77360 Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Proposed Rules 

Dated: December 12, 2006. 

Stephen L. Johnson, 

Administrator. 

For the reasons set forth in the 

preamble, title 40 CFR, chapter I, part 

112 of the Code of Federal Regulations 

is proposed to be amended as follows: 

PART 112—OIL POLLUTION 

PREVENTION 

1. The authority citation for part 112 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 

2720; E.O. 12777 (October 18, 1991), 3 CFR, 

1991 Comp., p. 351. 

2. Section 112.3 amended by revising 

paragraphs (a)(1) and (b)(1) as proposed 

to be amended elsewhere in this Federal 

Register on December 26, 2006 and 

revising paragraph (c) to read as follows: 

Subpart A—[Amended] 

§ 112.3 Requirement to prepare and 

implement a Spill Prevention, Control, and 

Countermeasure Plan. 

* * * * * 

(a) * * * 

(1) If your onshore or offshore facility 

was in operation on or before August 16, 

2002, you must maintain your Plan, but 

must amend it, if necessary to ensure 

compliance with this part, and 

implement the Plan no later than July 1, 

2009. If your onshore or offshore facility 

becomes operational after August 16, 

2002, through July 1, 2009, and could 

reasonably be expected to have a 

discharge as described in § 112.1(b), you 

must prepare and implement a Plan on 

or before July 1, 2009. 

* * * * * 

(b)(1) If you are the owner or operator 

of an onshore or offshore facility that 

becomes operational after July 1, 2009, 

and could reasonably be expected to 

have a discharge as described in 

§ 112.1(b), you must prepare and 

implement a Plan before you begin 

operations. 

* * * * * 

(c) If you are the owner or operator of 

an onshore or offshore mobile facility, 

such as an onshore drilling or workover 

rig, barge mounted offshore drilling or 

workover rig, or portable fueling facility, 

you must prepare, implement, and 

maintain a facility Plan as required by 

this section. You must maintain your 

Plan, but must amend and implement it, 

if necessary to ensure compliance with 

this part, on or before July 1, 2009. If 

your onshore or offshore mobile facility 

becomes operational after July 1, 2009, 

and could reasonably be expected to 

have a discharge as described in 

§ 112.1(b), you must prepare and 

implement a Plan before you begin 

operations. This provision does not 

require that you prepare a new Plan 

each time you move the facility to a new 

site. The Plan may be a general Plan. 

When you move the mobile or portable 

facility, you must locate and install it 

using the discharge prevention practices 

outlined in the Plan for the facility. The 

Plan is applicable only while the facility 

is in a fixed (non-transportation) 

operating mode. 

* * * * * 

[FR Doc. E6–21507 Filed 12–22–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 7, 11, 12, 13, 23, 42, 

and 52 

[FAR Case 2004–032; Docket 2006–0020; 

Sequence 13] 

RIN 9000–AK65 

Federal Acquisition Regulation; FAR 

Case 2004–032, Biobased Products 

Preference Program 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are proposing to amend the 

Federal Acquisition Regulation (FAR) to 

implement section 9002 of the Farm 

Security and Rural Investment Act of 

2002 (FSRIA), as amended by Sections 

205 and 943 of the Energy Policy Act of 

2005. Entitled Federal Procurement of 

Biobased Products, section 9002 

requires that a procurement preference 

be afforded biobased products within 

items designated by the Secretary of 

Agriculture. 

DATES: Interested parties should submit 

written comments to the FAR 

Secretariat on or before February 26, 

2007 to be considered in the 

formulation of a final rule. 

The Councils, in collaboration with 

OFPP, invite interested parties from 

both the private and public sector to 

provide comments on the biobased 

procurement preference program and 

the requirement that Federal agencies 

shall consider maximum practicable use 

of biobased products when acquiring 

products and services. 

ADDRESSES: Submit comments 

identified by FAR case 2004–032 by any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for any 

document by first selecting the proper 

document types and selecting ‘‘Federal 

Acquisition Regulation’’ as the agency 

of choice. At the ‘‘Keyword’’ prompt, 

type in the FAR case number (for 

example, FAR Case 2006–001) and click 

on the ‘‘Submit’’ button. Please include 

any personal and/or business 

information inside the document. 

You may also search for any 

document by clicking on the ‘‘Advanced 

search/document search’’ tab at the top 

of the screen, selecting from the agency 

field ‘‘Federal Acquisition Regulation’’, 

and typing the FAR case number in the 

keyword field. Select the ‘‘Submit’’

button. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VIR), 1800 F Street, NW, Room 4035, 

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAR case 2004–032 in all 

correspondence related to this case. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact William 

Clark, Procurement Analyst, at (202) 

219–1813. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAR case 2004–032. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On May 13, 2002, the President 

signed the Farm Security and Rural 

Investment Act of 2002 (FSRIA), Public 

Law 107—171. Section 9002 of the Act, 

entitled Federal Procurement of 

Biobased Products, requires that each 

Federal agency (‘‘Procuring Agency’’ as 

amended by the Energy Policy Act of 

2005), which procures products within 

items designated by the Secretary of 

Agriculture, give a preference to 

qualified biobased products, subject to 

specified exceptions. This same section 

requires the Secretary of Agriculture to 

designate items which contain products 

which are or can be produced with 

biobased products, establish 

recommended practices with respect to 

the procurement of products within the 

designated items, and provide 

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Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Proposed Rules 77361 

information as to the availability, 

relative price, performance, and 

environmental and public health 

benefits of such items. In a final rule, 

published January 11, 2005 entitled 

Guidelines for Designating Biobased 

Products for Federal Procurement, the 

USDA promulgated regulations defining 

the process for designating items. In the 

July 5, 2005 Federal Register (70 FR 

38612), USDA proposed 6 item 

containing biobased materials that it 

plans to designate for Federal 

procurement preference. In the March 

16, 2006 Federal Register (71 FR 13685) 

entitled ‘‘Designation of Biobased Items 

for Federal Procurement’’, USDA made 

a final determination about these items. 

USDA designated the following six 

items within which biobased products 

will be afforded Federal procurement 

preference, as provided for under 

section 9002 of the Farm Security and 

Rural Investment Act of 2002: Mobile 

equipment hydraulic fluids; roof 

coatings; water tank coatings; diesel fuel 

additives; penetrating lubricants; and 

bedding, bed linens, and towels. USDA 

also established minimum biobased 

content for each of these items. 

However, USDA deferred the effective 

date for two items (water tank coatings 

and bedding, bed linens, and towels) 

until such time that more than one 

manufacturer of products in these two 

items is identified and planned to 

announce that availability in a future 

Federal Register notice. In the August 

17, 2006 Federal Register (71 FR 47566 

and 47589), USDA proposed 20 

additional items containing biobased 

materials that it plans to designate for 

Federal procurement preference. 

USDA’s designation of biobased items 

parallels the approach taken by the 

Environmental Protection Agency (EPA) 

in its designation of items containing 

recovered material pursuant to 40 CFR 

part 247, subpart B. USDA indicates 

throughout the preamble of the rule that 

where a biobased item is used for the 

same purposes and to meet the same 

requirements as an EPA-designated 

recovered content product, the Federal 

agency must purchase the recovered 

content product. If, on the other hand, 

for example, biobased hydraulic fluid is 

to be used to address certain 

environmental or health requirements 

that the EPA-designated recovered 

content product would not meet, then 

the biobased product should be given 

preference, subject to cost, availability, 

and performance. 

On August 8, 2005, the President 

signed the Energy Policy Act of 2005, 

Public Law 109—58. Section 943 of the 

Energy Policy Act amended the FSRIA 

by revising the term ‘‘Federal agency’’ to 

‘‘Procuring Agency’’ in several areas of 

Section 9002. The term ‘Procuring 

agency’’ was defined as any Federal 

agency that is using Federal funds for 

procurement; or any person contracting 

with any Federal agency with respect to 

work performed under the contract. The 

amended definition expanded 

application of the Biobased Program to 

products used in the performance of 

service contracts (including 

construction). Section 205 added a 

requirement for degradable plastic ring 

carriers, see 40 CFR part 238. 

In the July 27, 2006 Federal Register 

(71 FR 42572), USDA amended 7 CFR 

2902 in order to clarify that biobased 

products from certain designated 

countries must be treated by procuring 

agencies as eligible for the procurement 

preference under FSRIA. This 

amendment requires agencies treat as 

eligible for the preference, biobased 

products composed of renewable 

agricultural materials or forestry 

materials from ‘‘designated countries,’’

as defined in 25.003, provided that 

those products otherwise meet all 

requirements for participation in the 

preference program. 

This proposed rule incorporates the 

biobased procurement preference into 

the FAR. As discussed by the USDA in 

the Supplemental Information section of 

their final rule at 70 FR 1792–1793 

(January 11, 2005), Congress had three 

primary objectives in enacting section 

9002 of FSRIA: improved demand for 

biobased products, development of the 

industrial base through value-added 

agricultural processing and 

manufacturing, and energy security. 

While environmental enhancement is 

only a possible ancillary feature to the 

first goal, the bulk of the implementing 

regulations are proposed for inclusion 

in FAR subpart 23.4 due to the 

similarities between FSRIA section 9002 

and section 6002 of the RCRA 

mandating a similar preference for items 

containing recovered materials. 

Specifically, both have similar 

triggering, preference, and exemption 

provisions; mandate a preference 

program; and require conformity 

certification. Both also require federal 

agencies responsible for drafting 

specifications to review and revise their 

specifications to require the use of 

recovered materials and biobased 

products respectively. By integrating the 

regulations implementing section 9002 

of the FSRIA and section 6002 of the 

RCRA, efficiencies can be achieved at 

the contracting officer level by 

eliminating the repetitive requirement 

of reconciling the two provisions. While 

the statutory provisions are strikingly 

similar, there are minor differences in 

the details of the two statutes as 

reflected in the proposed rule. 

The EPA program began at a time 

when contract certifications were more 

stringent than the current practice. 

Under the EPA, the offerors are required 

to furnish a preaward certification that 

they will furnish a product with the 

requisite EPA recommended recovered 

material content. At contract 

completion, the contractor is required to 

furnish an estimate of the actual 

recovered material content of the 

product delivered. The Government, in 

turn, is required to verify the accuracy 

of the contractors’ certifications. Under 

the new USDA program, offerors are 

simply required to furnish a preaward 

self-certification that they will deliver 

and/or use products containing the 

minimum biobased content. Under both 

programs, the EPA or USDA may 

propose and designate additional 

products from time to time. Under both 

programs, the Federal agencies have a 

period of 1-year period in which to 

modify their procurement programs to 

accommodate the newly designated 

products. Under both programs, Federal 

agencies may choose not to acquire 

products with recovered material or 

biobased content if they are not readily 

available, not reasonably priced, or do 

not perform satisfactorily. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Solicitation of Public Comment 

The Councils, along with OFPP, wish 

to ensure that the biobased preference 

program includes the acquisition of 

products and services (including 

construction). In furtherance of its 

responsibility under section 9002, OFPP 

seeks to better understand the 

application of acquisition of services 

coverage and welcomes feedback on this 

aspect of the proposed rule. In 

commenting, please include citations, as 

appropriate, to relevant sources of 

information that may be used to 

substantiate the basis for your 

comments. 

C. Regulatory Flexibility Act 

This proposed rule may have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because manufacturers, large or small, 

are expected to develop and market 

biobased products within the designated 

items. The actual impact will be item 

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77362 Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Proposed Rules 

specific and based on how many small 

entities are providing a specific item 

once it is designated by the United 

States Department of Agriculture. 

On March 16, 2006, the USDA issued 

a final rule in the Federal Register (71 

FR 13685) amending 7 CFR part 2902, 

Guidelines for Designating Biobased 

Products for Federal Procurement, to 

add six sections designating the first six 

of a series of items that are made with 

biobased products that would be 

afforded Federal procurement 

preference, as provided for under 

section 9002 of the Farm Security and 

Rural Investment Act of 2002. The 

Initial Regulatory Flexibility Act 

Statement is summarized as follows: 

The rule will amend the FAR to implement 

section 9002 of the Farm Security and Rural 

Investment Act (FSRIA) (Public L. 107–171, 

7 U.S.C. section 8102), as amended by the 

Energy Policy Act of 2005 (Public L. 109–58, 

section 943) and incorporate the biobased 

preference program. As USDA designates 

items through the issuance of final rules, it 

is anticipated that this rule will impact small 

business entities that manufacture or sell 

products within the designated items. The 

impact may vary based on the specific item[s] 

once they are designated by USDA. 

The objective of the rule is to incorporate 

the biobased procurement preference into the 

FAR. As discussed by the USDA in the 

Supplementary Information section of their 

final rule published in the Federal Register 

at 70 FR 1792, January 11, 2005; Congress 

had three primary objectives in enacting 

section 9002 of FSRIA: (1) improved demand 

for biobased products; (2) development of the 

industrial base through value-added 

agricultural processing and manufacturing, 

and; (3) energy security. 

The proposed rule will apply to all large 

and small business entities that seek award 

of Federal contracts that may involve the 

manufacturing, selling or use of biobased 

products. Because the program is still in its 

infancy, the number of small business 

entities impacted is unknown and cannot be 

determined by the Councils. Small business 

entities are encouraged to thoroughly review 

the USDA’s final rule entitled ‘‘Guidelines 

for Designating Biobased Products for Federal 

Procurement’’ published in the Federal 

Register at 70 FR 1792, January 11, 2005 as 

well as any subsequent publications from 

USDA concerning the program. It is 

anticipated that as items are designated by 

USDA through the issuance of final rules, 

this Federal procurement preference program 

may provide additional opportunities for 

small business entities that manufacture and 

sell USDA designated biobased products to 

Federal agencies. USDA anticipates that it 

will take approximately 4 years to designate 

all items under this program. In its final rule 

published on March 16, 2006, USDA 

indicated they have no data on the number 

of small businesses that may choose to 

develop and market products within the six 

items designated, however, USDA expects 

the number to be small. Because biobased 

products represent a small emerging market, 

only a small percentage of all manufacturers, 

large or small, are expected to develop and 

market biobased products. 

The proposed rule does contain 

information collection requirements, which 

the Paperwork Reduction Act section of this 

notice addresses more fully below. The rule 

does not duplicate, overlap, or conflict with 

any other Federal rules. There are no 

practical alternatives that will accomplish 

the objectives of this proposed rule. 

The FAR Secretariat 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 FAR Secretariat. 

The Councils will consider comments 

from small entities concerning the 

affected FAR parts 2, 7, 11, 12, 13, 23, 

42, and 52 in accordance with 5 U.S.C. 

610. Comments must be submitted 

separately and should cite 5 U.S.C 601, 

et seq. (FAR case 2004–032), in 

correspondence. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L. 104–13) applies because the proposed 

rule contains information collection 

requirements. The rule will require 

offerors to submit a certification that 

products being used or delivered in the 

performance of the contract are 

qualified biobased products that fall 

under items (generic groupings of 

biobased products) that have been 

designated by USDA for preferred 

procurement. Accordingly, the FAR 

Secretariat has submitted a request for 

approval of a new information 

collection requirement concerning OMB 

Control Number 9000–00XX, Biobased 

Products Preference Program, 

implementation of section 9002 of the 

Farm Security and Rural Investment Act 

of 2002 (Pub. L. 107—171, 7 U.S.C. 

section 8102), to the Office of 

Management and Budget under 44 

U.S.C. 3501m et seq. 

Annual Reporting Burden: 

The clause at 52.223–1 requires the 

contractor to certify the use of biobased 

material in each applicable solicitation, 

i.e. when the Federal agency purchases 

$10,000 or more of one of the USDA 

designated items or when functionally 

equivalent items purchased during the 

preceding fiscal year was $10,000 or 

more. As USDA continues to designate 

items, it is anticipated that the number 

of responses will increase over time. It 

is estimated that an average of 30 

minutes will be required for offerors and 

contractors to research, prepare, and 

submit the required information. We 

currently estimate the annual total 

burden hours as follows: 

Respondents: 6,000. 

Responses per respondent: 6. 

Total annual responses: 36,000. 

Preparation hours per response: .5. 

Total response burden hours: 18,000. 

E. Request for Comments Regarding 

Paperwork Burden 

Submit comments, including 

suggestions for reducing this burden, 

not later than February 26, 2007 to: FAR 

Desk Officer, OMB, Room 10102, NEOB, 

Washington, DC 20503, and a copy to 

the General Services Administration, 

FAR Secretariat (VIR), 1800 F Street, 

NW, Room 4035, Washington, DC 

20405. 

Public comments are particularly 

invited on: whether this collection of 

information is necessary for the proper 

performance of functions of the FAR, 

and will have practical utility; whether 

our estimate of the public burden of this 

collection of information is accurate, 

and based on valid assumptions and 

methodology; ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and ways in 

which we can minimize the burden of 

the collection of information on those 

who are to respond, through the use of 

appropriate technological collection 

techniques or other forms of information 

technology. 

Requester may obtain a copy of the 

justification from the General Services 

Administration, FAR Secretariat (VIR), 

Room 4035, Washington, DC 20405, 

telephone (202) 501–4755. Please cite 

OMB Control Number 9000–00XX, 

Biobased Products Preference Program, 

in all correspondence. 

List of Subjects in 48 CFR Parts 2, 7, 11, 

12, 13, 23, 42, and 52 

Government procurement. 

Dated: December 15, 2006. 

Ralph De Stefano, 

Director, Contract Policy Division. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR parts 2, 7, 11, 

12, 13, 23, 42, and 52 as set forth below: 

1. The authority citation for 48 CFR 

parts 2, 7, 11, 12, 13, 23, 42, and 52 

continues to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

2. Amend section 2.101 in paragraph 

(b)(2) by adding, in alphabetical order, 

the definition ‘‘Biobased product’’ to 

read as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Biobased product (7 U.S.C. 8101(2)) 

means a product determined by the U.S. 

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Department of Agriculture to be a 

commercial or industrial product (other 

than food or feed) that is composed, in 

whole or in significant part, of 

biological products or renewable 

domestic agricultural materials 

(including plant, animal, and marine 

materials) or forestry materials. 

* * * * * 

PART 7—ACQUISITION PLANNING 

3. Amend section 7.103 by revising 

paragraph (n)(2) to read as follows: 

7.103 Agency-head responsibilities. 

* * * * * 

(n) * * * 

(2) Comply with the policy in 

11.002(d) regarding procurement of 

biobased products, products containing 

recovered materials, and 

environmentally preferable and energyefficient products and services. 

* * * * * 

PART 11—DESCRIBING AGENCY 

NEEDS 

4. Amend section 11.002 by revising 

paragraph (d) to read as follows: 

11.002 Policy. 

* * * * * 

(d)(1) When agencies acquire products 

and services, various statutes and 

executive orders (identified in Part 23) 

require consideration of—

(i) Energy-efficient products and 

services (Subpart 23.2); 

(ii) Products and services that utilize 

renewable energy technologies (Subpart 

23.2); 

(iii) Products containing energyefficient standby power devices 

(Subpart 23.2); 

(iv) Products containing recovered 

materials (Subpart 23.4); 

(v) Biobased products (Subpart 23.4); 

and 

(vi) Environmentally preferable 

products and services (Subpart 23.7). 

(2) Executive agencies shall consider 

maximum practicable use of products 

and services listed in paragraph (d)(1) of 

this section when—

(i) Developing, reviewing, or revising 

Federal and military specifications, 

product descriptions (including 

commercial item descriptions) and 

standards; 

(ii) Describing Government 

requirements for products and services; 

and 

(iii) Developing source-selection 

factors. 

* * * * * 

11.101 [Amended] 

5. Amend section 11.101 by removing 

paragraph (b) and redesignating 

paragraph (c) as (b). 

6. Amend section 11.302 by revising 

paragraph (c) to read as follows: 

11.302 Policy. 

* * * * * 

(c)(1) When the contracting officer 

needs additional information to 

determine whether supplies meet 

minimum recovered material or 

biobased standards stated in the 

solicitation, the contracting officer may 

require offerors to submit additional 

information on the recycled or biobased 

content or related standards. The 

request for the information must be 

included in the solicitation. When 

acquiring commercial items, limit the 

information to the maximum extent 

practicable to that available under 

normal commercial practices. 

(2) For biobased products, the 

contracting officer may require vendors 

to provide information on life cycle 

costs and environmental and health 

benefits in accordance with 7 CFR 

2902.8. 

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS 

7. Amend section 12.301 by revising 

paragraph (e)(3) to read as follows: 

12.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

* * * * * 

(e) * * * 

(3) The contracting officer may use 

the provisions and clauses contained in 

Part 23 regarding the use of recovered 

material and biobased products when 

appropriate for the item being acquired. 

* * * * * 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

8. Amend section 13.201 by revising 

paragraph (f) to read as follows: 

13.201 General. 

* * * * * 

(f) The procurement requirements in 

Subparts 23.2, 23.4, and 23.7 apply to 

purchases at or below the micropurchase threshold. 

* * * * * 

PART 23—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

9. Amend section 23.000 by revising 

paragraph (d) to read as follows: 

23.000 Scope. 

* * * * * 

(d) Acquiring energy-and waterefficient products and services, 

environmentally preferable products, 

products that use recovered materials, 

and biobased products; and 

* * * * * 

10. Revise Subpart 23.4 to read as 

follows: 

Subpart 23.4—Use of Products 

Containing Recovered Materials and 

Biobased Products 

Sec. 

23.400 Scope of subpart. 

23.401 Definitions. 

23.402 Authorities. 

23.403 Policy. 

23.404 Agency affirmative procurement 

programs. 

23.405 Procedures. 

23.406 Solicitation provisions and contract 

clauses. 

23.400 Scope of subpart. 

(a) The procedures in this subpart 

apply to all agency acquisitions of an 

Environmental Protection Agency (EPA) 

or United States Department of 

Agriculture (USDA)-designated item, 

if—

(1) The price of the designated item 

exceeds $10,000; or 

(2) The aggregate amount paid for 

designated items, or for functionally 

equivalent designated items, in the 

preceding fiscal year was $10,000 or 

more. 

(b) While micro-purchases are 

included in determining the aggregate 

amount paid under paragraph (a)(2) of 

this section, it is not recommended that 

an agency track micro-purchases 

when—

(1) The agency anticipates the 

aggregate amount paid will exceed 

$10,000; or 

(2) The agency intends to establish or 

continue an affirmative procurement 

program in the following fiscal year. 

23.401 Definitions. 

As used in this subpart—

(a) 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 

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77364 Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Proposed Rules 

(2) For which EPA has provided 

purchasing recommendations in a 

related Recovered Materials Advisory 

Notice (RMAN). 

(b) USDA-designated item means a 

product that is or can be made with 

biobased material—

(1) That is listed by USDA in a 

procurement guideline (7 CFR part 

2902, subpart B); and 

(2) For which USDA has provided 

purchasing recommendations. 

23.402 Authorities. 

(a) The Resource Conservation and 

Recovery Act of 1976 (RCRA), 42 U.S.C. 

6962. 

(b) The Farm Security and Rural 

Investment Act of 2002 (FSRIA), 7 

U.S.C. 8102. 

(c) Executive Order 13101 of 

September 14, 1998, Greening the 

Government Through Waste Prevention, 

Recycling, and Federal Acquisition. 

(d) The Energy Policy Act of 2005, 

Public Law 109–58. 

23.403 Policy. 

Government policy on the use of 

products containing recovered materials 

and biobased products considers cost, 

availability of competition, and 

performance. Agencies shall assure the 

use of products containing recovered 

materials and biobased products to the 

maximum extent practicable without 

jeopardizing the intended use of the 

product while maintaining a satisfactory 

level of competition at a reasonable 

price. Such products shall meet the 

reasonable performance standards of the 

agency and be acquired competitively, 

in a cost-effective manner. Except as 

provided at 23.404(b), virgin material 

shall not be required by the solicitation 

(see 11.302). 

23.404 Agency affirmative procurement 

programs. 

(a) An agency must establish an 

affirmative procurement program for 

EPA and USDA-designated items if the 

agency’s purchases of designated items 

exceed the threshold set forth in 23.400. 

(1) Agencies have a period of 1 year 

to revise their procurement program(s) 

after the designation of any new item by 

EPA or USDA. 

(2) Technical or requirements 

personnel and procurement personnel 

are responsible for the preparation, 

implementation, and monitoring of 

affirmative procurement programs. 

(3) Agency affirmative procurement 

programs must include—

(i) A recovered materials and biobased 

products preference program; 

(ii) An agency promotion program; 

(iii) For EPA-designated items only, a 

program for requiring reasonable 

estimates, certification, and verification 

of recovered material used in the 

performance of contracts. Both the 

recovered material content and biobased 

programs require preaward certification 

that the products meet EPA or USDA 

recommendations. A second 

certification is required at contract 

completion for recovered material 

content; and 

(iv) Annual review and monitoring of 

the effectiveness of the program. 

(b) Agency affirmative procurement 

programs must require that 100 percent 

of purchases of EPA or USDAdesignated items contain recovered 

material or biobased content, 

respectively, unless the item cannot be 

acquired—

(1) Competitively within a reasonable 

time frame; 

(2) Meeting reasonable performance 

standards; or 

(3) At a reasonable price. 

(c) Agency affirmative procurement 

programs must provide guidance for 

purchases of EPA-designated items at or 

below the micro-purchase threshold. 

(d) Agencies may use their own 

specifications or commercial product 

descriptions when procuring products 

containing recovered materials or 

biobased products. When using either, 

the contract should specify—

(1) For products containing recovered 

materials, that the product is composed 

of the—

(i) Highest percent of recovered 

materials practicable; or 

(ii) Minimum content standards in 

accordance with EPA’s Recovered 

Materials Advisory Notices; and 

(2) For biobased products, that the 

product is composed of—

(i) The highest percentage of biobased 

material practicable; or 

(ii) USDA’s recommended minimum 

contents standards. 

(e) Agencies shall treat as eligible for 

the preference for biobased products, 

products from ‘‘designated countries,’’

as defined in 25.003, provided that 

those products—

(1) Meet the criteria for the definition 

of biobased product, except for the 

requirement that renewable agricultural 

materials (including plant, animal, and 

marine materials) or forestry materials 

in such product must be domestic; and 

(2) Otherwise meet all requirements 

for participation in the preference 

program. 

23.405 Procedures. 

(a) Designated items and procurement 

guidelines.—(1) Recovered Materials. 

Contracting officers should refer to 

EPA’s list of EPA-designated items 

(available via the Internet at http:// 

www.epa.gov/cpg/) and to their 

agencies’ affirmative procurement 

program when purchasing products that 

contain recovered material, or services 

that could include the use of products 

that contain recovered material. 

(2) Biobased products. Contracting 

officers should refer to USDA’s list of 

USDA-designated items (available 

through the Internet at http:// 

www.biobased.oce.usda.gov) and to 

their agencies’ affirmative procurement 

program when purchasing supplies that 

contain biobased material or when 

purchasing services that could include 

supplies that contain biobased material. 

(b) Procurement exemptions.—(1) 

Once an item has been designated by 

either EPA or USDA, agencies shall 

purchase conforming products unless it 

is determined that conforming products 

cannot be acquired—

(i) Competitively within a reasonable 

time frame; 

(ii) Meeting reasonable performance 

standards; or 

(iii) At a reasonable price. 

(2) When an exemption is used for an 

EPA designated item or the procurement 

of a product containing recovered 

material does not meet or exceed the 

EPA recovered material content 

guidelines, the contracting officer shall 

place a written justification in the 

contract file. 

(c) Program priorities. When both the 

USDA-designated item and the EPAdesignated item will be used for the 

same purposes, and both meet the 

agency’s needs, the agency shall 

purchase the EPA-designated item. 

23.406 Solicitation provisions and 

contract clauses. 

(a) Insert the provision at 52.223–1, 

Biobased Product Certification, in 

solicitations that—

(1) Require the delivery or specify the 

use of USDA-designated items; or 

(2) Include the clause at 52.223–XX. 

(b) Insert the provision at 52.223—4, 

Recovered Material Certification, in 

solicitations that are for, or specify the 

use of, EPA-designated items. 

(c) Insert the clause at 52.223—9, 

Estimate of Percentage of Recovered 

Material Content for EPA-designated 

Items, in solicitations and contracts 

exceeding $100,000 that include the 

provision at 52.223—4. If technical 

personnel advise that estimates can be 

verified, use the clause with its 

Alternate I. 

(d) Insert the clause at 52.223–XX, 

Affirmative Procurement of Biobased 

Products Under Service and 

Construction Contracts, in service or 

construction solicitations and contracts 

unless the contract will not involve the 

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Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Proposed Rules 77365 

use of USDA-designated items at http:// 

www.biobased.oce.usda.gov or 7 CFR 

part 2902. 

23.701 [Removed and Reserved] 

11. Remove and reserve section 

23.701. 

12. Amend section 23.702 by adding 

paragraph (g) to read as follows: 

23.702 Authorities. 

* * * * * 

(g) Farm Security and Rural 

Investment Act of 2002 (FSRIA) (7 

U.S.C. 8102). 

13. Amend section 23.703 by revising 

paragraph (b)(7); and adding paragraph 

(b)(8) to read as follows: 

23.703 Policy. 

* * * * * 

(b) * * * 

(7) Promote the use of biobased 

products. 

(8) Purchase only plastic ring carriers 

that are degradable (7 USC 8102(c)(1), 

40 CFR part 238). 

PART 42—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

14. Amend section 42.302 by revising 

paragraph (a)(68)(ii) to read as follows: 

42.302 Contract administration functions. 

(a) * * * 

(68) * * * 

(ii) Monitoring contractor compliance 

with specifications or other contractual 

requirements requiring the delivery or 

use of environmentally preferable 

products, energy-efficient products, 

products containing recovered 

materials, and biobased products. This 

must occur as part of the quality 

assurance procedures set forth in Part 

46; and 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

15. Add section 52.223–1 to read as 

follows: 

52.223–1 Biobased Product Certification. 

As prescribed in 23.406(a), insert the 

following provision: 

BIOBASED PRODUCT CERTIFICATION 

(DATE) 

The Contractor shall execute the following 

certification required by the Farm Security 

and Rural Investment Act of 2002 (7 U.S.C. 

8102(c)(3)): 

I, lllllll (name of certifier), am an 

officer or employee responsible for the 

performance of this contract and I hereby 

certify that biobased products (within 

categories of items listed by the United States 

Department of Agriculture in 7 CFR part 

2902, subpart B) to be used or delivered in 

the performance of the contract will comply 

with the applicable specifications or other 

contractual requirements. 

llllllllllllllllllll 

[Signature of the Officer or Employee] 

llllllllllllllllllll 

[Typed Name of the Officer or Employee] 

llllllllllllllllllll 

[Title] 

llllllllllllllllllll 

[Name of Company, Firm, or Organization] 

llllllllllllllllllll 

[Date] 

(End of provision) 

52.223–4 [Amended] 

16. Amend section 52.223–4 by 

removing from the prescription 

‘‘23.406(a’’) and adding ‘‘23.406(b’’) in 

its place. 

52.223–9 [Amended] 

17. Amend section 52.223–9 by 

removing from the prescription 

‘‘23.406(b’’) and adding ‘‘23.406(c’’) in 

its place. 

18. Add section 52.223–XX to read as 

follows: 

52.223–XX Affirmative Procurement of 

Biobased Products Under Service and 

Construction Contracts. 

As prescribed in 23.406(d), insert the 

following clause: 

AFFIRMATIVE PROCUREMENT OF 

BIOBASED PRODUCTS UNDER SERVICE 

AND CONSTRUCTION CONTRACTS (DATE) 

(a) In the performance of this contract, the 

contractor shall make maximum use of 

biobased products that are USDA-designated 

items unless the product cannot be 

acquired—

(1) Competitively within a time frame 

providing for compliance with the contract 

performance schedule; 

(2) Meeting contract performance 

requirements; or 

(3) At a reasonable price. 

(b) Information about this requirement and 

these products is available at http:// 

www.biobased.oce.usda.gov. 

(End of clause) 

[FR Doc. 06–9846 Filed 12–22–06; 8:45 am] 

BILLING CODE 6820–EP–S 

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