. Revising the introductory text, the
date of the clause, and paragraph (c)(4);
■ b. Removing paragraph (d); and
■ c. Redesignating paragraph (e) as
paragraph (d).
The revisions read as follows:
■
E:\FR\FM\03AUP3.SGM
03AUP3
51694
Federal Register / Vol. 88, No. 148 / Thursday, August 3, 2023 / Proposed Rules
52.223–12 Maintenance, Service, Repair,
or Disposal of Refrigeration Equipment and
Air Conditioners.
As prescribed in 23.109(d)(2), insert
the following clause:
Maintenance, Service, Repair, or Disposal of
Refrigeration Equipment and Air
Conditioners (DATE)
*
*
*
*
*
(c) * * *
(4) Using reclaimed hydrofluorocarbons to
service and repair refrigeration and air
conditioning equipment, where feasible.
*
*
*
*
*
52.223–13 through 52.223–17
and Reserved]
[Removed
76. Remove and reserve sections
52.223–13 through 52.223–17.
■
52.223–18
[Redesignated as 52.226–YY]
77. Redesignate section 52.223–18 as
section 52.226–YY.
■
52.223–19
[Amended]
78. Amend section 52.223–19 in the
introductory text by removing ‘‘23.903’’
and adding ‘‘23.406(b)’’ in its place.
■
52.223–20
[Amended]
79. Amend section 52.223–20 in the
introductory text by removing
‘‘23.804(a)(3)’’ and adding
‘‘23.109(d)(3)’’ in its place.
■
52.223–21
[Amended]
80. Amend section 52.223–21 in the
introductory text by removing
‘‘23.804(a)(4)’’ and adding
‘‘23.109(d)(4)’’ in its place.
■
52.223–22
[Amended]
81. Amend section 52.223–22 in the
introductory text by removing
‘‘23.804(b)’’ and adding ‘‘23.802’’ in its
place.
■ 82. Add section 52.223–XX to read as
follows:
■
52.223–XX
Services.
Sustainable Products and
ddrumheller on DSK120RN23PROD with PROPOSALS3
As prescribed in 23.109(a), insert the
following clause:
Sustainable Products and Services (DATE)
(a) Definitions. As used in this clause—
Biobased product means a product
determined by the U.S. Department of
Agriculture (USDA) to be a commercial
product 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. (7 U.S.C. 8101)
(7 CFR 3201.2).
VerDate Sep<11>2014
21:49 Aug 02, 2023
Jkt 259001
Recovered material means waste materials
and by-products recovered or diverted from
solid waste, but the term does not include
those materials and by-products generated
from, and commonly reused within, an
original manufacturing process. (42 U.S.C.
6903).
Sustainable products and services means
products and services that are subject to and
meet the following applicable statutory
mandates and directives for purchasing:
(1) Statutory purchasing programs.
(i) Products containing recovered material
designated by the U.S. Environmental
Protection Agency (EPA) under the
Comprehensive Procurement Guidelines (42
U.S.C. 6962) (40 CFR part 247) (https://
www.epa.gov/smm/comprehensiveprocurement-guideline-cpgprogram#products).
(ii) Energy- and water-efficient products
that are ENERGY STAR® certified or Federal
Energy Management Program (FEMP)designated products. (42 U.S.C. 8259b) (10
CFR part 436, subpart C) (https://
www.energy.gov/eere/femp/search-energyefficient-products) and (https://
www.energystar.gov/products?s=mega).
(iii) Biobased products meeting the content
requirement of the USDA under the
BioPreferred® program. (7 U.S.C. 8102) (7
CFR part 3201) (https://
www.biopreferred.gov).
(iv) Acceptable chemicals, products, and
manufacturing processes listed under EPA’s
Significant New Alternatives Policy (SNAP)
program, which ensures a safe and smooth
transition away from substances that
contribute to the depletion of stratospheric
ozone. (42 U.S.C. 7671l) (40 CFR part 82,
subpart G) (https://www.epa.gov/snap).
(2) Required EPA purchasing programs.
(i) WaterSense® labeled (water efficient)
products and services (https://www.epa.gov/
watersense/watersense-products).
(ii) Safer Choice-certified products
(products that contain safer chemical
ingredients) (https://www.epa.gov/
saferchoice/products).
(iii) Product and services that meet EPA
Recommendations of Specifications,
Standards, and Ecolabels (https://
www.epa.gov/greenerproducts/
recommendations-specifications-standardsand-ecolabels-federal-purchasing).
(b) Requirements.
(1) Except as provided in paragraph (b)(2)
of this clause, in the performance of this
contract, the Contractor shall—
(i) Deliver and furnish sustainable products
and services for Government use, including
use at Government-owned contractoroperated facilities;
(ii) Incorporate sustainable products and
services into the construction of a public
building or public works; and
(iii) Furnish sustainable products and
services for use in performing services under
this contract, where the cost of the products
is a direct cost to this contract (versus costs
which are normally applied to the
Contractor’s general and administrative
expenses or indirect costs).
(2) The contract will identify any products
or services that are not subject to this clause.
(3) Sustainable products and services must
meet the applicable standards, specifications,
PO 00000
Frm 00024
Fmt 4701
Sfmt 9990
or other program requirements at time of
quote or offer submission.
(c) Prioritization. The Contractor shall
prioritize sustainable products and services
as follows:
(1) Provide products and services that meet
all applicable statutory purchasing program
requirements. When both an EPA-designated
item and a biobased product in a USDAdesignated product category could be used
for the same purposes, and both meet the
agency’s needs, procure the EPA-designated
item.
(2) Prioritize multi-attribute sustainable
products and services, which are those that
meet all applicable statutory purchasing
program requirements and one or more
required EPA purchasing programs.
(3) If no statutory purchasing program
requirements apply, procure sustainable
products and services that meet required EPA
purchasing program requirements.
(4) Procure products and services that meet
required EPA purchasing programs (see
paragraph (2) of the definition of ‘‘sustainable
products and services’’ in paragraph (a) of
this clause) unless doing so would conflict
with statute, Executive order, or regulation
that impose domestic manufacturing and
content requirements, such as the Buy
American statute (41 U.S.C. chapter 83; see
FAR part 25) and the Berry Amendment (10
U.S.C. 4862).
(d) Resource. The Green Procurement
Compilation (GPC) available at https://
sftool.gov/greenprocurement provides a
comprehensive list of sustainable products
and services and sustainable acquisition
guidance. The Contractor should review the
GPC when determining which purchasing
programs apply to a specific product or
service.
(End of clause)
■ 83. Amend newly redesignated
section 52.226–XX by—
■ a. Revising the introductory text and
the date of the clause; and
■ b. Removing from paragraph (d)
‘‘23.506’’ and adding ‘‘26.505’’ in its
place.
The revisions read as follows:
52.226–XX
Drug-Free Workplace.
As prescribed in 26.506, insert the
following clause:
Drug-Free Workplace (DATE)
*
*
*
*
*
84. Amend newly redesignated
section 52.226–YY by revising the
introductory text and the date of the
clause to read as follows:
■
52.226–YY Encouraging Contractor
Policies To Ban Text Messaging While
Driving.
As prescribed in 26.605, insert the
following clause:
Encouraging Contractor Policies To Ban Text
Messaging While Driving (DATE)
*
*
*
*
*
[FR Doc. 2023–16012 Filed 8–1–23; 8:45 am]
BILLING CODE 6820–EP–P
E:\FR\FM\03AUP3.SGM
03AUP3
]]>Agencies
[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Proposed Rules]
[Pages 51672-51694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16012]
[[Page 51671]]
Vol. 88
Thursday,
No. 148
August 3, 2023
Part IV
Department of Defense
-----------------------------------------------------------------------
General Services Administration
-----------------------------------------------------------------------
National Aeronautics and Space Administration
-----------------------------------------------------------------------
48 CFR Parts 1, 2, 4, et al.
-----------------------------------------------------------------------
Federal Acquisition Regulations; Proposed Rules
Federal Register / Vol. 88 , No. 148 / Thursday, August 3, 2023 /
Proposed Rules
[[Page 51672]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36,
37, 39, 42, and 52
[FAR Case 2022-006, Docket No. 2022-0006, Sequence No. 1]
RIN 9000-AO43
Federal Acquisition Regulation: Sustainable Procurement
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to restructure and update the regulations
to focus on current environmental and sustainability matters and to
implement a requirement for agencies to procure sustainable products
and services to the maximum extent practicable.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
October 2, 2023, to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2022-006 to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``FAR Case 2022-006''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2022-006''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case 2022-006'' on your attached
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite ``FAR Case 2022-
006'' in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. Public comments may be submitted as an individual, as an
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s),
please check https://www.regulations.gov, approximately two to three
days after submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Hawes, Procurement
Analyst, at 202-255-9194 or by email at [email protected], for
clarification of content. For information pertaining to status,
publication schedules, or alternate instructions for submitting
comments if https://www.regulations.gov cannot be used, contact the
Regulatory Secretariat Division at 202-501-4755 or [email protected].
Please cite FAR Case 2022-006.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to restructure
and update FAR part 23 to focus on current environmental and
sustainability matters and to implement a requirement for agencies to
procure sustainable products and services to the maximum extent
practicable. On December 8, 2021, the President signed Executive Order
(E.O.) 14057, Catalyzing Clean Energy Industries and Jobs Through
Federal Sustainability. Section 208(a) directs agencies to reduce
emissions, promote environmental stewardship, support resilient supply
chains, drive innovation, incentivize markets for sustainable products
and services, purchase sustainable products and services in accordance
with relevant statutory requirements, and, to the maximum extent
practicable, purchase sustainable products and services identified or
recommended by the Environmental Protection Agency (EPA). The Executive
Office of the President's Office of Management and Budget (OMB),
Council on Environmental Quality (CEQ), and Climate Policy Office
jointly issued Memorandum M-22-06 on the same date to provide direction
for agency compliance with the E.O. Paragraph G of section I of the
memorandum reiterates the requirement to purchase, to the maximum
extent practicable and after meeting statutory mandates, sustainable
products and services identified or recommended by EPA. The relevant
purchasing requirements established by statute, as indicated in that
memorandum, are for the following types of products:
Products containing recovered material identified by EPA's
Comprehensive Procurement Guideline Program;
Biobased products in categories designated by the
Department of Agriculture (USDA);
Energy efficient products certified by ENERGY STAR[supreg]
and energy and water efficient products designated by the Department of
Energy Federal Energy Management Program (DOE-FEMP); and
Products made with or containing acceptable alternatives
to ozone-depleting substances listed by EPA's Significant New
Alternatives Policy (SNAP) program.
These statutory purchasing programs are currently implemented in
FAR part 23, especially in subparts 23.2, 23.4, and 23.8.
The required EPA programs, as listed in Memorandum M-22-06, that
identify sustainable products and services include: WaterSense[supreg];
Safer Choice; SmartWay Transport partners and SmartWay products; and
EPA Recommendations of Specifications, Standards, and Ecolabels for
Federal Purchasing. The requirement to procure these types of
environmentally preferable products and services are currently
implemented at FAR subpart 23.7. Paragraph (b)(1) of FAR section 23.703
directs agencies to employ acquisition strategies that maximize the
utilization of environmentally preferable products and services (based
on EPA-issued guidance). This subpart also currently includes the
requirement to procure environmentally preferable products and
Electronic Product Environmental Assessment Tool (EPEAT[supreg])-
registered products, which are examples of EPA Recommendations of
Specifications, Standards, and Ecolabels for Federal Purchasing.
In August 2022, CEQ issued Implementing Instructions for E.O.
14057. Section 4.6 of the instructions reiterates the requirement to
first ensure compliance with statutory purchasing programs and then
ensure procurement of products and services identified by the required
EPA programs in all contract actions and purchases. It also directed
prioritization of multi-attribute products and services that meet at
least one statutory purchasing program and one or more of the non-
statutory EPA programs. The instructions also delineate when it is
considered not practicable to procure sustainable products and services
and provide a listing of helpful resources for identifying and
understanding sustainable products and services.
The CEQ implementing instructions provide additional direction as
it relates to Federal facility requirements, such as goals for
pollution prevention and waste diversion and requirements for waste
reduction. The instructions also provide direction for certain
construction and modernization projects to meet and
[[Page 51673]]
(where practicable) exceed the CEQ's Guiding Principles for Sustainable
Federal Buildings and Associated Instructions (Guiding Principles)
(available at https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf).
II. Discussion and Analysis
In addition to implementing the requirements in E.O. 14057 and the
associated implementing instructions, DoD, GSA, and NASA are using this
opportunity to restructure and streamline FAR part 23. As discussed in
section II.A. of this preamble, under this effort, FAR part 23 is
proposed to be amended to accomplish the following:
Dedicate FAR part 23 to environmental matters.
Consolidate purchasing programs requirements.
Consolidate requirements related to hazardous and
radioactive material.
Consolidate Federal facility requirements.
DoD, GSA, and NASA are proposing to implement the requirements of
E.O. 14057, Memorandum M-22-06, and the CEQ E.O. 14057 implementing
instructions related to sustainable products and services by
consolidating them at FAR subpart 23.1 (see discussion in section II.B.
of this preamble). This revised subpart will address both statutory and
EPA purchasing programs, except for SmartWay Program requirements,
which will be considered under a separate FAR rulemaking. The subpart
includes the proposed policy and procedures for purchasing and
prioritizing sustainable products and services, to include requirements
for agency programs, exceptions, exemptions, and a new omnibus contract
clause.
DoD, GSA, and NASA are also proposing additional updates to
requirements related to acquisition planning, special requirements for
paper, waste reduction, construction and architect-engineer contracts,
and information technology contracts to implement E.O. 14057 and the
related CEQ implementing instructions. Several of these proposed
changes update requirements established under an interim rule published
under FAR Case 2010-001 (see 76 FR 31395, May 31, 2011) to align with
current requirements under E.O. 14057. Any final rule resulting from
this proposed rule will finalize the interim rule.
A. FAR Part 23 Restructuring
1. Dedicate FAR Part 23 to the Environment, Sustainable Acquisition,
and Material Safety
In order to dedicate part 23 to environmental matters, sustainable
acquisition, and material safety, DoD, GSA, and NASA are proposing to
transfer the following two subparts to FAR part 26, Other Socioeconomic
Programs:
FAR subpart 23.5, Drug-Free Workplace.
FAR subpart 23.11, Encouraging Contractor Policies to Ban
Text Messaging While Driving.
This proposed rule does not propose any changes to the content of
subpart 23.5 or 23.11, except to renumber the sections to 26.5 and
26.6, respectively, and to move the clause prescription section for
Drug-Free Workplace to the end of its subpart. The associated clauses
at FAR 52.223-6, Drug-Free Workplace, and 52.223-18, Encouraging
Contractor Policies to Ban Text Messaging While Driving, are also
proposed to be renumbered as FAR clause 52.226-XX and 52.226-YY,
respectively, to associate these clauses with FAR part 26. Conforming
changes are proposed throughout the FAR to update cross-references.
2. Consolidate Purchasing Program Requirements
DoD, GSA, and NASA are proposing to consolidate purchasing program
requirements into a single subpart at FAR 23.1, to be titled
``Sustainable Products and Services.'' This subpart will include
overarching policy and procedures to implement E.O. 14057 requirements
for purchasing sustainable products and services (see discussion in
section II.B. of this preamble) and will include two new sections to
outline existing statutory purchasing programs and required EPA
purchasing programs (FAR sections 23.107 and 23.108, respectively).
Existing content related to statutory purchasing programs in the
following FAR subparts is proposed to be transferred to and streamlined
in the new section at FAR 23.107, titled ``Statutory purchasing
programs'':
FAR subpart 23.2, Energy and Water Efficiency and
Renewable Energy.
FAR subpart 23.4, Recovered Materials and Biobased
Products.
FAR subpart 23.8, Ozone-Depleting Substances and
Greenhouse Gases.
The prescriptions for the following provisions and clauses
associated with these subparts are transferred to FAR 23.109 organized
under headings associated with the particular statutory purchasing
programs:
FAR provision 52.223-4, Recovered Material Certification.
FAR clause 52.223-9, Estimate of Percentage of Recovered
Material Content for EPA-designated Items.
FAR provision 52.223-1, Biobased Product Certification,
FAR clause 52.223-2, Reporting of Biobased Products Under
Service and Construction Contracts.
FAR clause 52.223-11, Ozone-Depleting Substances and High
Global Warming Potential Hydrofluorocarbons.
FAR clause 52.223-12, Maintenance, Service, Repair, or
Disposal of Refrigeration Equipment and Air Conditioners.
FAR clause 52.223-20, Aerosols.
FAR clause 52.223-21, Foams.
Changes to the content of these provisions and clauses, which
implement various statutory certification and reporting requirements,
are discussed under section II.B.6. of this preamble. The prescriptions
for the clauses at FAR 52.223-15, Energy Efficiency in Energy-Consuming
Products, and FAR 52.223-17, Affirmative Procurement of EPA-designated
Items in Service and Construction Contracts, are not transferred to
23.109; these clauses are proposed to be removed and reserved (also
addressed in section II.B.6. of this preamble).
The requirement to procure environmentally preferable products and
EPEAT[supreg]-registered products currently implemented at FAR subpart
23.7 is proposed to be removed and replaced by the requirement to
procure products and services that meet EPA Recommendations of
Specifications, Standards, and Ecolabels in the new section at FAR
23.108-3. As discussed in section II.B.6. of this preamble, since EPEAT
is one of EPA's recommendations, the following clauses associated with
EPEAT and any alternates to these clauses are proposed to be removed
and reserved:
FAR 52.223-13, Acquisition of EPEAT[supreg]-Registered
Imaging Equipment.
FAR 52.223-14, Acquisition of EPEAT[supreg]-Registered
Televisions.
FAR 52.223-16, Acquisition of EPEAT[supreg]-Registered
Personal Computer Products.
As a result of this consolidation, FAR subpart 23.2 will be
dedicated to energy savings performance contracts, FAR subpart 23.4
will be repurposed to address Federal facility requirements (see
discussion in section II.A.4 of this preamble), FAR subpart 23.7 will
be removed, and FAR subpart 23.8 will be dedicated to greenhouse gas
emissions. There are no proposed changes to the remaining content in
FAR subpart 23.2
[[Page 51674]]
related to energy savings performance contracts or subpart 23.8 related
to greenhouse gas emissions disclosures, except to renumber the
sections and paragraphs. Conforming changes are proposed throughout the
FAR to update cross-references.
3. Consolidate Hazardous and Radioactive Material Requirements
To further streamline FAR part 23, DoD, GSA, and NASA are proposing
to consolidate the content of the following subparts in FAR subpart
23.3 under the new title ``Hazardous Material Identification, Material
Safety Data, and Notice of Radioactive Materials'':
FAR subpart 23.3, Hazardous Material Identification and
Material Safety Data.
FAR subpart 23.6, Notice of Radioactive Material.
This proposed rule does not include any proposed changes to the
content of subpart 23.3 or 23.6, except to renumber the sections and
paragraphs. Note, however, that DoD, GSA, and NASA have proposed
changes to the greenhouse gas emissions disclosure requirements in
subpart 23.8 under a separate proposed rule (see FAR case 2021-015,
Disclosure of Greenhouse Gas Emissions and Climate-related Financial
Risk, published 87 FR 68312, November 14, 2022). Conforming changes are
proposed throughout the FAR to update cross-references.
4. Consolidate Federal Facility Requirements
DoD, GSA, and NASA are proposing to consolidate the following
content related to Federal facilities in FAR subpart 23.4:
FAR subpart 23.10, Federal Compliance With Right-To-Know
Laws and Pollution Prevention Requirements.
FAR subpart 23.9, Contractor Compliance with Environmental
Management Systems.
FAR section 23.705 prescription for the clause at FAR
52.223-10, Waste Reduction Program.
Proposed changes to these subparts and associated clauses are
described in section II.C.2. of this preamble. Conforming changes are
proposed throughout the FAR to update cross-references.
5. Derivation and Distribution Tables
Derivation and distribution tables are provided below to illustrate
at the subpart level where content is derived from and where content
will be distributed to as a result of this proposed rule. A
presentation illustrating the overarching changes at the part/subpart
level and more detailed tables illustrating changes at the section/
paragraph level are provided as supplemental documents to this proposed
rule. To access the presentation and tables, go to https://www.regulations.gov, search for ``FAR Case 2022-006,'' click ``Open
Docket,'' and view ``Supporting Documents''.
The following derivation table illustrates where the contents in
the proposed subparts in FAR parts 23 and 26 are derived from:
Derivation Table
------------------------------------------------------------------------
Proposed FAR subpart Old FAR subpart
------------------------------------------------------------------------
23.1 Sustainable Products and 23.1 Sustainable Acquisition
Services. Policy.
23.2 Energy and Water Efficiency
and Renewable Energy (Content
related to energy-efficient
products only).
23.4 Use of Recovered Materials
and Biobased Products.
23.8 Ozone-Depleting Substances
and Greenhouse Gases (Content
related to ozone-depleting
substances only).
23.2 Energy Savings Performance 23.2 Energy and Water Efficiency
Contracts. and Renewable Energy (Content
related to energy-savings
performance contracts only).
23.3 Hazardous Material 23.3 Hazardous Material
Identification, Material Safety Identification and Material
Data, and Notice of Radioactive Safety Data.
Materials. 23.6 Notice of Radioactive
Material.
23.4 Pollution Prevention, 23.9 Contractor Compliance with
Environmental Management Systems, Environmental Management
and Waste Reduction. Systems.
23.10 Federal Compliance With
Right-To-Know Laws and Pollution
Prevention Requirements.
23.8 Greenhouse Gas Emissions........ 23.8 Ozone-Depleting Substances
and Greenhouse Gases (Content
related to greenhouse gas
emission disclosures only).
26.5 Drug-Free Workplace............. 23.5 Drug-Free Workplace.
26.6 Encouraging Contractor Policies 23.11 Encouraging Contractor
to Ban Text Messaging While Driving. Policies to Ban Text Messaging
While Driving.
------------------------------------------------------------------------
The following distribution table illustrates where the current FAR
part 23 subparts are distributed under this proposed rule:
Distribution Table
------------------------------------------------------------------------
Old FAR subpart New FAR subpart or section
------------------------------------------------------------------------
23.1 Sustainable Acquisition Policy.. 23.1 Sustainable Products and
Services.
23.2 Energy and Water Efficiency and 23.107-3 Energy-consuming
Renewable Energy. products.
23.2 Energy Savings Performance
Contracts.
23.3 Hazardous Material 23.3 Hazardous Material
Identification and Material Safety Identification, Material Safety
Data. Data, and Notice of Radioactive
Materials.
23.4 Use of Recovered Materials and 23.107-1 Products containing
Biobased Products. recovered materials.
23.107-2 Biobased products.
23.5 Drug-Free Workplace............. 26.5 Drug-Free Workplace.
23.6 Notice of Radioactive Material.. 23.3 Hazardous Material
Identification, Material Safety
Data, and Notice of Radioactive
Materials.
[[Page 51675]]
23.7 Contracting for Environmentally 23.108-3 Products and services
Preferable Products and Services. that are subject to EPA
Recommendations of
Specifications, Standards, and
Ecolabels.
23.8 Ozone-Depleting Substances and 23.107-4 Products that contain,
Greenhouse Gases. use, or are manufactured with
ozone-depleting substances or
products that contain or use
high global warming potential
hydrofluorocarbons.
23.8 Greenhouse Gas Emissions.
23.9 Contractor Compliance with 23.4 Pollution Prevention,
Environmental Management Systems. Environmental Management
Systems, and Waste Reduction.
23.10 Federal Compliance With Right- 23.4 Pollution Prevention,
To-Know Laws and Pollution Environmental Management
Prevention Requirements. Systems, and Waste Reduction.
23.11 Encouraging Contractor Policies 26.6 Encouraging Contractor
to Ban Text Messaging While Driving. Policies to Ban Text Messaging
While Driving.
------------------------------------------------------------------------
B. Sustainable Products and Services
The following is a summary of the proposed changes to FAR subpart
23.1, to be titled ``Sustainable Products and Services,'' to implement
requirements for purchasing sustainable products and services in E.O.
14057, Memorandum M-22-06, and the CEQ implementing instructions.
1. Definitions
A definition of ``sustainable products and services'' is proposed
in FAR 2.101 and is applicable wherever the term is used in the FAR.
The term is defined as products and services that are subject to and
meet statutory purchasing program requirements or other EPA purchasing
program requirements. For the statutory purchasing programs, the
definition references the following types of products and includes a
reference to the source statute, the lead agency implementing
regulations, and the program website:
Products containing recovered material designated by the
U.S. Environmental Protection Agency (EPA) under the Comprehensive
Procurement Guidelines.
Energy efficient products that are ENERGY STAR[supreg]
certified or Federal Energy Management Program (FEMP)-designated
products.
Biobased products meeting the USDA content requirements
under the BioPreferred[supreg] program.
Acceptable chemicals, products, and manufacturing
processes listed under EPA's SNAP program, which ensures a safe and
smooth transition away from substances that contribute to the depletion
of stratospheric ozone.
The definition identifies the following required EPA purchasing
programs and provides the link to each associated program website:
WaterSense[supreg] labeled (water efficient) products and
services.
Safer Choice-certified products (products that contain
safer chemical ingredients).
Products and services that meet or exceed EPA
Recommendations of Specifications, Standards, and Ecolabels.
As a result of the proposed changes described in section II.A. of
this preamble, most of the definitions associated with the existing
statutory purchasing programs are consolidated in FAR section 23.101,
since these terms will only be used in FAR subpart 23.1. This includes
the definitions of ``EPA-designated item,'' ``global-warming
potential,'' ``high global warming potential,'' ``hydrofluorocarbons,''
and ``ozone-depleting substances.'' The definition of the term ``USDA-
designated item'' is also transferred, but the term itself is changed
to ``USDA-designated product category'' to better align with USDA
program requirements.
The definitions of ``biobased product'' and ``recovered material''
in FAR 2.101 are also relevant to this revised subpart, but will remain
in FAR part 2 since these terms are used throughout the FAR. Changes
are proposed to the definition of ``biobased product'' to implement
section 9002 of the Agricultural Act of 2014 (Pub. L. 113-79) and
section 9001 of the Agriculture Improvement Act of 2018 (Pub. L. 115-
334), which revised the definition of ``biobased product'' (see 7
U.S.C. 8101) for the purposes of the biobased procurement program.
Changes are also proposed to the definition of ``recovered material''
to remove a pointer to an alternative definition applicable to FAR
subpart 11.3 (see discussion in section II.C.1. of this preamble) and
to add the statutory citation for the definition.
In addition, this rule proposes moving the definition of ``United
States'' from FAR section 23.001 to FAR section 23.101. This change
will make the definition applicable only in FAR subpart 23.1 where the
statutory requirements for purchasing sustainable products and services
are being consolidated. The definition is revised to cite Memorandum M-
22-06 as the source of the definition and to clarify the definition is
for the term when it is used in a geographical sense. Paragraph (9) of
the definition of ``United States'' in FAR section 2.101 (the
definition that is applicable throughout the FAR, except as specified)
will also be revised to point to FAR section 23.101 as the source for
the definition that is applicable to FAR subpart 23.1.
The existing definition of ``contract action'' currently in FAR
section 23.101 remains. This definition, however, is revised to align
with Memorandum M-22-06 by removing reference to any non-FAR based
agreements. The list of excluded actions that are not subject to the
FAR is not necessary, since definitions in the FAR are only applicable
to actions that are subject to the FAR.
2. Scope and Authorities
Per FAR 23.100, Scope, the proposed subpart provides policies and
procedures for the procurement of sustainable products and services.
The requirements of FAR subpart 23.1 are applicable to all contract
actions, including those using FAR part 12 procedures for the
acquisition of commercial products, including commercially available
off-the-shelf (COTS) items, and commercial services and acquisitions
valued at or below the micro-purchase threshold. FAR section 23.102 is
revised to cite E.O. 14057, Memorandum M-22-06, and the CEQ
implementing instructions, as well as the authorities for the existing
statutory purchasing programs to be consolidated at FAR section 23.107.
3. Policy
FAR 23.103(a) outlines the policy that agencies shall procure
sustainable products and services to the maximum extent practicable.
Procuring sustainable products and services will be considered
practicable, unless an agency cannot: (1) competitively acquire a
product or service within a reasonable
[[Page 51676]]
performance schedule; (2) acquire a product or service that meets
reasonable performance requirements; or (3) acquire a product or
service at a reasonable price. For ENERGY STAR[supreg] or FEMP-
designated products, a price is reasonable if it is cost-effective over
the life of the product taking energy cost savings into account. This
standard maintains existing exceptions to the statutory mandates to
purchase certain energy-efficient products, biobased products, and
products containing recovered material. This rule proposes to apply
this standard of what is ``practicable'' to the other categories of
sustainable products and services.
FAR 23.103(b) establishes requirements for prioritizing sustainable
products and services. Specifically, when procuring sustainable
products and services, agencies shall ensure compliance with all
applicable statutory purchasing programs (consolidated in FAR section
23.107) and prioritize multi-attribute sustainable products and
services, i.e., that meet the requirements of both a statutory
purchasing program and a required EPA purchasing program. The
prioritization also notes that contracting officers are not required to
procure products and services that meet the required EPA purchasing
programs (see programs listed in section 23.108 of subpart 23.1) when
doing so would conflict with statutes, Executive orders, or regulations
that impose domestic manufacturing and content requirements.
Finally, this proposed rule will revise the description of required
products under contract actions for services that will be subject to
the new policy; FAR 23.103(c) will describe such products as those that
are: (1) delivered to the Government during performance; (2) acquired
by the contractor for use in performing services under a Government
contract where the cost of the products is a direct cost to a
Government contract; or (3) furnished by the contractor for use by the
Government, including use at Government-owned contractor-operated
facilities. Paragraph (c)(2) reflects a change from the existing
description of products acquired by the contractor for use in
performing services at a Federally controlled facility to ensure
products used in service contracts that are a direct cost to the
Government are sustainable products. In addition, this description
clarifies that products provided by the contractor during performance
at Government-owned contractor-operated facilities are expected to be
sustainable products. These changes are necessary to ensure that the
Government procures sustainable products and services to the maximum
extent practicable pursuant to E.O. 14057, Memorandum M-22-06, and the
CEQ implementing instructions.
4. Procedures
General procedures to carry out the new policy are provided at FAR
23.104. Procuring sustainable products and services is generally
considered practicable, but the contracting officer may consider a
procurement not practicable based on a written justification from the
requirements official. At FAR section 23.105, the rule will also
continue to provide for certain exceptions, such as for weapon systems
and contracts performed outside of the United States, unless the agency
head determines that such application is in the interest of the United
States, and other existing exceptions provided by statute. The proposed
exemptions at FAR 23.106 are revised to align with the exemption
authority provided in section 602 of E.O. 14057 to allow agency heads
to exempt certain activities and acquisitions. The exemptions also
allow the Director of National Intelligence to exempt certain
intelligence activities. Some agency head exemptions require written
notification to the Chair of the CEQ. Finally, a proposed exemption is
included at FAR 23.106 where an agency head determines the supplies or
services are to be used to facilitate defense against or recovery from
cyber, nuclear, biological, chemical, or radiological attack; to
facilitate provision of international disaster assistance; or to
support response to an emergency or major disaster. In such
circumstances, the agency head determination serves as the written
justification, and the contracting officer is encouraged, but not
required to procure sustainable products and services.
When there is a written justification that it is not practicable to
procure sustainable products or services or an exception or exemption
applies, and only some of the potential sustainable products and
services are covered by the justification, exception, or exemption, the
contracting officer must ensure that the solicitation and contract
identify any sustainable products or services that are not subject to
the requirements of FAR subpart 23.1 and the associated clause at FAR
52.223-XX, Sustainable Products and Services.
5. Purchasing Program Requirements
The specific requirements and resources associated with the
purchasing programs will be consolidated in sections 23.107 and 23.108.
FAR sections 23.107-1 through 23.107-4 will address the existing
requirements for the four statutory purchasing programs for: products
containing recovered materials; biobased products; energy-consuming and
water-consuming products; and products that contain, use, or are
manufactured with ozone-depleting substances and products that contain
or use high global warming potential hydrofluorocarbons. Within these
sections are summaries of the overarching programs, references to
statutory authority and lead agency implementing regulations, agency
program requirements, any special procedures for contracting officers,
and web addresses for primary program resources and information. FAR
sections 23.108-1 through 23.108-3 will address the required EPA
purchasing programs: water efficient products; chemically-intensive
products; and products and services that are subject to EPA
Recommendations of Specifications, Standards, and Ecolabels. Each
section describes the EPA program and provides web addresses for access
to additional information about and resources for the programs.
6. Provisions and Clauses
FAR 23.109(a) prescribes a new clause at FAR 52.223-XX, Sustainable
Products and Services, for use in all solicitations and contracts
unless there is a written justification that it is not practicable to
procure sustainable products and services, or an authorized exception
or exemption applies, and the scope of the justification, exception, or
exemption covers all potential sustainable products and services under
a contract.
This clause directs contractors to deliver and furnish sustainable
products and services for Government use, including use at Government-
owned contractor-operated facilities; incorporate sustainable products
and services into the construction of a public building or public
works; and furnish sustainable products and services for contractor use
in performing services under the contract, where the cost of the
products is a direct cost to the contract (versus costs that are
normally applied to a contractor's general and administrative expenses
or indirect costs). However, the contractor is not required to provide
sustainable products or services where the contracting officer has
identified in the solicitation that a certain product or service is not
subject to the clause. The clause provides direction to the contractor
on how to prioritize statutory and multi-attribute sustainable products
and services and refers the contractor to
[[Page 51677]]
the Green Procurement Compilation (available at https://sftool.gov/greenprocurement) as a resource that can be reviewed for a
comprehensive list of sustainable products and services and other
related sustainability guidance.
As discussed in section III. of this preamble, this new omnibus
clause is included in the clause at FAR 52.212-5, Contract Terms and
Conditions Required To Implement Statutes or Executive Orders--
Commercial Products and Commercial Services, and the clause at FAR
52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services). In the clause at FAR
52.212-5, the contracting officer will check the box next to FAR clause
52.223-XX to show that it applies to acquisition of commercial products
and commercial services; this will be the case unless there is a
written justification, exception, or exemption that covers all
potential sustainable products and services in an acquisition. For
simplified acquisitions, a new paragraph proposed at FAR 13.302-5
directs the contracting officer to remove FAR clause 52.223-XX from the
clause at FAR 52.213-4 when there is a written justification,
exception, or exemption that covers all potential sustainable products
and services in an acquisition.
As mentioned in section II.A.2. of this preamble, several of the
existing prescriptions for the provisions and clauses associated with
statutory purchasing programs are transferred to FAR section 23.109:
Paragraph (b) of this section provides the existing
prescriptions for the provision at FAR 52.223-4 and the clause at FAR
52.223-9 associated with EPA-designated items.
Paragraph (c) of this section provides the existing
prescriptions for the provision at FAR 52.223-1 and the clause at FAR
52.223-2 related to biobased products in USDA-designated product
categories.
Paragraph (d) of this section, provides the existing
prescriptions for the clauses at FAR 52.223-11, 52.223-12, 52.223-20,
and 52.223-21 related to products containing ozone-depleting substances
and hydrofluorocarbons.
Except for FAR provision 52.223-1, there are no proposed changes to
the existing prescriptions for these provisions and clauses, except to
relocate content to the new consolidated section. The prescription for
FAR 52.223-1, Biobased Product Certification, is revised to highlight
an existing categorical exception for certain biobased products (see
FAR 23.105(d)). Based on this exception, certification is not required
for a solicitation that includes biobased products to be used in
military equipment (products or systems designed or procured for combat
or combat-related missions), spacecraft systems, or launch support
equipment.
There are no substantive changes proposed to the content of
provision FAR 52.223-1, except to update the statutory references.
Changes are proposed to the clause at FAR 52.223-2, to include a title
change, the addition of defined terms, and removal of purchasing
language that is now covered by the omnibus clause at FAR 52.223-XX. As
a result, this clause will focus on the existing reporting requirements
for biobased products in USDA-designated products, which are unchanged
as a result of this proposed rule.
Changes are also proposed in FAR clauses 52.223-11 and 52.223-12 to
remove the requirements to track and report annually in the System for
Award Management the amount of hydrofluorocarbon contained in, added
to, or taken out of equipment or appliances under a contract. While the
underlying requirement for alternatives to higher global warming
potential hydrofluorocarbons remains in the FAR, the Government is
looking towards other greenhouse gas management and tracking efforts.
While there is no change to the prescription for Alternate I of FAR
clause 52.223-9, Estimate of Percentage of Recovered Material Content
for EPA-Designated Items, this alternate is proposed for removal from
the list of annual representations and certifications at FAR 4.1202 and
in the provision at FAR 52.204-8, Annual Representations and
Certifications. The alternate requires a contractor employee to certify
that (1) they are an officer or employee responsible for the
performance of the contract and (2) that the percentage of recovered
material content for EPA-designated items met the applicable contract
specifications or other contractual requirements. This certification
should occur at the end of contract performance, not at the entity
level.
The clauses at FAR 52.223-15, Energy Efficiency in Energy-Consuming
Products, and FAR 52.223-17, Affirmative Procurement of EPA-designated
Items in Service and Construction Contracts, are proposed to be removed
and reserved. These clauses direct contractors to provide in the
performance of the contract energy efficient products or products
containing recovered material content that are EPA-designated items.
Both clauses are considered subsumed by the new omnibus clause at FAR
52.223-XX, which directs contractors to provide sustainable products
and services in the performance of the contract, including ENERGY
STAR[supreg] products, FEMP-designated products, and products
containing recovered material designated by the EPA.
As mentioned in section II.A.2 of this preamble, all of the clauses
associated with EPEAT[supreg] requirements and their associated
prescription in FAR subpart 23.7 are proposed to be removed and
reserved. These clauses are also no longer necessary, since the
requirement to procure products and services that meet EPA
Recommendations of Specifications, Standards, and Ecolabels is
addressed in the new omnibus clause at FAR 52.223-XX. As discussed in
section II.A.2. of this preamble, EPEAT[supreg] is one of EPA's
Recommendations of Specifications, Standards, and Ecolabels.
7. Cross-References
This proposed rule will also update cross-references throughout the
FAR to the requirements now consolidated in FAR subpart 23.1.
Specifically, the listings of various purchasing programs in the
following FAR sections are proposed to be replaced with a cross-
reference to requirements related to the procurement of sustainable
products and services (as defined in 2.101) in accordance with FAR
subpart 23.1:
FAR 7.103(p)(1) regarding acquisition planning
requirements.
FAR 11.002(d)(1) and (2) regarding describing agency
needs.
FAR 13.201(f) regarding acquisition at or below the micro-
purchase threshold.
FAR 42.302(a)(68)(ii) regarding contract administration
requirements.
In addition, a revision is proposed at FAR 37.102(i) to change the
cross-reference from FAR part 23 to FAR subpart 23.1. A revision is
also proposed at FAR 39.101(a)(1)(ii) to refer to FAR subpart 23.1
instead of just EPEAT[supreg] standards in reference to acquiring
information technology.
C. Other Changes
1. Special Requirements for Paper
The special requirements for paper in FAR subpart 4.3 and FAR
section 11.303 are proposed for removal. This subpart and section
implemented requirements from E.O. 13423, Strengthening Federal
Environmental, Energy, and Transportation Management, and E.O. 13514,
Federal Leadership in Environmental, Energy, and Economic Performance,
both of which are revoked.
[[Page 51678]]
FAR subpart 4.3 promotes the use of electronic commerce and directs
agencies to require contractors to print or copy double-sided on at
least 30 percent postconsumer fiber paper, whenever practicable, for
paper documents related to an acquisition to be submitted to the
Government. The clause at FAR 52.204-4, Printed or Copied Double-Sided
on Postconsumer Fiber Content Paper, requires printing or copying
single-sided on at least 30 percent postconsumer fiber paper. Also,
section 11.303 establishes additional content standards for paper.
These special requirements for paper are no longer necessary, given
that electronic commerce is the primary means of conducting
acquisition-related activities, printing double-sided on recycled paper
is a common practice, and agencies will be required to procure products
(including paper) that meet the minimum recovered material content
standards established by the EPA Comprehensive Procurement Guidelines.
2. Federal Facility Requirements
As discussed in section II.A.4. of this preamble, this proposed
rule seeks to consolidate requirements related to Federal facilities in
a single subpart. The following is a summary of the proposed changes to
the content of the subpart.
a. Pollution Prevention and Right-to-Know Laws
The existing requirements currently in FAR subpart 23.10 and the
clause at FAR 52.223-5, Pollution Prevention and Right-to-Know
Information, are based on statute. This rule proposes to transfer the
contents of the subpart and the prescription for the clause to FAR
subpart 23.4. Alternates I and II to this clause, however, are being
removed, since the alternates implement content from revoked Executive
orders. This proposed rule does not make any changes to the remaining
existing content, except to renumber the sections and paragraphs and
turn the content currently at FAR 23.1002 into a definition of
``Federal facility.'' Conforming changes are proposed throughout the
FAR to update cross-references.
b. Environmental Management Systems
This rule proposes to transfer existing requirements in FAR subpart
23.9 related to contractor compliance with an agency environmental
management systems (EMS) to FAR subpart 23.4. This rule proposes
changes to the policy to clarify that section 23.404 and the clause at
FAR 52.223-19, Compliance with Environmental Management Systems, apply
if an agency uses an EMS and contractor activities affect aspects of
the agency's environmental management. This proposed change aligns with
E.O. 14057 and the CEQ implementing instructions, which give agencies
discretion to use an EMS to achieve the goals in E.O. 14057. Conforming
changes are proposed throughout the FAR to update cross-references.
c. Waste Reduction Programs
This rule proposes to update FAR clause 52.223-10, Waste Reduction
Program, to replace the reference to section 3(e) of E.O. 13423 with a
reference to section 207 of E.O. 14057. This FAR clause is prescribed
for use in all solicitations and contracts for contractor operation of
Government-owned or -leased facilities and all solicitations and
contracts for support services at Government-owned or -operated
facilities; it requires the contractor to maintain a program to promote
cost-effective waste reduction in all operations and facilities covered
by a contract. The new E.O. and CEQ implementing instructions provide
direction to agencies on pollution prevention and reducing waste,
therefore this clause is retained; however, the prescription is
transferred to FAR subpart 23.4 where facility-related requirements
have been consolidated.
3. Construction and Architect-Engineer Contracts
This rule proposes to update agency requirements for construction
and architect-engineer contracts at FAR 36.104(b)(1). Currently,
agencies must ensure that all new construction, major renovation, or
repair and alteration of Federal buildings complies with the Guiding
Principles for Federal Leadership in High-Performance and Sustainable
Buildings. This proposed rule will update this paragraph to align with
the directive in the CEQ implementing instructions that all new
construction and modernization projects greater than 25,000 gross
square feet are designed, constructed, and maintained to meet and,
wherever practicable, exceed Federal sustainable design and operations
principles for new construction and modernization projects in
accordance with the CEQ's Guiding Principles for Sustainable Federal
Buildings and Associated Instructions (Guiding Principles) (available
at https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf); and that all
renovation projects of existing Federal buildings must use, to the
greatest extent technically feasible and practicable, Federal
sustainable design and operations principles for existing buildings in
accordance with the Guiding Principles. FAR 36.104(b)(2) is also
proposed to be removed and the goals in FAR 36.104(b)(5) are updated to
require agencies to divert at least 50 percent of non-hazardous
construction and demolition materials and debris.
4. Content Proposed for Removal
This rule proposes to remove the terms ``renewable energy'' and
``renewable energy technology'' from FAR section 2.101. As a result of
the streamlining described in this proposed rule to direct agencies to
procure sustainable products and services, including energy and water
efficient products, the terms are no longer used in FAR parts 7, 11, or
23.
The term ``water consumption intensity'' is currently used at FAR
23.202 to describe broad agency policies from prior E.O.s to reducing
potable water consumption intensity; while this objective is still
relevant, such requirements are already implemented in the CEQ Guiding
Principles for Sustainable Federal Buildings and associated
instructions (Guiding Principles). As discussed in section II.C.3. of
this preamble, FAR 36.104 directs agencies to ensure that all new
construction, major renovation, or repair and alteration of Federal
buildings complies with the Guiding Principles.
Similarly, the direction at FAR 23.202(b)(2) and (3) for agencies
to use and manage water through water-efficient means, including storm
water management in accordance with section 438 of the Energy
Independence and Security Act of 2007 (42 U.S.C. 17094), are covered in
the CEQ Guiding Principles and, thus, proposed for removal.
Finally, the agency policy objectives described at FAR 23.703 are
proposed for removal, since these objectives are covered by the
streamlined procedures proposed under this rule. FAR 23.002 includes an
overarching policy statement for the streamlined FAR part. In addition,
the statement at FAR 23.703 regarding the statutory requirement to
procure plastic ring carriers that are degradable (7 U.S.C. 8102(c)(1))
is proposed for removal, since the EPA implementing regulations at 40
CFR part 238 are directed at manufacturers and importers of plastic
ring carriers. The implementing regulations also provide information on
an approved consensus standard for plastic ring carriers, which may be
incorporated into design
[[Page 51679]]
documents or scopes of work, as appropriate.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
The new clause proposed at FAR 52.223-XX, Sustainable Products and
Services, is prescribed at FAR 23.109(a) for use in all solicitations
and contracts, unless a justification, exception, or exemption applies
to all potential sustainable products and services in an acquisition.
The new omnibus clause will be required to be included in covered
solicitations and contracts valued at or below the simplified
acquisition threshold and for commercial products, including COTS
items, or commercial services. It is necessary to apply the
requirements of this clause to these types of acquisition to achieve
the intended policy outcome, which is for the Government to meet
statutory purchasing program requirements and to procure sustainable
products and services under required EPA purchasing programs to the
maximum extent practicable.
The following FAR clauses are proposed for removal under this FAR
case and will no longer be listed in FAR clause 52.212-5, Contract
Terms and Conditions Required To Implement Statutes or Executive
Orders--Commercial Products and Commercial Services, as applicable to
acquisitions of commercial products or commercial services:
FAR 52.223-13, Acquisition of EPEAT[supreg]-Registered
Imaging Equipment, and its Alternate I.
FAR 52.223-14, Acquisition of EPEAT[supreg]-Registered
Televisions, and its Alternate I.
FAR 52.223-15, Energy Efficiency in Energy-Consuming
Products.
52.223-16, Acquisition of EPEAT[supreg]-Registered
Personal Computer Products, and its Alternate I.
Since it is proposed for removal, FAR clause 52.223-15 will also no
longer be listed in 52.213-4, Terms and Conditions--Simplified
Acquisitions (Other Than Commercial Products and Commercial Services),
as applicable to simplified acquisitions.
This rule does not include any proposed changes to the existing
prescriptions for other FAR part 23 solicitation provisions or contract
clauses, except to renumber the section or paragraph where content has
been relocated to a new FAR part or subpart.
IV. Severability
If any portion (e.g., section, clause, sentence) of this proposed
rulemaking is held to be invalid or unenforceable facially, or as
applied to any entity or circumstance, it shall be severable from the
remainder of this rulemaking, and shall not affect the remainder
thereof, or its application to entities not similarly situated or to
other dissimilar circumstances. The various portions of this rule are
independent and serve distinct purposes. Even if one aspect were
rendered invalid, the other benefits of these rules would still be
applicable. As an illustrative but not exhaustive example, were a court
to stay or invalidate the proposed changes to subpart 23.1 regarding
sustainable products and services, the agencies would intend the
broader restructuring of FAR part 23 to remain effective.
V. Expected Impact of the Rule
A. FAR Part 23 Restructuring
Currently, FAR part 23 addresses various policy initiatives,
ranging from requirements related to procuring sustainable products and
services and other energy and environmental matters to requirements for
a drug-free workplace and encouraging contractors to ban texting while
driving. The FAR part has been revised to provide a cohesive message on
the important role of sustainable acquisition and to provide clear
policy and directions for the contracting and contractor communities.
The proposed changes to restructure FAR part 23 will establish a clear
and simplified framework for the Government to communicate requirements
related to environmental matters and sustainable acquisition.
The proposed transfer of non-environmental matters to FAR part 26
is the first step to focus the messaging in FAR part 23 on the
environment and sustainable acquisition. Then, within FAR part 23,
existing content on similar topics, such as purchasing requirements,
hazardous and radioactive material requirements, and Federal facility
requirements, will be consolidated into single subparts to ensure that
the contracting workforce is able to easily access and understand
related policies and procedures. Finally, content based on revoked
Executive orders, such as double-sided copying and printing
requirements in FAR clause 52.204-4 and the alternates to FAR clause
52.223-5, is proposed for removal (see sections II.C.1. and II.C.2.a of
this preamble). In addition, the contractors will no longer be required
to comply with the annual hydrofluorocarbon reporting requirements
contained in FAR clauses 52.223-11 and 52.223-12, which are proposed
for removal (see discussion in section II.B.6. of this preamble).
B. Sustainable Products and Services
This proposed rule will not only consolidate content in FAR subpart
23.1, but also streamline and standardize the policy and procedures for
purchasing sustainable products and services, which will help agencies
and industry better understand and comply with the purchasing program
requirements already implemented in the FAR. In accordance with
direction provided under E.O. 14057, this rule proposes to require
agencies to purchase sustainable products and services to the maximum
extent practicable. This requirement is not new. Agencies are already
required to ensure that the overwhelming majority of their contract
actions meet the various purchasing program requirements. For example:
FAR subpart 23.1 currently requires Federal agencies to
advance sustainable acquisition by ensuring that 95 percent of new
contract actions for the supply of products and for the acquisition of
services (including construction) require that the products are energy-
efficient (ENERGY STAR[supreg] or Federal Energy Management Program
(FEMP)-designated); water-efficient; biobased; environmentally
preferable, or non-toxic or less toxic alternatives); non-ozone
depleting; or made with recovered materials.
The existing statutory purchasing program requirements
described in the proposed rule for consolidation in FAR section 23.107
are currently implemented in FAR subparts 23.2, 23.4, and 23.8.
The requirement to procure products and services that meet
other EPA purchasing programs described in proposed FAR section 23.108
clarifies the existing requirement at FAR 23.703(b)(1) for agencies to
maximize the use of environmentally preferable products and services
(based on EPA-issued guidance).
While this proposed rule introduces the WaterSense[supreg]
label by name, FAR subpart 23.7 already directs agencies to maximize
environmentally preferable products and services based on EPA-issued
guidance and to promote water conservation, which would include EPA's
WaterSense[supreg] program. In addition, FAR subpart 23.2 currently
directs agencies to procure DOE FEMP-designated products, which include
water-consuming products with the WaterSense[supreg] label, and the CEQ
Guiding Principles directed for use at
[[Page 51680]]
FAR 36.104 also address requirements for WaterSense[supreg] products.
While the Safer Choice ecolabel is not currently
referenced by name in the FAR, FAR subpart 23.7 directs agencies to
give preference to the procurement of acceptable alternative chemicals
and products that reduce overall risks to human health. Safer Choice is
also a well-known ecolabel for products that contain safer chemicals, a
label that many public institutions, private companies, and individuals
seek out regardless of a directive to avoid exposure to toxic
chemicals.
Under this proposed rule, agencies will be required to continue
ensuring that products and services meet statutory purchasing program
requirements and to prioritize multi-attribute products and services,
which are products and services that meet more than one statutory
purchasing program and one or more required EPA purchasing programs.
What is practicable is defined in a uniform manner for all purchasing
programs and aligns with existing statutory basis for not procuring
energy-efficient products, biobased products, and products containing
recovered material. In addition, the existing exceptions (such as those
for acquisitions performed outside the United States, weapon systems,
space systems, etc.) are maintained in this proposed rule. The proposed
exemptions are also generally maintained, though an additional
exemption for response to national emergencies is also provided.
Finally, this proposed rule seeks to establish a standard way for
agencies to communicate the requirements for sustainable products and
services to contractors via a new proposed contract clause at FAR
52.223-XX, Sustainable Products and Services. This new clause will
enable agencies to communicate requirements for sustainable products
and services in a uniform manner and to better enforce the requirement
to procure sustainable products and services as a standard term and
condition of a contract. In addition to making clear that agencies
expect to have sustainable products and services delivered in
performance of the contract, the proposed rule introduces a requirement
that contracting officers to identify in the solicitation and contract
any products and services that are subject to an exception or exemption
per a written justification from the requiring activity. While
contracting officers already work with requiring activities to document
when they are not able to meet the existing statutory purchasing
requirements, this proposed rule will ensure that this information is
clearly communicated to offerors and contractors.
According to data available in the Federal Procurement Data System
for fiscal years 2019 through 2021, on average approximately 85,826
contractors are awarded Federal contracts each year, of which
approximately 61,797 contractors are small businesses. These
contractors should be familiar with the existing purchasing
requirements proposed for consolidation in FAR subpart 23.1. However,
contractors will need to become familiar with the new omnibus clause at
FAR 52.223-XX where they will find all applicable purchasing program
requirements in one place. Contractors will no longer be required to
review the stand-alone provisions and clauses at FAR 52.223-13, 52.223-
14, 52.223-15, 52.223-16, and 52.223-17 proposed for removal under this
rule, all of which provide varying instructions to contractors on the
requirements for existing purchasing programs, such as ENERGY
STAR[supreg], FEMP, products containing recovered material, and
EPEAT[supreg]-registered electronic products.
As stated, the policy for agencies to procure sustainable products
and services is not new with the majority of these requirements being
in place since 2011 though agencies have had some discretion in how to
implement. This proposed rule will help the Government ensure it is
meeting its goal to procure sustainable products and services to the
maximum extent practicable in order to reduce emissions, save natural
resources, and protect individuals, communities, and the environment.
Contractors that do not currently prioritize or propose sustainable
products and services when developing offers in response to Government
contracts may need to adjust their internal processes and supply
chains, as necessary, to ensure that they are in fact delivering
sustainable products and services under Government contracts. While
this additional burden is acknowledged, it is not possible to quantify
the potential burden for such activities or to estimate the number of
entities potentially impacted by this change in means of policy
communication and enforcement.
C. Other Changes
While the clause at FAR 52.204-4 to require printing and copying
double-sided on postconsumer fiber content paper is removed, the impact
is not considered significant, since the majority of acquisitions are
conducted electronically. Contractors will no longer be required to
report information on hydrofluorocarbons under contracts that contain
FAR clause 52.223-11, Ozone-Depleting Substances and High Global
Warming Potential Hydrofluorocarbons, and 52.223-12, Maintenance,
Service, Repair, or Disposal of Refrigeration Equipment and Air
Conditioners, a reduction in burden for contractors. The alternates to
FAR clause 52.223-5, Pollution Prevention and Right-to-Know
Information, and associated reporting requirements related to agency
EMS are also removed; however, per FAR 52.223-19, contractors will
still be required to comply with any agency specific requirements for
EMS.
VI. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under Section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA expect this proposed rule when final may have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.
An Initial Regulatory Flexibility Analysis (IRFA) has been performed
and is summarized as follows:
E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through
Federal Sustainability, directs agencies to reduce emissions,
promote environmental stewardship, support resilient supply chains,
drive innovation, and incentivize markets for sustainable products
and services. As part of this effort and pursuant to the OMB, CEQ,
and CPO Memorandum M-22-06 and the CEQ Implementing Instructions for
E.O. 14057, agencies are required to purchase, to the maximum extent
practicable and after meeting statutory mandates, sustainable
products and services identified or recommended by EPA.
DoD, GSA, and NASA are proposing to amend the FAR to restructure
and update FAR part 23 to focus on current environmental and
sustainability matters and to implement the requirements in E.O.
14057 and associated implementing instructions for agencies to
procure sustainable products and services to the maximum extent
practicable. Promulgation of the FAR is authorized by 40
[[Page 51681]]
U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
This proposed rule seeks to streamline FAR part 23 by dedicating
the part to environmental matters, consolidating purchasing program
requirements in FAR subpart 23.1, dedicating FAR subpart 23.2 to
energy savings performance contracts, consolidating hazardous and
radioactive material requirements in FAR subpart 23.3, consolidating
Federal facility requirements in FAR subpart 23.4, and dedicating
FAR subpart 23.8 to requirements associated with greenhouse gas
emissions.
This rule proposes to implement the E.O. 14057 requirements for
sustainable products and services in FAR subpart 23.1. As a result
of this rule, the requirement for Federal agencies to ensure that 95
percent of new contract actions are for sustainable products and
services is replaced with the requirement for agencies to procure
sustainable products and services to the maximum extent practicable.
In prioritizing sustainable products and services, agencies shall
ensure they are meeting existing statutory mandates and prioritize
multi-attribute products and services, which are those that meet
both statutory and other required EPA purchasing program
requirements.
Any small business competing on Federal contracts for products
or services will need to become familiar with this rule. According
to data available in the Federal Procurement Data System for fiscal
years 2019 through 2021, on average approximately 85,826 contractors
are awarded Federal contracts each year, of which approximately
61,797 contractors (72 percent) are small businesses.
Small businesses who do business with the Federal Government
should be familiar with the existing statutory purchasing program
requirements currently at FAR subparts 23.2, 23.4, and 23.8, as well
as the requirement for agencies to procure environmentally
preferable products, including EPEAT[supreg]-registered electronic
products, in FAR subpart 23.7. Small businesses will need to become
familiar with the new omnibus clause at FAR 52.223-XX, Sustainable
Products and Services, which streamlines the purchasing program
requirements in an omnibus clause. Small businesses will need to
validate and ensure that they are providing products and services
that fall into the following categories, unless the contracting
officer has specified that certain sustainable products or services
are not subject to the clause:
Products containing recovered material designated by
the EPA under the Comprehensive Procurement Guidelines (CPG) (see
https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
Energy efficient products that are ENERGY STAR[supreg]
certified or Federal Energy Management Program (FEMP)-designated
products (see https://www.energy.gov/eere/femp/search-energy-efficient-products and https://www.energystar.gov/products?s=mega).
Biobased products meeting the content requirement of
the U.S. Department of Agriculture (USDA) under the
BioPreferred[supreg] program (see https://www.biopreferred.gov).
Acceptable chemicals, products, and manufacturing
processes listed under EPA's Significant New Alternatives Policy
(SNAP) program, which ensures a safe and smooth transition away from
substances that contribute to the depletion of stratospheric ozone
(see https://www.epa.gov/snap).
WaterSense[supreg] labeled (water efficient) products
and services (see https://www.epa.gov/watersense/watersense-products).
Safer Choice-certified products (products that contain
safer chemical ingredients) (see https://www.epa.gov/saferchoice/products).
Products and services that meet EPA Recommendations of
Specifications, Standards, and Ecolabels, demonstrated through third
party certification (see https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
In addition to the resources identified for each purchasing
program above, small businesses may also consult the Green
Procurement Compilation available at https://sftool.gov/greenprocurement, which provides a comprehensive list of required
sustainable products and services and other related sustainability
guidance.
Finally, several existing reporting requirements are being
removed. Small businesses will no longer be required to report
information on hydrofluorocarbons under contracts that contain FAR
clause 52.223-11, Ozone-Depleting Substances and High Global Warming
Potential Hydrofluorocarbons, and 52.223-12, Maintenance, Service,
Repair, or Disposal of Refrigeration Equipment and Air Conditioners.
Reporting requirements associated with agency EMSs in the alternates
to FAR clause 52.223-5, Pollution Prevention and Right-to-Know
Information, are also removed, though small businesses would still
be required to comply with any agency specific requirements for EMS.
This proposed rule does not duplicate, overlap, or conflict with
other Federal rules. This proposed rule will continue to implement
the following lead agency regulations on the statutory purchasing
program requirements:
EPA regulations on a Comprehensive Procurement
Guideline for Products Containing Recovered Materials (40 CFR part
247).
Department of Energy regulations on Agency Procurement
of Energy Efficient Products (10 CFR part 436, subpart C).
USDA regulations on Guidelines for Designating Biobased
Products for Federal Procurement (7 CFR part 3201).
EPA regulations on the Protection of Stratospheric
Ozone; Significant New Alternatives Policy Program (40 CFR part 82,
subpart G).
This rule does not include any proposed changes to the current
greenhouse gas disclosure requirements at FAR 23.8 and the provision
at FAR 52.223-22, except to renumber the section and paragraph
numbers. DoD, GSA, and NASA have proposed changes to these
requirements under a separate proposed rule (see FAR case 2021-015,
Disclosure of Greenhouse Gas Emissions and Climate-related Financial
Risk, published at 87 FR 68312, November 14, 2022).
There are no significant alternatives to the proposed rule that
would accomplish the stated objectives to ensure that agencies
procure sustainable products and services to the maximum extent
practicable.
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 proposed 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 in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2022-006),
in correspondence.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies because
the proposed rule contains information collection requirements. The
rule proposes to renumber FAR clause 52.223-6 to 52.226-XX and transfer
its information collection requirements from OMB Control Number 9000-
0107 to the new OMB Control Number 9000-0XXX for FAR part 26. The rule
also proposes to remove the information collection requirements
associated with coverage of EMS and facility compliance audits under
FAR clause 52.223-5, and the requirement for contractors to report
certain information related to hydrofluorocarbon content under FAR
clauses 52.223-11 and 52.223-12. Accordingly, the Regulatory
Secretariat Division has submitted to OMB a request for approval of a
revision to ``OMB Control Number 9000-0107, Federal Acquisition
Regulation Part 23 Requirements'' and approval of ``OMB Control Number
9000-0XXX, Federal Acquisition Regulation Part 26 Requirements.''
A. Public Reporting Burden
Public reporting burden for this collection of information includes
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
[[Page 51682]]
1. OMB Control Number 9000-0XXX, Federal Acquisition Regulation Part 26
Requirements
The annual reporting burden is estimated as follows:
Respondents: 228.
Total Annual Responses: 228.
Total Burden Hours: 114.
2. OMB Control Number 9000-0107, Federal Acquisition Regulation Part 23
Requirements
The annual reporting burden is estimated as follows:
Respondents: 34,527.
Total Annual Responses: 160,600.
Total Burden Hours: 706,089.
B. Request for Comments Regarding Paperwork Burden
Submit comments on these collections of information no later than
October 2, 2023 through https://www.regulations.gov and follow the
instructions on the site. All items submitted must cite ``OMB Control
Number 9000-0XXX, Federal Acquisition Regulation Part 26
Requirements,'' or ``OMB Control Number 9000-0107, Federal Acquisition
Regulation Part 23 Requirements,'' as applicable. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting. If there are difficulties submitting comments,
contact the GSA Regulatory Secretariat Division at 202-501-4755 or
[email protected]. For both sets of information collections, public
comments are particularly invited on:
The necessity of this collection of information for the
proper performance of the functions of Federal Government acquisitions,
including whether the information will have practical utility;
The accuracy of the estimate of the burden of this
collection of information;
Ways to enhance the quality, utility, and clarity of the
information to be collected; and
Ways to minimize the burden of the collection of
information on respondents, including the use of automated collection
techniques or other forms of information technology.
Requesters may obtain a copy of the supporting statement from the
General Services Administration, Regulatory Secretariat Division by
calling 202-501-4755 or emailing [email protected]. Please cite OMB
Control Number 9000-0107, Federal Acquisition Regulation Part 23
Requirements, or OMB Control Number 9000-0XXX, Federal Acquisition
Regulation Part 26 Requirements, in all correspondence.
List of Subjects in 48 CFR Parts 1, 2, 4, 5, 7, 9, 10, 11, 12, 13,
15, 18, 23, 26, 36, 37, 39, 42, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2,
4, 5, 7, 9, 10, 11, 12, 13, 15, 18, 23, 26, 36, 37, 39, 42, and 52 as
set forth below:
0
1. The authority citation for 48 CFR parts 1, 2, 4, 5, 7, 9, 10, 11,
12, 13, 15, 18, 23, 26, 36, 37, 39, 42, and 52 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
0
2. In section 1.106, amend the table by--
0
a. Removing the entry for ``23.602'';
0
b. Revising the entry for ``52.223-2'';
0
c. Removing the entry for ``52.223-4'';
0
d. Revising the entry for ``52.223-5'';
0
e. Removing the entry for ``52.223-6(b)(5)'';
0
f. Revising the entries for ``52.223-9'', ``52.223-11'', ``52.223-12'',
and ``52.223-22''; and
0
g. Adding in numerical order an entry for ``52.226-XX''.
The revisions and addition read as follows:
1.106 OMB approval under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
FAR segment No.
------------------------------------------------------------------------
* * * * *
52.223-2................................................ 9000-0107
52.223-5................................................ 9000-0107
* * * * *
52.223-9................................................ 9000-0107
52.223-11............................................... 9000-0107
52.223-12............................................... 9000-0107
52.223-22............................................... 9000-0107
* * * * *
52.226-XX............................................... 9000-XXXX
* * * * *
------------------------------------------------------------------------
PART 2--DEFINITIONS OF WORDS AND TERMS
0
3. Amend section 2.101, in paragraph (b)(2) by--
0
a. Revising the definition ``Biobased product'';
0
b. In the definition of ``Conviction'', removing ``23.5'' and
``23.503'' and adding ``26.5'' and ``26.503'' in their places,
respectively;
0
c. In the definition of ``Energy-savings performance contract'':
0
i. Removing ``Energy-savings performance contract'' and adding ``Energy
savings performance contract'' in its place; and
0
ii. Revising paragraph (3);
0
d. Revising the definition of ``Environmentally preferable'';
0
e. Removing the definitions of ``Global warming potential'' and ``High
global warming potential hydrofluorocarbons'';
0
f. Revising the definition of ``Recovered material'';
0
g. Removing the definitions of ``Renewable energy'' and ``Renewable
energy technology'';
0
h. In the definition of ``Sustainable acquisition'', removing from the
introductory text ``acquiring goods'' and adding ``acquiring products''
in its place;
0
i. Adding in alphabetical order the definition ``Sustainable products
and services'';
0
j. In the definition of ``United States'', revising paragraph (9); and
0
k. Removing the definition ``Water consumption intensity''.
The revisions and addition read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Biobased product means a product determined by the U.S. Department
of Agriculture to be a commercial product 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 (7
U.S.C. 8101) (7 CFR 3201.2).
* * * * *
Energy savings performance contract * * *
[[Page 51683]]
(3) Guarantee future energy and cost savings to the Government (42
U.S.C. 8287) (10 CFR 436.31).
Environmentally preferable means, in the case of a product or
service, having 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 of the product or service (section
314 of Pub. L. 107-314, 10 U.S.C. Chapter 223 Note).
* * * * *
Recovered material means waste materials and by-products recovered
or diverted from solid waste, but the term does not include those
materials and by-products generated from, and commonly reused within,
an original manufacturing process (42 U.S.C. 6903).
* * * * *
Sustainable products and services means products and services that
are subject to and meet the following applicable statutory mandates and
directives for purchasing:
(1) Statutory purchasing programs. (i) Products containing
recovered material designated by the U.S. Environmental Protection
Agency (EPA) under the Comprehensive Procurement Guidelines (42 U.S.C.
6962) (40 CFR part 247) (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
(ii) Energy- and water-efficient products that are ENERGY
STAR[supreg] certified or Federal Energy Management Program (FEMP)-
designated products (42 U.S.C. 8259b) (10 CFR part 436, subpart C)
(https://www.energy.gov/eere/femp/search-energy-efficient-products)
(https://www.energystar.gov/products?s=mega).
(iii) Biobased products meeting the content requirement of the U.S.
Department of Agriculture under the BioPreferred[supreg] program (7
U.S.C. 8102) (7 CFR part 3201) (https://www.biopreferred.gov).
(iv) Acceptable chemicals, products, and manufacturing processes
listed under EPA's Significant New Alternatives Policy (SNAP) program,
which ensures a safe and smooth transition away from substances that
contribute to the depletion of stratospheric ozone (42 U.S.C. 7671l)
(40 CFR part 82, subpart G) (https://www.epa.gov/snap).
(2) Required EPA purchasing programs. (i) WaterSense[supreg]
labeled (water efficient) products and services (https://www.epa.gov/watersense/watersense-products).
(ii) Safer Choice-certified products (products that contain safer
chemical ingredients) (https://www.epa.gov/saferchoice/products).
(iii) Products and services that meet EPA Recommendations of
Specifications, Standards, and Ecolabels (https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
* * * * *
United States * * *
(9) For use in subpart 23.1, see definition at 23.101.
* * * * *
PART4--ADMINISTRATIVE AND INFORMATION MATTERS
Subpart 4.3 [Removed and Reserved]
0
4. Remove and reserve subpart 4.3.
4.602 [Amended]
0
5. Amend section 4.602 by removing from paragraph (a)(3) ``products,
and high-performance'' and adding ``products, services, and high-
performance'' in its place.
4.1202 [Amended]
0
6. Amend section 4.1202 by removing paragraph (a)(25) and redesignating
paragraphs (a)(26) through (34) as paragraphs (a)(25) through (33).
PART 5--PUBLICIZING CONTRACT ACTIONS
0
7. Amend section 5.207 by revising paragraph (c)(11) to read as
follows:
5.207 Preparation and transmittal of synopses.
* * * * *
(c) * * *
(11) Sustainable acquisition requirements, such as a description of
high-performance sustainable building practices required, if for
design, construction, renovation, repair, or deconstruction (see part
23 and 36.104).
* * * * *
PART 7--ACQUISITION PLANNING
0
8. Amend section 7.103 by revising paragraph (p) to read as follows:
7.103 Agency-head responsibilities.
* * * * *
(p) Ensuring that agency planners--
(1) Comply with the policy in 11.002(d) regarding procurement of
sustainable products and services (as defined in 2.101) in accordance
with subpart 23.1;
(2) Comply with the Guiding Principles for Sustainable Federal
Buildings and Associated Instructions (Guiding Principles), for the
design, construction, renovation, repair, or deconstruction of Federal
buildings (see 36.104). The Guiding Principles can be accessed at
https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf; and
(3) Require contractor compliance with Federal environmental
requirements, when the contractor is operating Government-owned
facilities or vehicles, to the same extent as the agency would be
required to comply if the agency operated the facilities or vehicles.
* * * * *
0
9. 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) All 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 part 1502);
(iii) The proposed resolution of environmental issues; and
(iv) Any sustainable acquisition requirements to be included in the
solicitation and contract (see 11.002 and part 23).
* * * * *
PART 9--CONTRACTOR QUALIFICATIONS
9.405 [Amended]
0
10. Amend section 9.405 by removing from paragraph (a) ``23.506(e)''
and adding ``26.505(e)'' in its place.
9.406-1 [Amended]
0
11. Amend section 9.406-1 by removing from paragraph (c) ``23.506(e)''
and adding ``26.505(e)'' in its place.
9.406-2 [Amended]
0
12. Amend section 9.406-2 by--
0
a. Removing from paragraph (b)(1)(ii)(A) ``52.223-6'' and adding
``52.226-XX'' in its place; and
0
b. Removing from paragraph (b)(1)(ii)(B) ``23.504'' and adding
``26.504'' in its place.
9.406-4 [Amended]
0
13. Amend section 9.406-4 by removing from paragraph (a)(1)(i)
``23.506'' and adding ``26.505'' in its place.
[[Page 51684]]
9.407-1 [Amended]
0
14. Amend section 9.407-1 by removing from paragraph (d) ``23.506(e)''
and adding ``26.505(e)'' in its place.
9.407-2 [Amended]
0
15. Amend section 9.407-2 by--
0
a. Removing from paragraph (a)(4)(i) ``52.223-6'' and adding ``52.226-
XX'' in its place; and
0
b. Removing from paragraph (a)(4)(ii) ``23.504'' and adding ``26.504''
in its place.
PART 10--MARKET RESEARCH
0
16. Amend section 10.001 by revising paragraph (a)(3)(v) to read as
follows:
10.001 Policy.
(a) * * *
(3) * * *
(v) Ensure maximum practicable use of sustainable products and
services (as defined in 2.101) in accordance with subpart 23.1;
* * * * *
PART 11--DESCRIBING AGENCY NEEDS
0
17. Amend section 11.002 by revising paragraphs (d)(1) and (d)(2)
introductory text and adding paragraph (d)(3) to read as follows:
11.002 Policy.
* * * * *
(d)(1) Agencies shall procure sustainable products and services (as
defined in 2.101) in accordance with subpart 23.1.
(2) Unless it is not practicable (see 23.104(a)) or an exception or
exemption applies (see 23.105 and 23.106, respectively), agencies shall
incorporate the use of sustainable products and services when--
* * * * *
(3) The Green Procurement Compilation (GPC) available at https://sftool.gov/greenprocurement provides a comprehensive list of
sustainable products and services and other related sustainable
acquisition guidance. Agencies should--
(i) Consult the GPC when determining which purchasing programs
apply to a specific product or service; and
(ii) Incorporate into agency requirements any required standards,
specifications, or ecolabels identified in the GPC for a specific
product or service.
* * * * *
11.301 [Removed]
0
18. Remove section 11.301.
11.302 [Redesignated as 11.301]
0
19. Redesignate section 11.302 as section 11.301.
11.303 [Removed]
0
20. Remove section 11.303.
11.304 [Redesignated as 11.302]
0
21. Redesignate section 11.304 as section 11.302.
PART 12--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
12.503 [Amended]
0
22. Amend section 12.503 by removing from paragraph (a)(8) ``23.501''
and adding ``26.501'' in its place.
12.504 [Amended]
0
23. Amend section 12.504 by removing from paragraph (a)(10) ``23.5''
and adding ``26.5'' in its place.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
13.006 [Amended]
0
24. Amend section 13.006 by removing from paragraph (f) ``52.223-6''
and adding ``52.226-XX'' in its place.
13.201 [Amended]
0
25. Amend section 13.201 by removing from paragraph (f) ``subparts
23.1, 23.2, 23.4, and 23.7'' and adding ``subpart 23.1'' in its place.
0
26. Amend section 13.302-5 by adding paragraph (d)(5) to read as
follows:
13.302-5 Clauses.
* * * * *
(d) * * *
(5) The contracting officer shall delete 52.223-XX, Sustainable
Products and Services, from the clause at 52.213-4 and mark the
paragraph as reserved when--
(i)(A) There is a written justification in accordance with
23.104(a) that it is not practicable to procure sustainable products
and services;
(B) An exception under 23.105 applies; or
(C) An exemption under 23.106 applies; and
(ii) The scope of the written justification, exception, or
exemption covers the entirety of the contract action requirements.
PART 15--CONTRACTING BY NEGOTIATION
15.603 [Amended]
0
27. Amend section 15.603 by removing from paragraph (e) ``energy-
savings'' and adding ``energy savings'' in its place.
PART 18--EMERGENCY ACQUISITIONS
0
28. Amend section 18.202 by adding paragraph (e) to read as follows:
18.202 Defense or recovery from certain events.
* * * * *
(e) Sustainable products and services. Contracting officers are
encouraged, but not required, to procure sustainable products and
services if the head of the agency determines the supplies or services
are to be used to facilitate defense against or recovery from cyber,
nuclear, biological, chemical, or radiological attack; to facilitate
provision of international disaster assistance; or to support response
to an emergency or major disaster (see 23.106(c)).
PART 23--ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY
0
29. Revise the heading for part 23 to read as set forth above.
0
30. Revise section 23.000 to read as follows:
23.000 Scope of part.
This part prescribes acquisition policies and procedures supporting
the Government's program to protect and improve the quality of the
environment, to foster markets for sustainable products and services,
and to ensure proper handling and notification of hazardous materials.
0
31. Amend section 23.001 by--
0
a. Removing the definition of ``Greenhouse gases'' and adding the
definition of ``Greenhouse gas'' in its place; and
0
b. Removing the definition ``United States''.
The addition reads as follows:
23.001 Definitions.
* * * * *
Greenhouse gas means carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons, nitrogen trifluoride, or sulfur
hexafluoride.
* * * * *
0
32. Revise section 23.002 to read as follows:
23.002 Policy.
In accordance with section 208(a) of Executive Order 14057,
Catalyzing Clean Energy Industries and Jobs Through Federal
Sustainability, agencies shall reduce emissions, including greenhouse
gas emissions; promote environmental stewardship; support resilient
supply chains; drive
[[Page 51685]]
innovation; and incentivize markets for sustainable products and
services.
0
33. Revise subpart 23.1 to read as follows:
Subpart 23.1--Sustainable Products and Services
Sec.
23.100 Scope of subpart.
23.101 Definitions.
23.102 Authorities.
23.103 Policy.
23.104 General procedures.
23.105 Exceptions.
23.106 Exemptions.
23.107 Statutory purchasing programs.
23.107-1 Products containing recovered materials.
23.107-2 Biobased products.
23.107-3 Energy-consuming products and water-consuming products.
23.107-4 Products that contain, use, or are manufactured with ozone-
depleting substances or products that contain or use high global
warming potential hydrofluorocarbons.
23.108 Required Environmental Protection Agency purchasing programs.
23.108-1 Water-efficient products.
23.108-2 Chemically-intensive products.
23.108-3 Products and services that are subject to EPA
Recommendations of Specifications, Standards, and Ecolabels.
23.109 Solicitation provisions and contract clauses.
Subpart 23.1--Sustainable Products and Services
23.100 Scope of subpart.
This subpart provides policies and procedures for procuring
sustainable products and services. This subpart applies to all contract
actions, including those using part 12 procedures for the acquisition
of commercial products, including commercially available off-the-shelf
(COTS) items, and commercial services and acquisitions valued at or
below the micro-purchase threshold.
23.101 Definitions.
As used in this subpart--
Contract action means any oral or written action that results in
the purchase, rent, or lease of supplies or equipment, services, or
construction.
Environmental Protection Agency (EPA)-designated item means a
product that is or can be made with recovered material--
(1) That is listed by EPA in a procurement guideline (40 CFR part
247); and
(2) For which EPA has provided recommended recovered material
content levels and other purchasing recommendations in a related
Recovered Materials Advisory Notice (RMAN) (available at https://www.epa.gov/smm/regulatory-background-comprehensive-procurement-guideline-program-cpg#rman).
Global warming potential means how much a given mass of a chemical
contributes to global warming over a given time period compared to the
same mass of carbon dioxide. Carbon dioxide's global warming potential
is defined as 1.0.
High global warming potential hydrofluorocarbons means any
hydrofluorocarbons in a particular end use for which EPA's Significant
New Alternatives Policy (SNAP) program has identified other acceptable
alternatives that have lower global warming potential. The SNAP list of
alternatives is found at 40 CFR part 82, subpart G, with supplemental
tables of alternatives available at https://www.epa.gov/snap/.
Hydrofluorocarbons means compounds that only contain hydrogen,
fluorine, and carbon.
Ozone-depleting substance means any substance the EPA designates in
40 CFR part 82 as--
(1) Class I, including, but not limited to, chlorofluorocarbons,
halons, carbon tetrachloride, and methyl chloroform; or
(2) Class II, including, but not limited to,
hydrochlorofluorocarbons.
United States, as defined in the Executive Office of the
President's Office of Management and Budget, Council on Environmental
Quality, and Climate Policy Office Memorandum M-22-06, when used in a
geographical sense means--
(1) The fifty States;
(2) The District of Columbia;
(3) The commonwealths of Puerto Rico and the Northern Mariana
Islands;
(4) The territories of Guam, American Samoa, and the United States
Virgin Islands; and
(5) Associated territorial waters and airspace.
U.S. Department of Agriculture (USDA)-designated product category
means a generic grouping of products that are or can be made with
biobased materials--
(1) That are listed by USDA in a procurement guideline (7 CFR part
3201, subpart B); and
(2) For which USDA has provided purchasing recommendations
(available at https://www.biopreferred.gov).
23.102 Authorities.
(a) Section 208 of Executive Order 14057, Catalyzing Clean Energy
Industries and Jobs Through Federal Sustainability, dated December 8,
2021.
(b) Paragraph G of section I of the Executive Office of the
President's Office of Management and Budget, Council on Environmental
Quality, and Climate Policy Office Memorandum M-22-06, Catalyzing Clean
Energy Industries and Jobs Through Federal Sustainability, dated
December 8, 2021.
(c) Implementing instructions for Executive Order 14057, Catalyzing
Clean Energy Industries and Jobs Through Federal Sustainability, dated
August 2022.
(d) The authorities referenced in 23.107 for statutory purchasing
programs.
23.103 Policy.
(a) Agencies shall procure sustainable products and services (as
defined in 2.101) to the maximum extent practicable.
(1) Procuring sustainable products and services is considered
practicable, unless the agency cannot acquire products or services--
(i) Competitively within a reasonable performance schedule;
(ii) That meet reasonable performance requirements; or
(iii) At a reasonable price.
(2) For ENERGY STAR[supreg] or Federal Energy Management Program
(FEMP)-designated products, a price is reasonable if it is cost-
effective over the life of the product taking energy cost savings into
account (42 U.S.C. 8259b(b)(2)). Life-cycle cost savings tools are
available at https://www.energystar.gov/buildings/save_energy_commercial_buildings/ways_save/energy_efficient_products
and https://www.nrel.gov/analysis/tech-lcoe.html.
(b) When procuring sustainable products and services, agencies
shall--
(1) Ensure compliance with all applicable statutory purchasing
program requirements (see 23.107); and
(2) Prioritize multi-attribute sustainable products and services
(see 23.104(c)(2)).
(c) Regarding products under contract actions for services, the
contractor is required to provide products that meet the definition of
sustainable products and services at 2.101, if the products are--
(1) Delivered to the Government during performance;
(2) Acquired by the contractor for use in performing services under
a Government contract where the cost of the products is a direct cost
to a Government contract (versus costs which are normally applied to a
contractor's general and administrative expenses or indirect costs); or
(3) Furnished by the contractor for use by the Government,
including use at Government-owned contractor-operated facilities.
[[Page 51686]]
23.104 General procedures.
(a) Maximum extent practicable. If the requiring activity submits a
written justification addressing the reasons described in 23.103(a),
the contracting officer may consider it not practicable to procure
sustainable products or services. A written justification may be for a
specific product or service or at the line item or contract level. The
contracting officer shall maintain the written justification in the
contract file.
(b) Identification. The contracting officer shall ensure the
solicitation and contract identify any products and services that are
not subject to the requirements of this subpart and the clause at
52.223-XX, Sustainable Products and Services, based on the written
justification under paragraph (a) of this section, an exception at
23.105, or an exemption at 23.106, unless the justification, exception,
or exemption covers the entirety of the contract action requirements.
(c) Prioritization. Agencies shall prioritize sustainable products
and services as follows:
(1) Procure products and services that meet all applicable
statutory purchasing program requirements (see 23.107). When both an
EPA-designated item (see 23.107-1) and a biobased product in a USDA-
designated product category (see 23.107-2) could be used for the same
purposes, and both meet the agency's needs, procure the EPA-designated
item.
(2) Consistent with other statutory procurement requirements,
prioritize multi-attribute sustainable products and services, which are
those that meet all applicable statutory purchasing program
requirements (see 23.107) and one or more required EPA purchasing
programs (see 23.108).
(3) If no statutory purchasing program requirements apply, procure
sustainable products and services that meet required EPA purchasing
program requirements (see 23.108).
(4) Procure products and services that meet required EPA purchasing
programs (see paragraph (2) of the definition of ``sustainable products
and services'' in 2.101) unless doing so would conflict with statute,
Executive order, or regulation that impose domestic manufacturing and
content requirements, such as the Buy American statute (41 U.S.C.
chapter 83; see part 25) and the Berry Amendment (10 U.S.C. 4862).
(d) Resource. The Green Procurement Compilation (GPC) available at
https://sftool.gov/greenprocurement provides a comprehensive list of
sustainable products and services and other related sustainable
acquisition guidance. In addition to the resources identified for each
purchasing program listed in 23.107 and 23.108, agencies should consult
the GPC when determining which purchasing programs apply to a specific
product or service.
23.105 Exceptions.
The following are excepted from the requirement to procure
sustainable products and services:
(a) Contracts performed outside of the United States, unless the
agency head determines that such application is in the interest of the
United States.
(b) Weapon systems; however, compliance with applicable agency
affirmative procurement programs is required for recovered materials
per 23.107-1 (see 23.109(b)) (42 U.S.C. 6962) and for alternatives for
ozone depleting substances per 23.107-4 (see 23.109(d)) (42 U.S.C.
7671l), unless a written justification exists as described at 23.104(a)
(42 U.S.C. 6962(c)(1) and 7 U.S.C. 8102(a)(1)(B)).
(c) Energy-consuming products or systems designed or procured for
combat or combat-related missions are not subject to the requirements
in 23.107-3 (42 U.S.C. 8259b(a)(5)).
(d) Biobased products to be used in military equipment (products or
systems designed or procured for combat or combat-related missions),
spacecraft systems, or launch support equipment are not subject to the
requirements in 23.107-2 (7 CFR 3201.3(e)).
23.106 Exemptions.
(a) The Director of National Intelligence may exempt an
intelligence activity of the United States and related personnel,
resources, and facilities to the extent the Director determines
necessary to protect intelligence sources and methods from unauthorized
disclosure.
(b) The head of an agency may exempt the following:
(1) Particular agency activities and related personnel, resources,
and facilities when it is in the interest of national security, to
protect intelligence sources and methods from unauthorized disclosure,
or where necessary to protect undercover law enforcement operations
from unauthorized disclosure. The agency shall notify the Chair of the
Council on Environmental Quality (CEQ) in writing within 30 days of
issuance of the exemption under this paragraph (b)(1).
(2) On an individual or class basis, any manned and unmanned
vehicle, vessel, aircraft, or non-road equipment that is used in combat
support, combat service support, military tactical or relief
operations, or training for such operations or spaceflight vehicles,
including associated ground-support equipment.
(c) Contracting officers are encouraged, but not required, to
procure sustainable products and services if the head of the agency
determines the supplies or services are to be used to facilitate
defense against or recovery from cyber, nuclear, biological, chemical,
or radiological attack; to facilitate provision of international
disaster assistance; or to support response to an emergency or major
disaster.
(d) The head of the agency may submit to the President, through the
Chair of CEQ, a request for an exemption of an agency activity, and
related personnel, resources, and facilities from this subpart for any
reason not otherwise addressed in this section.
23.107 Statutory purchasing programs.
Agencies shall ensure compliance with statutory purchasing program
requirements described in 23.107-1 through 23.107-4.
23.107-1 Products containing recovered materials.
(a) Authorities. The Resource Conservation and Recovery Act of 1976
(RCRA), 42 U.S.C. 6962, as implemented at 40 CFR part 247.
(b) EPA Comprehensive Procurement Guidelines (CPG) Program. Under
RCRA, EPA must designate items that are or can be made with recovered
materials and must also recommend practices to assist procuring
agencies in meeting their obligations.
(c) Applicability. (1) This section applies to contract actions
involving an EPA-designated item, if--
(i) The price of the EPA-designated item exceeds $10,000; or
(ii) The aggregate amount paid for multiple purchases of the EPA-
designated item, or a functionally equivalent item, in the preceding
fiscal year was $10,000 or more.
(2) While micro-purchases are included in determining the aggregate
amount paid under paragraph (c)(1) of this section, it is not necessary
for an agency to track micro-purchases when--
(i) The agency anticipates the aggregate amount paid will exceed
$10,000; or
(ii) The agency intends to establish or continue an affirmative
procurement program as described in paragraph (d) of this section in
the following fiscal year.
(d) Agency affirmative procurement program. An agency shall
establish an affirmative procurement program for EPA-designated items
if the agency's purchases of EPA-designated items
[[Page 51687]]
exceed the threshold set forth in paragraph (c)(1) of this section.
(1) Agency affirmative procurement programs must include--
(i) A recovered materials preference program;
(ii) A program to promote the recovered materials preference
program;
(iii) A program for requiring reasonable estimates and
certification of recovered material used in the performance of
contracts, including a preaward certification that products will meet
EPA recommendations (see 52.223-4, Recovered Material Certification),
and either an estimate or a certification at contract completion (see
52.223-9, Estimate of Percentage of Recovered Material Content for EPA-
Designated Items, and its Alternate), as well as agency procedures for
verification of estimates and certifications;
(iv) Annual review and monitoring of the effectiveness of the
affirmative procurement program; and
(v) Guidance for purchases of EPA-designated items at or below the
micro-purchase threshold.
(2) Technical or requirements personnel and procurement personnel
are responsible for the preparation, implementation, and monitoring of
affirmative procurement programs.
(3) Agencies have a period of 1 year to revise their affirmative
procurement program(s) after the designation of any new item by EPA.
(e) Procedures. The following procedures apply when the thresholds
set forth in paragraph (c)(1) of this section are exceeded.
(1) Once an item has been designated by EPA, agencies shall
purchase conforming products to the maximum extent practicable in
accordance with 23.104(a), unless a justification, exception, or
exemption applies (see 23.104(a), 23.105, and 23.106, respectively).
(2) Agencies may use their own specifications or commercial product
descriptions when procuring products containing recovered materials;
however, the contract should specify that the product is composed of
the--
(i) Highest percentage of recovered materials practicable; or
(ii) Minimum content standards in accordance with EPA's RMANs.
(3) When acquiring products with recovered material, the
contracting officer may request information or data on such products,
including recycled content or related product standards (see
11.301(c)).
(f) Resources. (1) For information on EPA-designated items and
associated minimum content standards, see https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products.
(2) Contracting officers should also consult their agency's
affirmative procurement program for agency-specific guidance.
23.107-2 Biobased products.
(a) Authorities. (1) The Farm Security and Rural Investment Act of
2002 (FSRIA), 7 U.S.C. 8102, as implemented at 7 CFR part 3201.
(2) The Energy Policy Act of 2005, Public Law 109-58.
(b) USDA BioPreferred[supreg] Program. The BioPreferred Program was
created in the 2002 Farm Bill and is managed by the USDA. The goal of
the BioPreferred Program is to increase the purchase and use of
biobased products (as defined in 2.101) by agencies.
(c) Applicability. (1) This section applies to contract actions
involving a biobased product in a USDA-designated product category if--
(i) The price of the biobased product exceeds $10,000; or
(ii) The aggregate amount paid for multiple purchases of the
biobased product, or for a functionally equivalent product, in the
preceding fiscal year was $10,000 or more.
(2) While micro-purchases are included in determining the aggregate
amount paid under paragraph (c)(1) of this section, it is not necessary
for an agency to track micro-purchases when--
(i) The agency anticipates the aggregate amount paid will exceed
$10,000; or
(ii) The agency intends to establish or continue an affirmative
procurement program in the following fiscal year.
(d) Agency affirmative procurement program. An agency shall
establish an affirmative procurement program for biobased products in
USDA-designated product categories if the agency's purchases of such
products exceed the threshold set forth in paragraph (c)(1) of this
section.
(1) Agency affirmative procurement programs must include--
(i) A biobased products preference program;
(ii) A program to promote the biobased products preference program;
(iii) A program for requiring preaward certification that products
meet USDA recommendations (see 52.223-1, Biobased Product
Certification) and reporting on biobased products used in performance
of contracts (see 52.223-2, Reporting of Biobased Products Under
Service and Construction Contracts); and
(iv) Annual review and monitoring of the effectiveness of the
program.
(2) Technical or requirements personnel and procurement personnel
are responsible for the preparation, implementation, and monitoring of
affirmative procurement programs.
(3) Agencies have a period of 1 year to revise their procurement
program(s) after USDA updates any USDA-designated product categories.
(e) Procedures. The following procedures apply when the thresholds
set forth in paragraph (c)(1) of this section are exceeded.
(1) Once a biobased product is included in a USDA-designated
product category, agencies shall purchase conforming products to the
maximum extent practicable in accordance with 23.104(a), unless a
justification, exception, or exemption applies (see 23.104(a), 23.105,
and 23.106, respectively).
(2) Agencies may use their own specifications or commercial product
descriptions when procuring biobased products; however, the contract
should specify that the biobased product is composed of the--
(i) Highest percentage of biobased material practicable; or
(ii) USDA's recommended minimum contents standards.
(3) When acquiring biobased products, the contracting officer may
request information or data on such products, including biobased
content or related standards of the products (see 11.301(c)).
(4) Agencies shall treat as eligible for the preference for
biobased products, products from designated countries, as defined in
25.003, provided that those products--
(i) Meet the criteria for the definition of biobased product,
except that the products need not meet the requirement that renewable
agricultural materials or forestry materials in such product must be
domestic; and
(ii) Otherwise meet all requirements for participation in the
preference program.
(f) Resources. (1) For information on USDA-designated product
categories and minimum content standards for biobased products, see
https://www.biopreferred.gov.
(2) Contracting officers should also consult their agency's
affirmative procurement program for agency-specific guidance.
23.107-3 Energy-consuming products and water-consuming products.
(a) Authorities. (1) Energy Policy and Conservation Act (42 U.S.C.
6361(a)(1)).
(2) National Energy Conservation Policy Act (42 U.S.C. 8253, 8259b,
and 8262g).
[[Page 51688]]
(3) Executive Order 11912 of April 13, 1976, Delegations of
Authority under the Energy Policy and Conservation Act.
(4) Executive Order 13221 of July 31, 2001, Energy-Efficient
Standby Power Devices.
(b) Programs--(1) ENERGY STAR[supreg] Program. The ENERGY
STAR[supreg] program is a voluntary product-labeling initiative that
identifies and promotes energy and water efficiency and the reduction
of greenhouse gas emissions. This joint U.S. EPA and Department of
Energy program helps buyers save money and protect the environment
through energy- and water-efficient products and practices.
(2) Federal Energy Management Program (FEMP). FEMP publishes
acquisition guidance to help Federal buyers meet requirements for
purchasing energy-efficient and water-efficient products. In addition,
in product categories not covered by the ENERGY STAR[supreg] program,
FEMP sets efficiency requirements for product categories that have the
potential to generate significant Federal energy savings.
(c) Procedures. To the maximum extent practicable in accordance
with 23.104(a), unless a justification, exception, or exemption applies
(see 23.104(a), 23.105, and 23.106, respectively)--
(1) When acquiring energy- and water-consuming products listed in
the ENERGY STAR[supreg] Program or FEMP--
(i) Agencies shall purchase ENERGY STAR[supreg] certified or FEMP-
designated products; and
(ii) For products that consume power in a standby mode and are
listed on FEMP's Low Standby Power Devices product listing at https://www.energy.gov/eere/femp/low-standby-power-product-list, agencies
shall--
(A) Purchase items that meet FEMP's standby power wattage
recommendation or document the reason for not purchasing such items; or
(B) If FEMP has listed a product without a corresponding wattage
recommendation, purchase items that use no more than one watt in their
standby power consuming mode. When it is impracticable to meet the one-
watt requirement, agencies shall purchase items with the lowest standby
wattage practicable; and
(2) When contracting for services or construction that will include
the provision of energy- and water-consuming products, agencies shall
specify products that comply with the applicable requirements in
paragraph (c)(1) of this section.
(d) Resources. (1) For information on products under the ENERGY
STAR[supreg] Program, go to https://www.energystar.gov/products.
(2) For information on energy-efficient products, go to https://www.energy.gov/eere/femp/search-energy-efficient-products.
(3) For information on low standby power products at https://www.energy.gov/eere/femp/low-standby-power-product-purchasing-requirements-and-compliance-resources.
23.107-4 Products that contain, use, or are manufactured with ozone-
depleting substances or products that contain or use high global
warming potential hydrofluorocarbons.
(a) Authorities. (1) Title VI of the Clean Air Act (42 U.S.C. 7671,
et seq.).
(2) Section 706 of Division D, title VII of the Omnibus
Appropriations Act, 2009 (Pub. L. 111-8).
(3) EPA regulations, Protection of Stratospheric Ozone (40 CFR part
82).
(b) Program. The EPA SNAP Program.
(c) Agency programs. Agencies shall implement cost-effective
programs to minimize the procurement of materials and substances that
contribute to the depletion of stratospheric ozone and/or result in the
use, release, or emission of high global warming potential
hydrofluorocarbons.
(d) Procedures. Agencies shall--
(1) Give preference to the procurement of acceptable alternative
chemicals, products, and manufacturing processes that reduce overall
risks to human health and the environment by minimizing--
(i) The depletion of ozone in the upper atmosphere; and
(ii) The potential use, release, or emission of high global warming
potential hydrofluorocarbons;
(2) In preparing specifications and purchase descriptions and in
the acquisition of products and services--
(i) Comply with the requirements of title VI of the Clean Air Act;
section 706 of division D, title VII of Public Law 111-8; and 40 CFR
82.84(a)(2) through (5);
(ii) Substitute acceptable alternatives to ozone-depleting
substances, as identified under 42 U.S.C. 7671k, to the maximum extent
practicable, as provided in 40 CFR 82.84(a)(1), except in the case of
Class I substances being used for specified essential uses, as
identified under 40 CFR 82.4(n); and
(iii) Unless a particular contract requires otherwise, specify
that, when feasible, contractors shall use another acceptable
alternative in lieu of a high global warming potential
hydrofluorocarbon in products and services in a particular end use for
which EPA's SNAP program has identified other acceptable alternatives
that have lower global warming potential.
(e) Resource. Refer to EPA's SNAP program website at https://www.epa.gov/snap for the list of alternatives found at 40 CFR part 82,
subpart G, as well as supplemental tables of alternatives.
23.108 Required Environmental Protection Agency purchasing programs.
In accordance with 23.104(c), contracting officers shall, after
meeting statutory purchasing program requirements in 23.107, purchase
to the maximum extent practicable products and services that meet EPA
purchasing program requirements described in 23.108-1 through 23.108-3.
23.108-1 Water-efficient products.
(a) Program. EPA's WaterSense[supreg] Program makes it easy to find
and select water-efficient products that can save water, energy, and
money. WaterSense[supreg]-labeled products are backed by independent,
third-party certification and meet EPA's specifications for water
efficiency and performance.
(b) Resource. For additional information on WaterSense[supreg]
products, see https://www.epa.gov/watersense/watersense-products.
23.108-2 Chemically-intensive products.
(a) Program. Safer Choice is EPA's label for products that contain
safer chemicals. Every chemical, regardless of percentage, in a Safer
Choice-certified product is evaluated through EPA's rigorous scientific
process and only the safest ingredients are allowed.
(b) Resource. For information on Safer Choice-certified products,
see https://www.epa.gov/saferchoice.
23.108-3 Products and services that are subject to EPA Recommendations
of Specifications, Standards, and Ecolabels.
(a) Program. The EPA Environmentally Preferable Purchasing (EPP)
Program helps Federal agencies identify and procure environmentally
preferable products and services to meet zero emissions and other
sustainable procurement goals by providing Recommendations of
Specifications, Standards, and Ecolabels. The EPP recommendations give
preference to multi-attribute or life-cycle based standards and
ecolabels that address key environmental and human health impact areas
and where product conformance is determined by a
[[Page 51689]]
competent third-party certification body.
(b) Resource. For additional information on EPA Recommendations of
Specifications, Standards, and Ecolabels, see https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing.
23.109 Solicitation provisions and contract clauses.
(a) General. Insert the clause at 52.223-XX, Sustainable Products
and Services, in solicitations and contracts--
(1) Unless--
(i) The requiring activity has provided a written justification
that it is not practicable to procure sustainable products and services
(see 23.104(a));
(ii) An exception under 23.105 applies; or
(iii) An exemption under 23.106 applies; and
(2) The scope of the written justification, exception, or exemption
covers the entirety of the contract action requirements.
(b) EPA-designated items. Except for the acquisition of COTS
items--
(1) Insert the provision at 52.223-4, Recovered Material
Certification, in solicitations that require the delivery or specify
the use of EPA-designated items; and
(2) Insert the clause at 52.223-9, Estimate of Percentage of
Recovered Material Content for EPA-designated Items, in solicitations
and contracts exceeding $150,000 that are for, or specify the use of,
EPA-designated items containing recovered materials. If technical
personnel advise that estimates can be verified, use the clause with
its Alternate I.
(c) Biobased products in USDA-designated product categories. (1)
Insert the provision at 52.223-1, Biobased Product Certification, in
solicitations, other than for acquisitions described at 23.105(d),
that--
(i) Require the delivery or specify the use of biobased products in
USDA-designated product categories; or
(ii) Include the clause at 52.223-2.
(2) Insert the clause at 52.223-2, Reporting of Biobased Products
Under Service and Construction Contracts, in service and construction
solicitations and contracts, unless the contract will not involve the
use of biobased products in USDA-designated product categories at
https://www.biopreferred.gov or 7 CFR part 3201.
(d) Products containing ozone-depleting substances and
hydrofluorocarbons. Except for contracts for supplies that will be
delivered outside the United States and its outlying areas, or
contracts for services that will be performed outside the United States
and its outlying areas, insert the following clauses:
(1) 52.223-11, Ozone-Depleting Substances and High Global Warming
Potential Hydrofluorocarbons, in solicitations and contracts for--
(i) Refrigeration equipment (in product or service code (PSC)
4110);
(ii) Air conditioning equipment (PSC 4120);
(iii) Clean agent fire suppression systems/equipment (e.g.,
installed room flooding systems, portable fire extinguishers, aircraft/
tactical vehicle fire/explosion suppression systems) (in PSC 4210);
(iv) Bulk refrigerants and fire suppressants (in PSC 6830);
(v) Solvents, dusters, freezing compounds, mold release agents, and
any other miscellaneous chemical specialty that may contain ozone-
depleting substances or high global warming potential
hydrofluorocarbons (in PSC 6850);
(vi) Corrosion prevention compounds, foam sealants, aerosol mold
release agents, and any other preservative or sealing compound that may
contain ozone-depleting substances or high global warming potential
hydrofluorocarbons (in PSC 8030);
(vii) Fluorocarbon lubricants (primarily aerosols) (in PSC 9150);
and
(viii) Any other manufactured end products that may contain or be
manufactured with ozone-depleting substances.
(2) 52.223-12, Maintenance, Service, Repair, or Disposal of
Refrigeration Equipment and Air Conditioners, in solicitations and
contracts that include the maintenance, service, repair, or disposal
of--
(i) Refrigeration equipment, such as refrigerators, chillers, or
freezers; or
(ii) Air conditioners, including air conditioning systems in motor
vehicles.
(3) 52.223-20, Aerosols, in solicitations and contracts--
(i) For products that may contain high global warming potential
hydrofluorocarbons as a propellant, or as a solvent; or
(ii) That involve maintenance or repair of electronic or mechanical
devices.
(4) 52.223-21, Foams, in solicitations and contracts for--
(i) Products that may contain high global warming potential
hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons
as a foam blowing agent, such as building foam insulation or appliance
foam insulation; or
(ii) Construction of buildings or facilities.
0
34. Revise subpart 23.2 to read as follows:
Subpart 23.2--Energy Savings Performance Contracts
Sec.
23.200 Scope.
23.201 Authorities.
23.202 Policy.
Subpart 23.2--Energy Savings Performance Contracts
23.200 Scope.
(a) This subpart prescribes policies and procedures for using an
energy savings performance contract to obtain energy-efficient
technologies at Government facilities without Government capital
expense.
(b) This subpart applies to acquisitions in the United States and
its outlying areas. Agencies conducting acquisitions outside of these
areas must use their best efforts to comply with this subpart.
23.201 Authorities.
This subpart implements the National Energy Conservation Policy Act
(42 U.S.C. 8287).
23.202 Policy.
(a) Agencies should make maximum use of the authority provided in
the National Energy Conservation Policy Act (42 U.S.C. 8287) to use an
energy savings performance contract (ESPC), when life-cycle cost-
effective to reduce energy use and cost in the agency's facilities and
operations.
(b)(1) Under an ESPC, an agency can contract with an energy service
company for a period not to exceed 25 years to improve energy
efficiency in one or more agency facilities at no direct capital cost
to the United States Treasury. The energy service company finances the
capital costs of implementing energy conservation measures and
receives, in return, a contractually determined share of the cost
savings that result.
(2) Except as provided in 10 CFR 436.34, ESPC's are subject to
subpart 17.1.
(c) To solicit and award an ESPC, the contracting officer--
(1) Must use the procedures, selection method, and terms and
conditions provided in 10 CFR part 436, subpart B; and
(2) May use the ``Qualified List'' of energy service companies
established by the Department of Energy and other agencies.
(d) For procedures related to unsolicited proposals for energy
savings performance contracts, see 15.603(e).
[[Page 51690]]
(e) For more information see https://energy.gov/eere/femp/energy-savings-performance-contracts-federal-agencies.
0
35. Revise the heading for subpart 23.3 to read as follows:
Subpart 23.3--Hazardous Material Identification, Material Safety
Data, and Notice of Radioactive Materials
0
36. Revise section 23.300 to read as follows:
23.300 Scope of subpart.
This subpart prescribes policies and procedures for the following:
(a) Acquiring deliverable items, other than ammunition and
explosives, that require the furnishing of data involving hazardous
materials. Agencies may prescribe special procedures for ammunition and
explosives.
(b) Providing notification of radioactive materials prior to
delivery.
0
37. Revise the heading of section 23.302 to read as follows:
23.302 Hazardous material identification and notice of material safety
data.
* * * * *
23.303 [Redesignated as 23.304]
0
38. Redesignate section 23.303 as section 23.304.
0
39. Add a new section 23.303 to read as follows:
23.303 Notice of radioactive materials.
(a) The clause at 52.223-7, Notice of Radioactive Materials,
requires the contractor to notify the contracting officer prior to
delivery of radioactive material.
(b) Upon receipt of the notice, the contracting officer shall
notify receiving activities so that appropriate safeguards can be
taken.
(c) The clause permits the contracting officer to waive the
notification if the contractor states that the notification on prior
deliveries is still current. The contracting officer may waive the
notice only after consultation with cognizant technical
representatives.
(d) The contracting officer is required to specify in the clause at
52.223-7, the number of days in advance of delivery that the contractor
will provide notification. The determination of the number of days
should be done in coordination with the installation/facility radiation
protection officer (RPO). The RPO is responsible for ensuring the
proper license, authorization, or permit is obtained prior to receipt
of the radioactive material.
0
40. Revise newly redesignated section 23.304 to read as follows:
23.304 Contract clauses.
(a)(1) The contracting officer shall insert the clause at 52.223-3,
Hazardous Material Identification and Material Safety Data, in
solicitations and contracts if the contract will require the delivery
of hazardous materials as defined in 23.301.
(2) If the contract is awarded by an agency other than the
Department of Defense, the contracting officer shall use the clause at
52.223-3 with its Alternate I.
(b) The contracting officer shall insert the clause at 52.223-7,
Notice of Radioactive Materials, in solicitations and contracts for
supplies that are or that contain--
(1) Radioactive material requiring specific licensing under
regulations issued pursuant to the Atomic Energy Act of 1954; or
(2) Radioactive material not requiring specific licensing in which
the specific activity is greater than 0.002 microcuries per gram or the
activity per item equals or exceeds 0.01 microcuries. Such supplies
include, but are not limited to, aircraft, ammunition, missiles,
vehicles, electronic tubes, instrument panel gauges, compasses, and
identification markers.
0
41. Revise subpart 23.4 to read as follows:
Subpart 23.4--Pollution Prevention, Environmental Management Systems,
and Waste Reduction
Sec.
23.400 Scope of subpart.
23.401 Definitions.
23.402 Authorities.
23.403 Emergency planning and toxic release reporting.
23.404 Environmental management systems.
23.405 Waste reduction program.
23.406 Contract clauses.
Subpart 23.4--Pollution Prevention, Environmental Management
Systems, and Waste Reduction
23.400 Scope of subpart.
This subpart prescribes policies and procedures for--
(a) Obtaining information needed for Government compliance with
right-to-know laws and pollution prevention requirements;
(b) Contractor compliance with environmental management systems;
and
(c) Ensuring waste reduction at Federal facilities.
23.401 Definitions.
As used in this subpart--
Federal agency means an executive agency (see 2.101).
Federal facility means a facility owned or operated by a Federal
agency in the customs territory of the United States.
23.402 Authorities.
(a) Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. 11001-11050 (EPCRA).
(b) Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109 (PPA).
(c) Executive Order 14057, Catalyzing Clean Energy Industries and
Jobs Through Federal Sustainability, dated December 8, 2021.
23.403 Emergency planning and toxic release reporting.
(a) Federal facilities are required to comply with the emergency
planning and toxic release reporting requirements in EPCRA and PPA.
(b) Pursuant to EPCRA, PPA, and any agency implementing procedures,
every contract that provides for performance on a Federal facility
shall require the contractor to provide information necessary for the
Federal agency to comply with paragraph (a) of this section.
23.404 Environmental management systems.
Agencies may implement an environmental management system (EMS)
when it aligns with and supports its agency's mission needs and
facilitates implementation and progress toward E.O. 14057 goals. If an
agency uses an EMS for contractor operation of Government-owned or -
leased facilities or vehicles, and contractor activities affect the
agency's environmental management aspects--
(a) EMS requirements shall be included in contracts to ensure
proper implementation and execution of EMS roles and responsibilities;
and
(b) The contracting officer shall--
(1) Specify the EMS directives with which the contractor must
comply; and
(2) Ensure contractor compliance to the same extent as the agency
would be required to comply, if the agency operated the facilities or
vehicles.
23.405 Waste reduction program.
To support pollution prevention and agency efforts to minimize
waste in accordance with E.O. 14057, contracts for contractor operation
of Government-owned or -leased facilities or for support services at
Government-owned or -operated facilities shall require the contractor
to promote cost-effective waste reduction in all operations and
facilities covered by the contract.
[[Page 51691]]
23.406 Contract clauses.
(a) Insert the clause at 52.223-5, Pollution Prevention and Right-
to-Know Information, in solicitations and contracts that provide for
performance, in whole or in part, on a Federal facility.
(b) Insert the clause at 52.223-19, Compliance With Environmental
Management Systems, in solicitations and contracts for contractor
operation of Government-owned or -leased facilities or vehicles located
in the United States, if an agency uses an EMS and contractor
activities affect aspects of the agency's environmental management. For
facilities located outside the United States, the agency head may
determine that use of the clause is in the best interest of the
Government.
(c) Insert the clause at 52.223-10, Waste Reduction Program, in
solicitations and contracts for contractor operation of Government-
owned or -leased facilities and all solicitations and contracts for
support services at Government-owned or -operated facilities.
Subpart 23.5 [Transferred to Part 26]
0
42. Transfer subpart 23.5, consisting of sections 23.500 through
23.506, to part 26.
Subpart 23.6 [Removed and Reserved]
0
43. Remove and reserve subpart 23.6, consisting of sections 23.601 and
23.602.
Subpart 23.7 [Removed and Reserved]
0
44. Remove and reserve subpart 23.7, consisting of sections 23.700
through 23.705.
0
45. Revise subpart 23.8 to read as follows:
Subpart 23.8--Greenhouse Gas Emissions
Sec.
23.800 Scope of subpart.
23.801 Policy.
23.802 Solicitation provision.
Subpart 23.8--Greenhouse Gas Emissions
23.800 Scope of subpart.
This subpart addresses public disclosure of greenhouse gas
emissions and reduction goals.
23.801 Policy.
In order to better understand both direct and indirect greenhouse
gas emissions that result from Federal activities, offerors that are
registered in the System for Award Management (SAM) and received $7.5
million or more in Federal contract awards in the prior Federal fiscal
year are required to--
(a) Represent whether they publicly disclose greenhouse gas
emissions;
(b) Represent whether they publicly disclose a quantitative
greenhouse gas emissions reduction goal; and
(c) Provide the website for any such disclosures.
23.802 Solicitation provision.
The provision at 52.223-22, Public Disclosure of Greenhouse Gas
Emissions and Reduction Goals--Representation, is required only when
52.204-7, System for Award Management, is included in the solicitation
(see 52.204-8, Annual Representations and Certifications).
Subpart 23.9 [Removed and Reserved]
0
46. Remove and reserve subpart 23.9, consisting of sections 23.900
through 23.903.
Subpart 23.10 [Removed and Reserved]
0
47. Remove and reserve subpart 23.10, consisting of sections 23.1000
through 23.1005.
Subpart 23.11 [Transferred to Part 26]
0
48. Transfer subpart 23.11, consisting of sections 23.1101 through
23.1105, to part 26.
PART 26--OTHER SOCIOECONOMIC PROGRAMS
Subpart 23.5 [Redesignated as Subpart 26.5]
0
49. Redesignate newly transferred subpart 23.5, consisting of sections
23.500 through 23.506, as subpart 26.5 as indicated in the table below:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
23.500 26.500
23.501 26.501
23.502 26.502
23.503 26.503
23.504 26.504
23.505 26.506
23.506 26.505
------------------------------------------------------------------------
26.504 [Amended]
0
50. Amend newly redesignated section 26.504 by--
0
a. Removing from the last sentence of paragraph (a)(5) ``postion'' and
adding ``position'' in its place; and
0
b. Removing from the end of paragraph (a)(6)(i) ``; or'' and adding a
period in its place.
26.505 [Amended]
0
51. Amend newly redesignated section 26.505 by removing from paragraph
(d)(1) ``52.223-6'' and adding ``52.226-XX'' in its place.
26.506 [Amended]
0
52. Amend newly redesignated section 26.506 by removing ``23.501'' and
``52.223-6'' and adding ``26.501'' and ``52.226-XX'' in their places,
respectively.
Subpart 23.11 [Redesignated as Subpart 26.6]
0
53. Redesignate newly transferred subpart 23.11, consisting of sections
23.1101 through 23.1105, as subpart 26.6 as indicated in the table
below:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
23.1101 26.601
23.1102 26.602
23.1103 26.603
23.1104 26.604
23.1105 26.605
------------------------------------------------------------------------
26.605 [Amended]
0
54. Amend newly redesignated section 26.605 by removing ``52.223-18''
and adding ``52.226-YY'' in its place.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
36.001 [Amended]
0
55. Amend section 36.001 by--
0
a. Removing from the definition of ``Construction and demolition
materials and debris'' the phrase ``means materials and debris
generated'' and adding the phrase ``means waste materials and debris
generated'' in its place;
0
b. Revising the definition of ``Diverting''; and
0
c. Adding the definition ``Modernization project'' in alphabetical
order.
The revision and addition read as follows:
36.001 Definitions.
* * * * *
Diverting means redirecting materials from disposal in landfills or
incinerators to recycling or recovery, excluding diversion to waste-to-
energy facilities.
Modernization project means a project that includes the
comprehensive replacement or restoration of virtually all major
systems, interior finishes (such as ceilings, partitions, doors, and
floor finishes), and building features.
0
56. Amend section 36.104 by revising paragraph (b) to read as follows:
36.104 Policy.
* * * * *
(b) Agencies shall implement high-performance sustainable building
design, construction, renovation, repair, commissioning, operation and
[[Page 51692]]
maintenance, management, and deconstruction practices so as to--
(1) Ensure that--
(i) All new construction and modernization projects greater than
25,000 gross square feet are designed, constructed, and maintained to
meet and, wherever practicable, exceed Federal sustainable design and
operations principles for new construction and modernization projects
in accordance with the Council on Environmental Quality's Guiding
Principles for Sustainable Federal Buildings and Associated
Instructions (Guiding Principles) (available at https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf); and
(ii) All renovation projects of existing Federal buildings must
use, to the greatest extent technically feasible and practicable,
Federal sustainable design and operations principles for existing
buildings in accordance with the Guiding Principles;
(2) Identify alternatives to renovation that reduce existing
assets' deferred maintenance costs;
(3) Ensure that rehabilitation of federally-owned historic
buildings utilizes best practices and technologies in retrofitting to
promote long-term viability of the buildings; and
(4) Ensure pollution prevention and eliminate waste by diverting at
least 50 percent of non-hazardous construction and demolition materials
and debris.
36.601-3 [Amended]
0
57. Amend section 36.601-3 by removing from paragraph (a)(2) ``subpart
23.2'' and adding ``23.107-3'' in its place.
PART 37--SERVICE CONTRACTING
37.102 [Amended]
0
58. Amend section 37.102 by removing from paragraph (i) ``part 23'' and
adding ``subpart 23.1 (see 23.103(c))'' in its place.
PART 39--ACQUISITION OF INFORMATION TECHNOLOGY
0
59. Amend section 39.101 by revising paragraphs (a)(1)(ii) and (iii) to
read as follows:
39.101 Policy.
(a)(1) * * *
(ii) The requirements for sustainable products and services (as
defined in 2.101) in accordance with subpart 23.1;
(iii) Policies to enable power management and other energy-
efficient or environmentally preferable features on all agency
electronic products; and
* * * * *
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
60. Amend section 42.302 by--
0
a. Removing from paragraph (a)(66) ``23.5'' and adding ``26.5'' in its
place; and
0
b. Revising paragraphs (a)(68)(ii) and (iii).
The revision reads as follows:
42.302 Contract administration functions.
(a) * * *
(68) * * *
(ii) Monitoring contractor compliance with specifications or other
contractual requirements requiring the delivery, use, or furnishing of
sustainable products and services (as defined in 2.101) in accordance
with subpart 23.1. This must occur as part of the quality assurance
procedures set forth in part 46; and
(iii) As required in the contract, ensuring that the contractor
complies with the reporting requirements relating to recovered material
content (see 52.223-9) and biobased products (see 52.223-2) utilized in
contract performance.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.204-4 [Removed and Reserved]
0
61. Remove and reserve section 52.204-4.
0
62. Amend section 52.204-8 by--
0
a. Revising the date of the provision and paragraph (c)(1)(xvii);
0
b. Removing from the end of paragraph (c)(1)(xix) the parenthesis;
0
c. Removing paragraph (c)(2)(vi); and
0
d. Redesignating paragraphs (c)(2)(vii) and (viii) as paragraphs
(c)(2)(vi) and (vii).
The revisions read as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (DATE)
* * * * *
(c)(1) * * *
(xvii) 52.223-1, Biobased Product Certification. This provision
applies to solicitations that require the delivery or specify the
use of biobased products in USDA-designated product categories; or
include the clause at 52.223-2, Reporting of Biobased Products Under
Service and Construction Contracts.
* * * * *
52.211-5 [Amended]
0
63. Amend section 52.211-5 by removing from the introductory text
``11.304'' and adding ``11.302'' in its place.
0
64. Amend section 52.212-5 by--
0
a. Revising the date of the clause and paragraphs (b)(39) and (40);
0
b. Removing paragraphs (b)(41) through (45);
0
c. Redesignating paragraphs (b)(46) and (47) as paragraphs (b)(41) and
(42);
0
d. Revising newly redesignated paragraphs (b)(41) and (42) and adding
paragraph (b)(43);
0
e. Redesignating paragraphs (b)(48) through (55) as paragraphs (b)(44)
through (51);
0
f. Adding a new paragraph (b)(52); and
0
g. Redesignating paragraphs (b)(56) through (64) as paragraphs (b)(53)
through (61).
The revisions and additions read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Products and Commercial Services (DATE)
* * * * *
(b) * * *
_ (39) 52.223-11, Ozone-Depleting Substances and High Global
Warming Potential Hydrofluorocarbons (DATE) (42 U.S.C. 7671, et
seq.).
_ (40) 52.223-12, Maintenance, Service, Repair, or Disposal of
Refrigeration Equipment and Air Conditioners (DATE) (42 U.S.C. 7671,
et seq.).
_ (41) 52.223-20, Aerosols (JUN 2016) (42 U.S.C. 7671, et seq.).
_ (42) 52.223-21, Foams (JUN 2016) (42 U.S.C. 7671, et seq.).
_ (43) 52.223-XX, Sustainable Products and Services (DATE) (E.O.
14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C.
7671l).
* * * * *
_ (52) 52.226-YY, Encouraging Contractor Policies to Ban Text
Messaging While Driving (DATE) (E.O. 13513).
* * * * *
0
65. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (a)(1)(viii) through (xi) as paragraphs
(a)(1)(ix) through (xii) and adding a new paragraph (a)(1)(viii);
0
c. Revising paragraphs (b)(1)(xi) through (xiii);
0
d. Removing paragraph (b)(1)(xiv);
0
e. Redesignating paragraphs (b)(1)(xv) through (xxi) as paragraphs
(b)(1)(xiv) through (xx); and
0
f. Revising newly redesignated paragraphs (b)(1)(xiv) and (xv).
The revisions and addition read as follows:
[[Page 51693]]
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Products and Commercial Services) (DATE)
(a) * * *
(1) * * *
(viii) 52.223-XX, Sustainable Products and Services (DATE) (E.O.
14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C.
7671l).
* * * * *
(b) * * *
(1) * * *
(xi) 52.223-5, Pollution Prevention and Right-to-Know
Information (MAY 2011) (42 U.S.C. 11001-11050 and 13101-13109)
(Applies to services performed on Federal facilities).
(xii) 52.223-11, Ozone-Depleting Substances and High Global
Warming Potential Hydrofluorocarbons (DATE) (42 U.S.C. 7671, et
seq.) (Applies to contracts for products as prescribed at FAR
23.109(d)(1)).
(xiii) 52.223-12, Maintenance, Service, Repair, or Disposal of
Refrigeration Equipment and Air Conditioners (DATE) (42 U.S.C. 7671,
et seq.) (Applies to maintenance, service, repair, or disposal of
refrigeration equipment and air conditioners).
(xiv) 52.223-20, Aerosols (DATE) (42 U.S.C. 7671, et seq.)
(Applies to contracts for products that may contain high global
warming potential hydrofluorocarbons as a propellant or as a
solvent; or contracts for maintenance or repair of electronic or
mechanical devices).
(xv) 52.223-21, Foams (DATE) (42 U.S.C. 7671, et seq.) (Applies
to contracts for products that may contain high global warming
potential hydrofluorocarbons or refrigerant blends containing
hydrofluorocarbons as a foam blowing agent; or contracts for
construction of buildings or facilities.
* * * * *
0
66. Revise section 52.223-1 to read as follows:
52.223-1 Biobased Product Certification.
As prescribed in 23.109(c)(1), insert the following provision:
Biobased Product Certification (DATE)
As required by the Farm Security and Rural Investment Act of
2002 (7 U.S.C. 8101(4)) and the Energy Policy Act of 2005 (7 U.S.C.
8102(a)(2)(F)), the offeror certifies, by signing this offer, that
biobased products (within categories of products listed by the
United States Department of Agriculture in 7 CFR part 3201, subpart
B) to be used or delivered in the performance of the contract, other
than biobased products that are not purchased by the offeror as a
direct result of this contract, will comply with the applicable
specifications or other contractual requirements.
(End of provision)
0
67. Revise section 52.223-2 to read as follows:
52.223-2 Reporting of Biobased Products Under Service and Construction
Contracts.
As prescribed in 23.109(c)(2), insert the following clause:
Reporting of Biobased Products Under Service and Construction Contracts
(DATE)
(a) Definitions. As used in this clause--
Biobased product means a product determined by the U.S.
Department of Agriculture (USDA) to be a commercial product 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. (7 U.S.C. 8101) (7 CFR 3201.2).
USDA-designated product category means a generic grouping of
products that are or can be made with biobased materials--
(1) That are listed by USDA in a procurement guideline (7 CFR
part 3201, subpart B); and
(2) For which USDA has provided purchasing recommendations
(available at https://www.biopreferred.gov).
(b) The Contractor shall report to https://www.sam.gov, with a
copy to the Contracting Officer, on the product types and dollar
value of any biobased products in USDA-designated product categories
purchased by the Contractor during the previous Government fiscal
year, between October 1 and September 30; and
(c) Submit this report no later than--
(1) October 31 of each year during contract performance; and
(2) At the end of contract performance.
0
68. Amend section 52.223-3 by revising the introductory text and the
introductory text of Alternate I to read as follows:
52.223-3 Hazardous Material Identification and Material Safety Data.
As prescribed in 23.304(a)(1), insert the following clause:
* * * * *
Alternate I (JUL 1995) As prescribed in 23.304(a)(2), add the
following paragraph (i) to the basic clause:
* * * * *
52.223-4 [Amended]
0
69. Amend section 52.223-4 by removing from the introductory text
``23.406(c)'' and adding ``23.109(b)(1)'' in its place.
0
70. Amend section 52.223-5 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Removing paragraph (c)(6), Alternate I, and Alternate II.
The revision reads as follows:
52.223-5 Pollution Prevention and Right-to-Know Information.
As prescribed in 23.406(a), insert the following clause:
Pollution Prevention and Right-to-Know Information (DATE)
* * * * *
52.223-6 [Redesignated as 52.226-XX]
0
71. Redesignate section 52.223-6 as section 52.226-XX.
0
72. Amend section 52.223-7 by:
0
a. Revising the section heading; and
0
b. Removing from the introductory text ``23.602'' and adding
``23.304(b)'' in its place.
The revision reads as follows:
52.223-7 Notice of Radioactive Materials.
* * * * *
52.223-9 [Amended]
0
73. Amend section 52.223-9 by removing from the introductory text and
the introductory text of Alternate I ``23.406(d)'' and adding
``23.109(b)(2)'' in its place.
0
74. Amend section 52.223-10 by--
0
a. Revising the introductory text and the date of the clause; and
0
b. Removing from paragraph (b) ``3(e) of Executive Order 13423'' and
adding ``207 of Executive Order 14057'' in its place.
The revisions read as follows:
52.223-10 Waste Reduction Program.
As prescribed in 23.406(c), insert the following clause:
Waste Reduction Program (DATE)
* * * * *
0
75. Amend section 52.223-11 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Removing paragraph (c); and
0
c. Redesignating paragraph (d) as paragraph (c).
The revisions read as follows:
52.223-11 Ozone-Depleting Substances and High Global Warming Potential
Hydrofluorocarbons.
As prescribed in in 23.109(d)(1), insert the following clause:
Ozone-Depleting Substances and High Global Warming Potential
Hydrofluorocarbons (DATE)
* * * * *
0
76. Amend section 52.223-12 by--
0
a. Revising the introductory text, the date of the clause, and
paragraph (c)(4);
0
b. Removing paragraph (d); and
0
c. Redesignating paragraph (e) as paragraph (d).
The revisions read as follows:
[[Page 51694]]
52.223-12 Maintenance, Service, Repair, or Disposal of Refrigeration
Equipment and Air Conditioners.
As prescribed in 23.109(d)(2), insert the following clause:
Maintenance, Service, Repair, or Disposal of Refrigeration Equipment
and Air Conditioners (DATE)
* * * * *
(c) * * *
(4) Using reclaimed hydrofluorocarbons to service and repair
refrigeration and air conditioning equipment, where feasible.
* * * * *
52.223-13 through 52.223-17 [Removed and Reserved]
0
76. Remove and reserve sections 52.223-13 through 52.223-17.
52.223-18 [Redesignated as 52.226-YY]
0
77. Redesignate section 52.223-18 as section 52.226-YY.
52.223-19 [Amended]
0
78. Amend section 52.223-19 in the introductory text by removing
``23.903'' and adding ``23.406(b)'' in its place.
52.223-20 [Amended]
0
79. Amend section 52.223-20 in the introductory text by removing
``23.804(a)(3)'' and adding ``23.109(d)(3)'' in its place.
52.223-21 [Amended]
0
80. Amend section 52.223-21 in the introductory text by removing
``23.804(a)(4)'' and adding ``23.109(d)(4)'' in its place.
52.223-22 [Amended]
0
81. Amend section 52.223-22 in the introductory text by removing
``23.804(b)'' and adding ``23.802'' in its place.
0
82. Add section 52.223-XX to read as follows:
52.223-XX Sustainable Products and Services.
As prescribed in 23.109(a), insert the following clause:
Sustainable Products and Services (DATE)
(a) Definitions. As used in this clause--
Biobased product means a product determined by the U.S.
Department of Agriculture (USDA) to be a commercial product 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. (7 U.S.C. 8101) (7 CFR 3201.2).
Recovered material means waste materials and by-products
recovered or diverted from solid waste, but the term does not
include those materials and by-products generated from, and commonly
reused within, an original manufacturing process. (42 U.S.C. 6903).
Sustainable products and services means products and services
that are subject to and meet the following applicable statutory
mandates and directives for purchasing:
(1) Statutory purchasing programs.
(i) Products containing recovered material designated by the
U.S. Environmental Protection Agency (EPA) under the Comprehensive
Procurement Guidelines (42 U.S.C. 6962) (40 CFR part 247) (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#products).
(ii) Energy- and water-efficient products that are ENERGY
STAR[supreg] certified or Federal Energy Management Program (FEMP)-
designated products. (42 U.S.C. 8259b) (10 CFR part 436, subpart C)
(https://www.energy.gov/eere/femp/search-energy-efficient-products)
and (https://www.energystar.gov/products?s=mega).
(iii) Biobased products meeting the content requirement of the
USDA under the BioPreferred[supreg] program. (7 U.S.C. 8102) (7 CFR
part 3201) (https://www.biopreferred.gov).
(iv) Acceptable chemicals, products, and manufacturing processes
listed under EPA's Significant New Alternatives Policy (SNAP)
program, which ensures a safe and smooth transition away from
substances that contribute to the depletion of stratospheric ozone.
(42 U.S.C. 7671l) (40 CFR part 82, subpart G) (https://www.epa.gov/snap).
(2) Required EPA purchasing programs.
(i) WaterSense[supreg] labeled (water efficient) products and
services (https://www.epa.gov/watersense/watersense-products).
(ii) Safer Choice-certified products (products that contain
safer chemical ingredients) (https://www.epa.gov/saferchoice/products).
(iii) Product and services that meet EPA Recommendations of
Specifications, Standards, and Ecolabels (https://www.epa.gov/greenerproducts/recommendations-specifications-standards-and-ecolabels-federal-purchasing).
(b) Requirements.
(1) Except as provided in paragraph (b)(2) of this clause, in
the performance of this contract, the Contractor shall--
(i) Deliver and furnish sustainable products and services for
Government use, including use at Government-owned contractor-
operated facilities;
(ii) Incorporate sustainable products and services into the
construction of a public building or public works; and
(iii) Furnish sustainable products and services for use in
performing services under this contract, where the cost of the
products is a direct cost to this contract (versus costs which are
normally applied to the Contractor's general and administrative
expenses or indirect costs).
(2) The contract will identify any products or services that are
not subject to this clause.
(3) Sustainable products and services must meet the applicable
standards, specifications, or other program requirements at time of
quote or offer submission.
(c) Prioritization. The Contractor shall prioritize sustainable
products and services as follows:
(1) Provide products and services that meet all applicable
statutory purchasing program requirements. When both an EPA-
designated item and a biobased product in a USDA-designated product
category could be used for the same purposes, and both meet the
agency's needs, procure the EPA-designated item.
(2) Prioritize multi-attribute sustainable products and
services, which are those that meet all applicable statutory
purchasing program requirements and one or more required EPA
purchasing programs.
(3) If no statutory purchasing program requirements apply,
procure sustainable products and services that meet required EPA
purchasing program requirements.
(4) Procure products and services that meet required EPA
purchasing programs (see paragraph (2) of the definition of
``sustainable products and services'' in paragraph (a) of this
clause) unless doing so would conflict with statute, Executive
order, or regulation that impose domestic manufacturing and content
requirements, such as the Buy American statute (41 U.S.C. chapter
83; see FAR part 25) and the Berry Amendment (10 U.S.C. 4862).
(d) Resource. The Green Procurement Compilation (GPC) available
at https://sftool.gov/greenprocurement provides a comprehensive list
of sustainable products and services and sustainable acquisition
guidance. The Contractor should review the GPC when determining
which purchasing programs apply to a specific product or service.
(End of clause)
0
83. Amend newly redesignated section 52.226-XX by--
0
a. Revising the introductory text and the date of the clause; and
0
b. Removing from paragraph (d) ``23.506'' and adding ``26.505'' in its
place.
The revisions read as follows:
52.226-XX Drug-Free Workplace.
As prescribed in 26.506, insert the following clause:
Drug-Free Workplace (DATE)
* * * * *
0
84. Amend newly redesignated section 52.226-YY by revising the
introductory text and the date of the clause to read as follows:
52.226-YY Encouraging Contractor Policies To Ban Text Messaging While
Driving.
As prescribed in 26.605, insert the following clause:
Encouraging Contractor Policies To Ban Text Messaging While Driving
(DATE)
* * * * *
[FR Doc. 2023-16012 Filed 8-1-23; 8:45 am]
BILLING CODE 6820-EP-P
