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[Federal Register: August 22, 1997 (Volume 62, Number 163)]
[Rules and Regulations]               
[Page 44809-44813]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au97-21]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 10, 11, 13, 15, 23, 36, 42, and 52

[FAC 97-01; FAR Case 92-054A; Item V]
RIN 9000-AG40

 
Federal Acquisition Regulation; **Environmentally****Sound****Products**

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule adopted as final with changes.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed to adopt as final, with 
changes, the interim rule published as Item II of Federal Acquisition 
Circular 90-27 on May 31, 1995. The rule amends the Federal Acquisition 
Regulation (FAR) to incorporate policies for the acquisition of 
**environmentally** preferable and energy-efficient **products** and services. 
This regulatory action was not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993, 
and is not a major rule under 5 U.S.C. 804.

DATE: Effective October 21, 1997.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405 (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202) 
501-1758. Please cite FAC 97-01, FAR case 92-054A.

SUPPLEMENTARY INFORMATION:

A. Background

    An interim rule was published in the Federal Register at 60 FR 
28494, May 31, 1995. Ninety comments were received from 18 respondents.
    The Councils' analysis of those comments resulted in revisions to 
the rule to: revise the definitions of ``new'' and ``reconditioned'' at 
11.001 and in the clause at 52.211-5; delete the definitions of 
``material'' and ``other than new'' at 11.001 and in the clause at 
52.211-5; add Executive Order No. 12909 of March 8, 1994, to the list 
of statutory authorities at 11.002; clarify the policy on acceptability 
of used, reconditioned, or remanufactured supplies, and former 
Government surplus property proposed for use under a contract; delete 
the definition of ``source reduction'' at 15.601; delete all 
requirements related to ``agency designated items'' in Subpart 23.4; 
add a definition of ``pollution prevention'' at 23.703; streamline the 
clauses at 52.211-5 through 52.211-7 by combining their requirements 
into the clause at 52.211-5; eliminate the solicitation provision at 
52.223-8; and streamline the clause at 52.223-9.

B. Regulatory Flexibility Act

    A Final Regulatory Flexibility Analysis (FRFA) has been performed. 
A copy of the FRFA may be obtained from the FAR Secretariat. The FRFA 
is summarized as follows:

    This action is being taken to implement the Resource 
Conservation and Recovery Act (RCRA) (42 U.S.C. 6901, et seq.), as 
amended; Executive Order 12873, Federal Acquisition, Recycling, and 
Waste Prevention; Executive Order 12902, Energy Efficiency and Water 
Conservation at Federal Facilities; and Office of Federal 
Procurement Policy (OFPP) Policy Letter 92-4, Procurement of 
**Environmentally**-**Sound** and Energy-Efficient **Products** and Services.
    The objective of this rule is to amend the FAR to clearly 
reflect the Government's preference for the acquisition of 
**environmentally**-**sound** and energy-efficient **products** and services and 
to establish an affirmative procurement program favoring items 
containing the maximum practicable content of recovered materials. 
The rule also implements policies for procurement of items for which 
the Environmental Protection Agency (EPA) has designated minimum 
recovered material content.
    We received no public comments which specifically addressed the 
Initial Regulatory Flexibility Analysis.
    The final rule's policies regarding acceptable new and used 
materials apply to all small and large entities that perform or 
propose to perform Government contracts. No statistics are 
maintained on the number of offerors that propose used, 
reconditioned, or remanufactured materials for use under Government 
contracts.
    The requirements for minimum recovered material content for EPA-
designated items apply to all entities that supply such items, with 
a value exceeding $10,000 per year, to the Government. However, the 
final rule exempts procurements under the simplified acquisition 
threshold of $100,000 from recovered material content reporting 
requirements. Based on Fiscal Year 1995 Governmentwide procurement 
statistics for Federal Supply/Service Codes which comprise EPA-
designated items, we estimate that the Federal Government receives 
approximately 20,875 covered proposals per year from small entities, 
and awards approximately 2,280 covered contracts per year to small 
entities.
    Several reporting requirements were streamlined or eliminated in 
this final rule. Certifications of recovered material content are 
now required only in response to solicitations which are for, or 
which specify the use of, EPA-designated items. Such certifications 
are no longer required on an annual basis and are required only 
under contracts which exceed the simplified acquisition threshold.
    Reporting requirements related to agency-designated items have 
been eliminated.
    We considered elimination of the requirement that an offeror 
notify the contracting officer when the offeror proposes the use of 
used, remanufactured, or reconditioned supplies. However, we 
determined that use of such supplies under many contracts might be 
unacceptable. The notification requirement will allow contracting 
officers to continue to decide on a case-by-case basis whether to 
permit use of such supplies.

[[Page 44810]]

C. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501, et seq.) is deemed to 
apply because the final rule contains information collection 
requirements. The final rule reduces the information collection 
requirements contained in the interim rule and approved by the Office 
of Management and Budget (OMB) under OMB Control Number 9000-0134.

List of Subjects in 48 CFR Parts 1, 10, 11, 13, 15, 23, 36, 42, and 
52

    Government procurement.

    Dated: August 7, 1997.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

Interim Rule Adopted as Final With Changes

    Accordingly, the interim rule amending 48 CFR Parts 1, 7, 10, 11, 
13, 15, 23, 36, 42, and 52, which was published at 60 FR 28494, May 31, 
1995, is hereby adopted as final with the following changes:
    1. The authority citation for 48 CFR Parts 1, 7, 10, 11, 13, 15, 
23, 36, 42, and 52 continues to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

1.106  [Amended]

    2. Section 1.106 is amended in the list following the introductory 
paragraph by removing the entries ``52.210-5'' and ``52.210-6'' and the 
corresponding OMB control numbers ``9000-0030'' in both places; and by 
adding the following entries in numerical order:

------------------------------------------------------------------------
                                                                  OMB   
                        FAR segment                          control No.
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
52.211-5...................................................    9000-0030
                                                                        
                  *        *        *        *        *                 
52.223-4...................................................    9000-0134
                                                                        
                  *        *        *        *        *                 
52.223-8...................................................    9000-0134
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

PART 11--DESCRIBING AGENCY NEEDS

    3.-4. Section 11.001 is revised to read as follows:

11.001   Definitions.

    As used in this part--
    New means composed of previously unused components, whether 
manufactured from virgin material, recovered material in the form of 
raw material, or materials and by-**products** generated from, and reused 
within, an original manufacturing process; provided that the supplies 
meet contract requirements, including, but not limited to, performance, 
reliability, and life expectancy.
    Reconditioned means restored to the original normal operating 
condition by readjustments and material replacement.
    Recovered material has the meaning provided such term in 23.402.
    Remanufactured means factory rebuilt to original specifications.
    Virgin material means previously unused raw material, including 
previously unused copper, aluminum, lead, zinc, iron, other metal or 
metal ore, or any undeveloped resource that is, or with new technology 
will become, a source of raw materials.
    5. Section 11.002 is amended in paragraph (d) by revising the first 
sentence to read as follows:

11.002   Policy.

* * * * *
    (d) The Resource Conservation and Recovery Act of 1976 (42 U.S.C. 
6901, et seq.), as amended, Executive Order 12873, dated October 20, 
1993, and Executive Order 12902, dated March 8, 1994, establish 
requirements for the procurement of **products** containing recovered 
materials, and **environmentally** preferable and energy-efficient **products** 
and services. * * *
* * * * *
    6. Section 11.101 is amended by revising paragraph (b) to read as 
follows:

11.101   Order of precedence for requirements documents.

* * * * *
    (b) Agencies should prepare product descriptions to achieve maximum 
practicable use of recovered material, other materials that are 
**environmentally** preferable, and **products** that are energy-efficient (see 
subparts 23.4 and 23.7).
    7. Subpart 11.3, consisting of sections 11.301 and 11.302, is 
revised to read as follows:

Subpart 11.3--Acceptable Material

11.301   Policy.

    (a) Agencies shall not require virgin material or supplies composed 
of or manufactured using virgin material unless compelled by law or 
regulation or unless virgin material is vital for safety or meeting 
performance requirements of the contract.
    (b) Except when acquiring commercial items, agencies shall require 
offerors to identify used, reconditioned, or remanufactured supplies, 
or unused former Government surplus property, proposed for use under 
the contract. Such supplies or property may not be used in contract 
performance unless authorized by the contracting officer.
    (c) When acquiring commercial items, the contracting officer shall 
consider the customary practices in the industry for the item being 
acquired. The contracting officer may require offerors to provide 
information on used, reconditioned, or remanufactured supplies, or 
unused former Government surplus property, proposed for use under the 
contract. The request for such information shall be included in the 
solicitation and shall, to the maximum practicable extent, be limited 
to information provided pursuant to normal commercial practices.

11.302   Contract clause.

    Except when acquiring commercial items, the contracting officer 
shall insert the clause at 52.211-5, Material Requirements, in 
solicitations and contracts for supplies.

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

    8. Section 13.111 is amended by revising paragraph (h) to read as 
follows:

13.111   Inapplicable provisions and clauses.

* * * * *
    (h) 52.223-9, Certification and Estimate of Percentage of Recovered 
Material Content for EPA Designated Items.

PART 15--CONTRACTING BY NEGOTIATION

15.601  [Amended]

    9. Section 15.601 is amended by removing the definition ``Source 
reduction''.
    10. Section 15.605 is amended by revising paragraph (b)(1)(iv) to 
read as follows:

15.605  Evaluation factors and subfactors.

* * * * *
    (b) * * *
    (1) * * *
    (iv) Environmental objectives, such as promoting waste reduction 
and energy efficiency (see part 23), also shall be considered in every 
source selection, when appropriate. These considerations may be 
expressed in terms such as resource or energy conservation, pollution 
prevention, waste minimization, and recovered material content.
* * * * *

[[Page 44811]]

PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

    11. Section 23.400 is revised to read as follows:

23.400  Scope of subpart.

    This subpart prescribes policies and procedures for acquisition 
of--
    (a) Environmental Protection Agency (EPA) designated items for 
which agencies must develop and implement affirmative procurement 
programs pursuant to 42 U.S.C. 6901, et seq., and Executive Order 
12873; and
    (b) Other **products** when preference is given to offers of **products** 
containing recovered material.

23.401  [Amended]

    12. Section 23.401 is amended in the first sentence of paragraph 
(c) by inserting ``as amended,'' following ``October 20, 1993,''.
    13. Section 23.402 is amended by adding an introductory sentence 
and revising the definitions ``EPA designated item'' and ``Postconsumer 
material'' to read as follows:

23.402  Definitions.

    As used in this subpart--
    EPA designated item means an item--
    (1) That is or can be made with recovered material;
    (2) That is listed by EPA in a procurement guideline (40 CFR part 
247); and
    (3) For which EPA has provided purchasing recommendations in a 
related Recovered Materials Advisory Notice (RMAN).
    Postconsumer material means a material or finished product that has 
served its intended use and has been diverted or recovered from waste 
destined for disposal, having completed its life as a consumer item. 
Postconsumer material is a part of the broader category of ``recovered 
material.''
* * * * *
    14. Sections 23.404 and 23.405 are revised to read as follows:

23.404  Procedures.

    (a) Applicability. These procedures apply to all agency 
acquisitions of EPA designated items when--
    (1) The price of the item exceeds $10,000; or
    (2) The aggregate amount paid for items, or for functionally 
equivalent items, in the preceding fiscal year was $10,000 or more.
    (b) EPA designated items. (1) EPA designates items that are or can 
be made with recovered materials in 40 CFR part 247 and accompanying 
RMAN's. The RMAN cites the applications for which the EPA items have 
been designated and the percentages of recovered material content.
    (2) For EPA designated items, agencies shall establish an 
affirmative procurement program. The responsibilities for preparation, 
implementation, and monitoring of affirmative procurement programs 
shall be shared between technical or requirements personnel and 
procurement personnel. As a minimum, such programs shall 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.
    (3) Acquisition of EPA designated items that do not meet the EPA 
minimum recovered material standards shall be approved by an official 
designated by the agency head based on a written determination that the 
items--
    (i) Are not available within a reasonable period of time;
    (ii) Are available only at unreasonable prices;
    (iii) Are not available from a sufficient number of sources to 
maintain a satisfactory level of competition; or
    (iv) Based on technical verification, fail to meet performance 
standards in the specifications. Technical or requirements personnel 
shall provide a written statement when this determination is used 
partially or totally as a basis for an exemption. This determination 
shall be made on the basis of National Institute of Standards and 
Technology guidelines in any case in which the material is covered by 
these guidelines.
    (4) Contractor certifications required by the clause at 52.223-9 
shall be consolidated and reported in accordance with agency 
procedures.

23.405  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 52.223-4, 
Recovered Material Certification, in solicitations that are for, or 
specify the use of, recovered materials.
    (b) The contracting officer shall insert the clause at 52.223-9, 
Certification and Estimate of Percentage of Recovered Material Content 
for EPA Designated Items, in contracts exceeding the simplified 
acquisition threshold that are for, or specify the use of, an EPA 
designated item.
    15. Section 23.703 is amended by adding an introductory sentence 
and, in alphabetical order, the definition ``Pollution prevention''; 
and by revising the definition ``Waste prevention'' to read as follows:

23.703  Definitions.

    As used in this subpart--
* * * * *
    Pollution prevention means any practice that--
    (1) Reduces the amount of any hazardous substance, pollutant, or 
contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal, and reduces the hazards to public health and 
the environment associated with the release of such substances, 
pollutants, and contaminants; or
    (2) Reduces or eliminates the creation of pollutants through 
increased efficiency in the use of raw materials, energy, water, or 
other resources.
* * * * *
    Waste prevention means any change in the design, manufacturing, 
purchase, or use of materials or **products** (including packaging) to 
reduce their amount or toxicity before they become municipal solid 
waste. Waste prevention also refers to the reuse of **products** or 
materials.
* * * * *
    16. Section 23.704 is revised to read as follows:

23.704  Policy.

    (a) Agencies shall implement cost-effective contracting preference 
programs favoring the acquisition of **environmentally** preferable and 
energy-efficient **products** and services, and shall employ acquisition 
strategies that affirmatively implement the objectives in paragraph (b) 
of this section.
    (b) The following environmental objectives shall be addressed 
throughout the acquisition process:
    (1) Obtaining **products** and services considered to be 
**environmentally** preferable (based on EPA-issued guidance).
    (2) Obtaining **products** considered to be energy-efficient; i.e., 
**products** that are in the upper 25 percent of energy-efficiency for all 
similar **products**, or **products** that are at least 10 percent more 
efficient than the minimum level that meets Federal standards (see 
Executive Order 12902, Section 507).
    (3) Eliminating or reducing the generation of hazardous waste and 
the need for special material processing (including special handling, 
storage, treatment, and disposal).

[[Page 44812]]

    (4) Promoting the use of nonhazardous and recovered materials.
    (5) Realizing life-cycle cost savings.
    (6) Promoting cost-effective waste reduction when creating plans, 
drawings, specifications, standards, and other product descriptions 
authorizing material substitutions, extensions of shelf-life, and 
process improvements.

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    17. Section 36.601-3 is amended by revising paragraph (a) to read 
as follows:

36.601-3  Applicable contracting procedures.

    (a) For facility design contracts, the statement of work shall 
require that the architect-engineer specify, in the construction design 
specifications, use of the maximum practicable amount of recovered 
materials consistent with the performance requirements, availability, 
price reasonableness, and cost-effectiveness. Where appropriate, the 
statement of work also shall require the architect-engineer to consider 
energy conservation, pollution prevention, and waste reduction to the 
maximum extent practicable in developing the construction design 
specifications.
* * * * *
    18. Section 36.602-1 is amended by revising paragraph (a)(2) to 
read as follows:

36.602-1  Selection criteria.

    (a) * * *
    (2) Specialized experience and technical competence in the type of 
work required, including, where appropriate, experience in energy 
conservation, pollution prevention, waste reduction, and the use of 
recovered materials;
* * * * *
    19. Section 36.602-3 is amended by revising paragraph (c) to read 
as follows:

36.602-3  Evaluation board functions.

* * * * *
    (c) Hold discussions with at least three of the most highly 
qualified firms regarding concepts and the relative utility of 
alternative methods of furnishing the required services.
* * * * *

PART 42--CONTRACT ADMINISTRATION

    20. Section 42.302 is amended by revising paragraph (a)(68) 
introductory text and (a)(68)(i) to read as follows:

42.302  Contract administration functions.

    (a) * * *
    (68) Evaluate the contractor's environmental practices to determine 
whether they adversely impact contract performance or contract cost, 
and ensure contractor compliance with environmental requirements 
specified in the contract. Contracting officer responsibilities 
include, but are not limited to--
    (i) Ensuring compliance with specifications requiring the use of 
**environmentally** preferable and energy-efficient materials and the use 
of materials or delivery of end items with the specified recovered 
material content. This shall occur as part of the quality assurance 
procedures set forth in part 46.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    21. Section 52.211-5 is revised to read as follows:

52.211-5  Material Requirements.

    As prescribed in 11.302, insert the following clause:

Material Requirements (Oct 1997)

    (a) Definitions.
    As used in this clause--
    New means composed of previously unused components, whether 
manufactured from virgin material, recovered material in the form of 
raw material, or materials and by-**products** generated from, and 
reused within, an original manufacturing process; provided that the 
supplies meet contract requirements, including but not limited to, 
performance, reliability, and life expectancy.
    Reconditioned means restored to the original normal operating 
condition by readjustments and material replacement.
    Recovered material means waste materials and by-**products** that 
have been recovered or diverted from solid waste including 
postconsumer material, but such term does not include those 
materials and by-**products** generated from, and commonly reused 
within, an original manufacturing process.
    Remanufactured means factory rebuilt to original specifications.
    Virgin material means previously unused raw material, including 
previously unused copper, aluminum, lead, zinc, iron, other metal or 
metal ore, or any undeveloped resource that is, or with new 
technology will become, a source of raw materials.
    (b) Unless this contract otherwise requires virgin material or 
supplies composed of or manufactured from virgin material, the 
Contractor shall provide supplies that are new, as defined in this 
clause.
    (c) A proposal to provide unused former Government surplus 
property shall include a complete description of the material, the 
quantity, the name of the Government agency from which acquired, and 
the date of acquisition.
    (d) A proposal to provide used, reconditioned, or remanufactured 
supplies shall include a detailed description of such supplies and 
shall be submitted to the Contracting Officer for approval.
    (e) Used, reconditioned, or remanufactured supplies, or unused 
former Government surplus property, shall not be used unless the 
Contractor has proposed the use of such supplies, and the 
Contracting Officer has authorized their use.

(End of clause)

52.211-6 and 52.211-7  [Removed and Reserved]

    22. Sections 52.211-6 and 52.211-7 are removed and reserved.
    23. Section 52.223-4 is revised to read as follows:

52.223-4  Recovered Material Certification.

    As prescribed in 23.405(a), insert the following provision:

Recovered Material Certification (Oct 1997)

    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 to be used in 
the performance of the contract will be at least the amount required 
by the applicable contract specifications.

(End of provision)

52.223-8  [Removed and reserved]

    24. Section 52.223-8 is removed and reserved.
    25. Section 52.223-9 is revised to read as follows:

52.223-9   Certification and Estimate of Percentage of Recovered 
Material Content for EPA Designated Items.

    As prescribed in 23.405(b), insert the following clause:

Certification and Estimate of Percentage of Recovered Material Content 
For EPA Designated Items (Oct 1997)

    (a) As required by the Resource Conservation and Recovery Act of 
1976 (42 U.S.C. 6962(j)(2)(C)), the Contractor shall execute the 
following certification:

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 was at least the amount required by the applicable contract 
specifications.

----------------------------------------------------------------------
[Signature of the Officer or Employee]

----------------------------------------------------------------------
[Typed Name of the Officer or Employee]

----------------------------------------------------------------------
[Title]

----------------------------------------------------------------------
[Name of Company, Firm, or Organization]

----------------------------------------------------------------------
[Date]

(End of certification)

    (b) The Contractor also shall estimate the percentage of 
recovered materials actually used in the performance of this 
contract. The estimate is in addition to the certification in 
paragraph (a) of this clause.

[[Page 44813]]

                                Estimate                                
------------------------------------------------------------------------
                                                   Total                
                                                   dollar     Percentage
                                                  value of        of    
              EPA designated item                   EPA       recovered 
                                                 designated    material 
                                                    item      content * 
------------------------------------------------------------------------
                                                ...........  ...........
                                                ...........  ...........
                                                ...........  ...........
------------------------------------------------------------------------
* Where applicable, also include the percentage of postconsumer material
  content.                                                              

    (c) The Contractor shall submit this certification and estimate 
upon completion of the contract to

----------------------------------------------------------------------
    *To be completed in accordance with agency procedures.

(End of clause)

    26. Section 52.223-10 is amended by revising the clause date and 
paragraph (b) to read as follows:

52.223-10   Waste Reduction Program.

* * * * *

Waste Reduction Program (Oct 1997)

* * * * *
    (b) Consistent with the requirements of Section 701 of Executive 
Order 12873, the Contractor shall establish a program to promote 
cost-effective waste reduction in all operations and facilities 
covered by this contract. Any such program shall comply with 
applicable Federal, State, and local requirements, specifically 
including Section 6002 of the Resource Conservation and Recovery Act 
(42 U.S.C. 6901, et seq.) and implementing regulations.

(End of clause)

[FR Doc. 97-21490 Filed 8-21-97; 8:45 am]
BILLING CODE 6820-EP-P
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