24554 Federal Register / Vol. 72, No. 85 / Thursday, May 3, 2007 / Proposed Rules 

research, marketing research and 

development, and promotional 

activities; reporting requirements for 

collection and dissemination of 

production, shipment, and other 

marketing information; and quality 

control, including inspection 

requirements. 

The volume control provisions of the 

order have helped stabilize supplies and 

prices of tart cherries. Recently, a 

generic domestic promotion program 

has been implemented with the intent of 

increasing consumer demand. The 

compilation and dissemination of 

aggregate statistical information 

collected from handlers is used by the 

industry to make informed production 

and marketing decisions. 

Minimum quality standards and 

inspection requirements, and 

production and marketing research, 

have not been implemented by the 

industry but the marketing order 

contains provisions for such programs 

should the industry determine it would 

be beneficial to implement them. Funds 

to administer the marketing order are 

obtained from handler assessments. 

Based on the potential benefits of the 

marketing order to producers, handlers, 

and consumers, AMS has determined 

that the order should continue without 

change. 

In regard to complaints or comments 

received from the public regarding this 

review, USDA has not received any 

comments from interested parties on 

this action. 

In considering the order’s complexity, 

AMS has determined that the marketing 

order is not unduly complex. 

During the review, the order was also 

checked for duplication and overlap 

with other regulations. AMS did not 

identify any relevant Federal rules, or 

State and local regulations that 

duplicate, overlap, or conflict with the 

marketing order for tart cherries. 

The marketing order was established 

in 1996. Since its inception, AMS and 

the tart cherry industry have 

continuously monitored its operations. 

Changes in regulations have been 

implemented to reflect current industry 

operating practices, and to solve 

marketing problems as they occur. The 

goal of these evaluations is to assure 

that the order and the regulations 

implemented under it fit the needs of 

the industry and are consistent with the 

Act. 

The Board meets whenever needed, 

but at least bi-annually, to discuss the 

marketing order and the various 

regulations issued thereunder, and to 

determine if, or what, changes may be 

necessary to reflect current industry 

practices. As a result, numerous 

regulatory changes have been made over 

the years to address industry operation 

changes and to improve program 

administration. The marketing order has 

been amended three times since its 

inception and several changes to the 

administrative rules and regulations 

have been implemented over the years 

to ensure the program continues to meet 

the industry’s needs. 

Accordingly, AMS has determined 

that the tart cherry marketing order 

should be continued. The marketing 

order was established to help the tart 

cherry industry work with USDA to 

solve marketing problems. The 

marketing order continues to be 

beneficial to producers, handlers, and 

consumers. 

AMS will continue to work with the 

tart cherry industry in maintaining an 

effective program. 

Dated: April 27, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E7–8443 Filed 5–2–07; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 12, 23, 42, and 52 

[FAR Case 2005–039; Docket 2007–0001; 

Sequence 2] 

RIN 9000–AK69 

Federal Acquisition Regulation; FAR 

Case 2005–039, Use of Products 

Containing Recovered Materials In 

Service and Construction Contracts 

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 

clarify language within the FAR on the 

use of products containing recovered 

materials, pursuant to the Resource 

Conservation and Recovery Act of 1976, 

and Executive Order 13101 ‘‘Greening 

the Government Through Waste 

Prevention, Recycling, and Federal 

Acquisition.’’ 

DATES: Interested parties should submit 

written comments to the FAR 

Secretariat on or before July 2, 2007 to 

be considered in the formulation of a 

final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2005–039 by any 

of the following methods: 

<bullet≤ 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. 

<bullet≤ Fax: 202–501–4067. 

<bullet≤ 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 2005–039 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: Mr. 

William Clark, Procurement Analyst, at 

(202) 219–1813 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAR case 2005–039. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DOD, GSA, and NASA propose to 

amend the Federal Acquisition 

Regulation (FAR) to clarify language 

within the FAR on the use of products 

containing recovered materials, 

pursuant to the Resource Conservation 

and Recovery Act of 1976, and 

Executive Order 13101 ‘‘Greening the 

Government Through Waste Prevention, 

Recycling, and Federal Acquisition.’’ 

The Councils are aware that Executive 

Order 13423, ‘‘Strengthening Federal 

Environmental, Energy, and 

Transportation Management,’’ revoked 

E.O. 13101; however, E.O. 13101 is not 

eliminated from Subpart 23.4 under this 

rule, as other conforming changes will 

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Federal Register / Vol. 72, No. 85 / Thursday, May 3, 2007 / Proposed Rules 24555 

be required. A future FAR case will 

make the conforming changes as a result 

of the E.O. 13423. 

This rule proposes to revise Subpart 

23.4, Use of Products Containing 

Recovered Materials, and associated 

provisions and clauses in FAR Part 52, 

with conforming changes in FAR Parts 

12, 23, and 42, to— 

(1) Provide for consistency when 

referring to products containing 

recovered materials; 

(2) Clarify that the requirement for 

products containing recovered materials 

applies when agencies require the 

delivery or specify the use of EPAdesignated items, and when agencies 

award contracts for services or 

construction unless the service or 

construction contract will not involve 

the use of such items; 

(3) Prescribe a new clause for use in 

service and construction contracts when 

appropriate; and 

(4) Revise the Recovered Material 

Certification provision to reflect the 

changes proposed by this rule. 

The Resource Conservation and 

Recovery Act (RCRA) was enacted by 

Congress in 1976 to establish a system 

for managing non-hazardous and 

hazardous solid wastes in an 

environmentally sound manner. 

Specifically, it provides for the 

management of hazardous wastes from 

the point of origin to the point of final 

disposal. RCRA also promotes resource 

recovery and waste minimization. RCRA 

is designed to protect human health and 

the environment; reduce or eliminate 

the generation of hazardous wastes; and 

conserve energy and natural resources. 

Section 6002 of the RCRA acknowledges 

the importance of recycling by 

mandating that government agencies 

increase their purchases of products 

containing recovered materials. 

RCRA also specifies that the 

Environmental Protection Agency (EPA) 

develop and issue procurement 

guidelines that designate specific items 

made with recovered materials. EPAdesignated items containing recovered 

materials are items listed by EPA in a 

procurement guideline, and for which 

EPA has provided purchasing 

recommendations in a related 

Recovered Materials Advisory Notice 

(RMAN). Agencies shall purchase and 

require maximum use of EPAdesignated items, taking into 

consideration competition, price, 

availability, and performance. 

Other RCRA sections mandate the 

revision of specifications requiring the 

exclusive use of virgin materials (RCRA 

Section 6002(d)), and the development 

of an affirmative procurement program 

(RCRA Section 6002(i)) that sets forth 

each agency’s policies and procedures 

for implementing the requirements of 

Section 6002 of RCRA. Under the EPA 

program, Federal agencies may choose 

not to acquire (or require the use of) 

products containing recovered materials 

if they are not available in a reasonable 

timeframe, not reasonably priced, or do 

not meet performance standards. 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. 

Solicitation of Public Comment. The 

Councils, along with the Office of 

Federal Procurement Policy (OFPP), 

wish to ensure that the EPA preference 

program includes the acquisition of 

products and services (including 

construction). In furtherance of its 

responsibility under section 6002, OFPP 

seeks to better understand the 

application of acquisition of services 

coverage and welcomes feedback. In 

commenting, please include citations, as 

appropriate, to relevant sources of 

information that may be used to 

substantiate the basis for your 

comments. 

B. 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 the proposed rule prescribes a 

new clause when agencies purchase 

Environmental Protection Agency 

(EPA)-designated items, and when 

purchasing services (including 

construction) that could include the use 

of such items. The proposed rule 

applies to all small business entities 

who contract with the Federal 

Government for delivery of EPAdesignated items or performance of 

services or construction contracts that 

involve the use of EPA-designated 

items. The Councils recognize that the 

EPA preference program has not been 

consistently implemented by 

Government agencies in services and 

construction acquisitions. However, 

with some exceptions, many agencies 

have fully implemented the program. To 

assess the impact of the rule, the 

Councils requested information and 

assistance from the Office of the Federal 

Environmental Executive (OFEE). The 

Councils considered the information 

provided by OFEE in preparation of the 

Initial Regulatory Flexibility Analysis 

(IRFA), the content of which is 

summarized as follows: 

Executive Order (E.O.) 13101 requires that 

agencies track and report annually to OFEE 

on their environmental accomplishments in 

waste prevention, recycling, and acquisition. 

Reporting is required on solid waste 

prevention practices, recycling and waste 

minimization goals and practices, 

implementation of environmentally 

preferable purchasing programs, contract 

compliance information, management 

controls, goals for training, auditing, 

purchasing and waste diversion, and 

purchases of EPA-designated recycledcontent products. In addition, Section 6002 

of the Resource Conservation and Recovery 

Act (RCRA) requires the Office of Federal 

Procurement Policy to report to Congress 

every two (2) years on the actions taken by 

the Federal agencies to implement the 

statute. 

Information obtained from OFEE indicates 

that many agencies have fully implemented 

the recovered material content program. The 

content of the RCRA reports, combined with 

(1) an OFEE baseline study conducted on 

Federal agency green building activities, (2) 

annual White House Closing the Circle 

Awards nominations in the green purchasing, 

green building, and pollution/waste 

prevention categories, and (3) discussions 

with agencies (including tours of facilities 

and reviews of training programs), indicates 

that most agencies have been incorporating 

the requirement to use products with 

recycled content in services and construction 

contracts for some time. 

The Councils recognize that the rule may 

affect small entities performing contracts for 

those agencies that have not fully 

implemented the program in service and 

construction contracts, the number of entities 

affected, and the extent to which they will be 

affected, may be significant. The rule may 

affect the types of products these businesses 

use during contract performance. Assistance 

is available to all firms at the EPA 

Comprehensive Procurement Guidelines 

website, http://www.epa.gov/cpg. EPA 

provides guidance on identifying products 

containing recovered materials, including 

Product Fact Sheets and a Supplier Database. 

Options to comply with the requirements of 

the rule can be as simple as purchasing 

products made with recovered materials to be 

used in service and construction contracts. 

The rule does not impose new requirements 

that impose a burden on contractors. 

The FAR Secretariat has submitted a 

copy of the IRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. Interested parties may 

obtain a copy from the FAR Secretariat. 

We invite comments from small 

business concerns and other interested 

parties on this issue. The Councils will 

consider comments from small entities 

concerning the affected FAR parts 12, 

23, 42, and 52 in accordance with 5 

U.S.C. 610. Interested parties must 

submit such comments separately and 

should cite 5 U.S.C. 601, et seq. (FAR 

case 2005–039), in correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply; however, these changes to the 

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24556 Federal Register / Vol. 72, No. 85 / Thursday, May 3, 2007 / Proposed Rules 

FAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Number 

9000–0134 on January 4, 2005. 

List of Subjects in 48 CFR Parts 12, 23, 

42, and 52 

Government procurement. 

Dated: April 24, 2007. 

Al Matera, 

Acting Director, Contract Policy Division. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR parts 12, 23, 

42, and 52 as set forth below: 

1. The authority citation for 48 CFR 

parts 12, 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 12—ACQUISITION OF 

COMMERCIAL ITEMS 

2. 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 products 

containing recovered materials when 

appropriate for the item being acquired. 

* * * * * 

PART 23—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

23.000 [Amended] 

3. Amend section 23.000 by removing 

from paragraph (d) ‘‘that use’’ and 

adding ‘‘containing’’ in its place. 

4. Revise Subpart 23.4, consisting of 

sections 23.400 through 23.406, to read 

as follows: 

SUBPART 23.4—USE OF PRODUCTS 

CONTAINING RECOVERED 

MATERIALS 

23.400 Scope of subpart. 

(a) The procedures in this subpart 

apply to all agency acquisitions of an 

Environmental Protection Agency 

(EPA)-designated item, if— 

(1) The price of a designated item 

exceeds $10,000; or 

(2) The aggregate amount paid for 

designated items, or for functionallyequivalent 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 Definition. 

As used in this subpart— 

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 

purchasing recommendations in a 

related Recovered Materials Advisory 

Notice (RMAN) (available at http:// 

www.epa.gov/epaoswer/non-hw/ 

procure/backgrnd.htm). 

23.402 Authorities. 

(a) The Resource Conservation and 

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

6962, requires agencies responsible for 

drafting or reviewing specifications 

used in agency acquisitions to— 

(1) Eliminate from those 

specifications any requirement 

excluding the use of recovered materials 

or requiring products to be 

manufactured from virgin materials; and 

(2) Require, for EPA-designated 

products, using recovered materials to 

the maximum extent practicable 

without jeopardizing the intended end 

use of the item. 

(b) RCRA also requires— 

(1) EPA to prepare guidelines on the 

availability, sources, and potential uses 

of recovered materials and associated 

products, including solid waste 

management services; and 

(2) Agencies to develop and 

implement affirmative procurement 

programs for EPA-designated products 

within 1 year after EPA’s designation. 

(c) Executive Order 13101 requires 

that the agency head— 

(1) Work to increase and expand 

markets for recovered materials through 

greater Government preference and 

demand for such products consistent 

with the demands of efficiency and costeffectiveness; and 

(2) Develop and implement 

affirmative procurement programs in 

accordance with direction in RCRA and 

the Executive order. 

23.403 Policy. 

Government policy on the use of 

products containing recovered materials 

considers cost, availability of 

competition, and performance. Agencies 

shall assure the use of products 

containing recovered materials 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-designated items if the agency’s 

purchases of the 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. 

(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 preference 

program; 

(ii) An agency promotion program; 

(iii) A program for requiring 

reasonable estimates, certification, and 

verification of recovered material used 

in the performance of contracts; 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-designated items 

contain recovered material, unless the 

item cannot be acquired— 

(1) Competitively within a reasonable 

timeframe; 

(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. The 

contract should specify that the 

product— 

(1) Contains the highest percent of 

recovered materials practicable; or 

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Federal Register / Vol. 72, No. 85 / Thursday, May 3, 2007 / Proposed Rules 24557 

(2) Meets the minimum content 

standards in accordance with the 

recommendations in EPA’s Recovered 

Materials Advisory Notices. 

23.405 Procedures. 

(a) Designated items and procurement 

guidelines. Contracting officers should 

refer to EPA’s list of EPA-designated 

items (available via the Internet at 

http://www.epa.gov/cpg/products.htm) 

and to their agencies’ affirmative 

procurement programs when purchasing 

products that contain recovered 

material, or services or construction that 

could include the use of products that 

contain recovered material. 

(b) Procurement exemptions. (1) Once 

an item has been designated by EPA, 

agencies shall purchase conforming 

products unless it is determined that 

conforming products cannot be 

acquired— 

(i) Competitively within a reasonable 

timeframe; 

(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 specifies a content 

level lower than the EPA recommended 

recovered materials content levels, the 

contracting officer shall place a written 

justification in the contract file. 

23.406 Solicitation provision and contract 

clauses. 

(a) Insert the provision at 52.223–4, 

Recovered Material Certification, in 

solicitations that— 

(1) Require the delivery or specify the 

use of EPA-designated items; or 

(2) Include the clause at 52.223–XX, 

Affirmative Procurement of EPAdesignated Items In Service and 

Construction Contracts. 

(b) 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. 

(c) Insert the clause at 52.223–XX, 

Affirmative Procurement of EPAdesignated Items In Service and 

Construction Contracts, in service or 

construction solicitations and contracts 

unless the contract will not involve the 

use of EPA-designated items. 

PART 42—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

5. 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, and 

products containing recovered 

materials. This must occur as part of the 

quality assurance procedures set forth in 

Part 46; and 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

6. Revise the provision in section 

52.223–4 to read as follows: 

52.223–4 Recovered Material Certification. 

* * * * * 

RECOVERED MATERIAL CERTIFICATION 

(DATE) 

As required by the Resource Conservation 

and Recovery Act of 1976 (42 U.S.C. 

6962(c)(3)(A)(i)), the offeror certifies, by 

signing this offer, that the percentage of 

recovered materials content for EPAdesignated items to be delivered or used in 

the performance of the contract will be at 

least the amount required by the applicable 

contract specifications or other contractual 

requirements. 

(End of provision) 

7. Amend section 52.223–9 by— 

a. Revising the section heading; 

b. Revising the clause heading; 

c. Revising paragraph (b)(1); and 

d. In Alternate I by— 

1. Revising the date of Alternate I; and 

2. Revising the introductory 

paragraph of the certification in 

paragraph (b). 

The revised text reads as follows. 

52.223–9 Estimate of Percentage of 

Recovered Material Content for EPADesignated Items. 

* * * * * 

ESTIMATE OF PERCENTAGE OF 

RECOVERED MATERIAL CONTENT FOR 

EPA-DESIGNATED ITEMS (DATE) 

* * * * * 

(b) * * * 

(1) Estimate the percentage of the total 

recovered material content for EPAdesignated item(s) delivered and/or used in 

contract performance, including, if 

applicable, the percentage of postconsumer 

material content; and 

* * * * * 

Alternate I (Date). * * * 

(b) * * * 

CERTIFICATION 

I, ——————————————— (name 

of certifier), am an officer or employee 

responsible for the performance of this 

contract and hereby certify that the 

percentage of recovered material content for 

EPA-designated items met the applicable 

contract specifications or other contractual 

requirements. 

* * * * * 

8. Add section 52.223–XX to read as 

follows: 

52.223–XX Affirmative Procurement of 

EPA-designated Items In Service and 

Construction Contracts. 

As prescribed in 23.406(c), insert the 

following clause: 

AFFIRMATIVE PROCUREMENT OF EPADESIGNATED ITEMS IN SERVICE AND 

CONSTRUCTION CONTRACTS (DATE) 

(a) In the performance of this contract, the 

Contractor shall make maximum use of 

products containing recovered materials that 

are EPA-designated items unless the product 

cannot be acquired— 

(1) Competitively within a timeframe 

providing for compliance with the contract 

performance schedule; 

(2) Meeting contract performance 

requirements; or 

(3) At a reasonable price. 

(b) Information about this requirement is 

available at EPA’s Comprehensive 

Procurement Guidelines Web site, http:// 

www.epa.gov/cpg/. The list of EPAdesignated items is available at http:// 

www.epa.gov/cpg/products.htm. 

(End of clause) 

[FR Doc. 07–2168 Filed 5–2–07; 8:45 am] 

BILLING CODE 6820–EP–S 

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