Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44809

the National Aeronautics and Space

Administration certify that this final

rule will not 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 most

contracts awarded to small entities use

simplified acquisition procedures or are

awarded on a competitive fixed-price

basis and do not require application of

the cost principle contained in this rule.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq. The interim rule

deleted a reporting and recordkeeping

requirement at FAR 31.205–2 under

OMB Control Number 9000–0072.

List of Subjects in 48 CFR Parts 1 and

31

Government procurement.

Interim Rule Adopted as Final Without

Change

Accordingly, the interim rule

amending 48 CFR Parts 1 and 31 which

was published at 61 FR 69287,

December 31, 1996, is adopted as a final

rule without change.

Authority: 40 U.S.C. 486(c); 10 U.S.C.

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

Dated: August 7, 1997

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

[FR Doc. 97–21489 Filed 8–21–97; 8:45 am]

BILLING CODE 6820–EP–P

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.

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 agencydesignated 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.
44810 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations

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:

FAR segment OMB 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 energyefficient 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 energyefficient (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.

* * * * *
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 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 costeffective contracting preference

programs favoring the acquisition of

environmentally preferable and energyefficient 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 energyefficiency 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).
44812 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations

(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 costeffectiveness. 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 energyefficient 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 byproducts 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,llll (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.

lllllllllllllllllllll

[Signature of the Officer or Employee]

lllllllllllllllllllll

[Typed Name of the Officer or Employee]

lllllllllllllllllllll

[Title]

lllllllllllllllllllll

[Name of Company, Firm, or Organization]

lllllllllllllllllllll

[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.
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44813

ESTIMATE

EPA designated

item

Total dollar

value of EPA

designated

item

Percentage of

recovered material 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

lllllllllllllllllllll

*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

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Part 1

[FAC 97–1; FAR Case 96–329; Item VI]

RIN 9000–AH67

Federal Acquisition Regulation; New

FAR Certifications

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Final rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR) to

reflect the provisions of Section

4301(b)(2) of the Clinger-Cohen Act of

1996 (Pub. L. 104–106). Section

4301(b)(2) prohibits the inclusion of a

new certification requirement in the

FAR for contractors or offerors unless

the certification requirement is

specifically imposed by statute, or

unless written justification for such

certification requirement is provided to

the Administrator for Federal

Procurement Policy by the FAR Council

and the Administrator approves in

writing the inclusion of the certification.

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.

DATES: 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 96–329.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule adds a new section at

FAR 1.107 to reflect the provisions of

Section 4301(b)(2) of the Clinger-Cohen

Act of 1996 (Pub. L. 104–106). Section

4301(b)(2) amends Section 29 of the

Office of Federal Procurement Policy

Act (41 U.S.C. 425) to prohibit the

inclusion of a new certification

requirement in the FAR for contractors

or offerors unless the certification

requirement is specifically imposed by

statute, or unless written justification

for such certification requirement is

provided to the Administrator for

Federal Procurement Policy by the FAR

Council and the Administrator approves

in writing the inclusion of the

certification.

B. Regulatory Flexibility Act

The final rule does not constitute a

significant FAR revision within the

meaning of FAR 1.501 and Public Law

98–577, and publication for public

comment is not required. However,

comments from small entities

concerning the affected FAR subpart

will be considered in accordance with 5

U.S.C. 610. Such comments must be

submitted separately and cite 5 U.S.C.

601, et seq. (FAC 97–1, FAR case 96–

329), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 1

Government procurement.

Dated: August 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR Part 1 is amended

as set forth below:

PART 1—FEDERAL ACQUISITION

REGULATIONS SYSTEM

1. The authority citation for 48 CFR

Part 1 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).

2. Section 1.107 is added to read as

follows:

1.107 Certifications.

In accordance with Section 29 of the

Office of Federal Procurement Policy

Act (41 U.S.C. 425), as amended by

Section 4301 of the Clinger-Cohen Act

of 1996 (Public Law 104–106), a new

requirement for a certification by a

contractor or offeror may not be

included in this chapter unless—

(a) The certification requirement is

specifically imposed by statute; or

(b) Written justification for such

certification is provided to the

Administrator for Federal Procurement

Policy by the Federal Acquisition

Regulatory Council, and the

Administrator approves in writing the

inclusion of such certification

requirement.

[FR Doc. 97–21491 Filed 8–21–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 7, 16, 37, 42, 46, and 52

[FAC 97–01; FAR Case 95–311; Item VII]

RIN 9000–AH14

Federal Acquisition Regulation;

Service Contracting

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).