[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2740-2741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-549]



[[Page 2740]]

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 11, 23, 39, and 52

[FAC 2005-30; FAR Case 2006-030; Item VI; Docket 2007-0001, Sequence 9]
RIN 9000-AK85


Federal Acquisition Regulation; FAR Case 2006-030, Electronic 
Products Environmental Assessment Tool (EPEAT)

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 (Councils) have agreed to adopt as 
final, without change, the interim rule published in the Federal 
Register at 72 FR 73215 on December 26, 2007. The interim rule amended 
the Federal Acquisition Regulation (FAR) to provide regulations for 
purchasing environmentally preferable products and services when 
acquiring personal computer products such as desktops, notebooks (also 
known as laptops), and monitors with use of Electronic Products 
Environmental Assessment Tool (EPEAT) pursuant to the Energy Policy Act 
of 2005 and Executive Order 13423, ``Strengthening Federal 
Environmental, Energy, and Transportation Management.''

DATES: Effective Date: February 17, 2009.

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 FAC 2005-30, FAR case 
2006-030.

SUPPLEMENTARY INFORMATION:

A. Background

    The EPEAT is a system to help purchasers in the public and private 
sectors evaluate, compare, and select desktop computers, notebooks and 
monitors based on their environmental attributes. The EPEAT also 
provides a clear and consistent set of performance criteria for the 
design of products, and provides an opportunity for manufacturers to 
secure market recognition for efforts to reduce the environmental 
impact of their products.
    This case was opened to amend the FAR to require the use of the 
EPEAT Product Registry and the IEEE (Institute of Electrical and 
Electronics Engineers) 1680 Standard for the Environmental Assessment 
of Personal Computer Products in all solicitations and contracts for 
personal computer desktops, laptops, and monitors. On January 24, 2007, 
President Bush issued Executive Order 13423, Strengthening Federal 
Environmental, Energy, and Transportation Management. Section 2(h) 
states that the head of each Agency shall ``ensure that the agency (i) 
when acquiring an electronic product to meet its requirements, meets at 
least 95 percent of those requirements with an Electronic Product 
Environmental Assessment Tool (EPEAT)-registered electronic product, 
unless there is no EPEAT standard for such product[hellip]''.
    The Councils published an interim rule on December 26, 2007 (72 FR 
73215). Two respondents submitted comments.
    1. One respondent fully supports the interim rule. As a taxpayer, 
he considers that EPEAT is a critical step in facilitating sound 
purchasing policy.
    Response: None required.
    2. The same respondent encourages DoD to expand the use of EPEAT in 
all COTS purchases of related equipment, even computers that are 
ruggedized for operational use.
    Response: DoD implementation of this rule is outside the scope of 
this case.
    3. Another respondent considers the goals of the regulation 
laudable, but objects to the process by which the Development Team 
initiated the development of EPEAT standards. The respondent objects 
that the Development Team was not rightly identified as a Federal 
Advisory Committee at its formation, and that neither the requirements 
of the Federal Advisory Committee Act (FACA), nor even its spirit, were 
met in the development of EPEAT. The respondent considers that their 
industry was deprived of the proper and necessary notice of the 
development of the EPEAT and any associated policies regarding 
implementation.
    Response: The development of the EPEAT is not an issue in this 
rulemaking. Although the Councils were not involved in the development 
of the standards, they have reviewed these issues with the 
Environmental Protection Agency (EPA) and the Office of Management and 
Budget (OMB). The EPA has demonstrated to the satisfaction of the 
Councils that the Development Team was not subject to FACA, and 
appropriate procedures were followed for development of voluntary 
consensus standards. The Councils have forwarded the respondent's 
concerns to EPA. If the respondent has further questions with regard to 
the EPEAT, key EPEAT points of contact are provided on the EPEAT 
Website at http://www.epeat.net/faq.aspx#21.
    4. The same respondent expresses particular concern because this 
rule takes a non-governmental program that was to be used voluntarily 
by purchasers and now mandates its use by all Federal Government 
agencies. The respondent also questions the urgency for issuance of an 
interim rule rather than a proposed rule.
    Response: With regard to mandating the use of the EPEAT for 
Government purchases, the rule implements the Executive Order 13423, 
Strengthening Federal Environmental, Energy, and Transportation 
Management. Section 2(h) states that the head of each Agency shall 
``ensure that the agency (i) when acquiring an electronic product to 
meet its requirements, meets at least 95 percent of those requirements 
with an Electronic Product Environmental Assessment Tool (EPEAT)-
registered electronic product, unless there is no EPEAT standard for 
such product''.
    The rule was issued as an interim rule because the Executive Order 
mandating use of the EPEAT standards was already in effect. Rules that 
implement a statute or Executive Order are generally issued as interim 
rules.
    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. Regulatory Flexibility Act

    The 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 it mandates standards 
in orders for personal computer products that will be offered for sale 
to the Government. A Final Regulatory Flexibility Analysis (FRFA) has 
been prepared and is summarized as follows:

    This final rule was initiated to implement Executive Order 
13423, Strengthening Federal Environmental, Energy, and 
Transportation Management, Section 2(h) and the IEEE (Institute of 
Electrical and Electronics Engineers) 1680 Standard for the 
Environmental Assessment of Personal Computers, for Federal use in 
meeting green purchasing requirements when acquiring personal 
computer products.

[[Page 2741]]

    There were no significant issues raised by the public comments 
in response to the initial regulatory flexibility analysis.
    As of June 2008, seven of the twenty-seven vendors who have 
registered products on the EPEAT Product Registry reported that they 
are small businesses. Data are not available on how many small 
businesses are reselling personal computer products to the 
Government, but according to the EPA's Office of Small Disadvantaged 
Business Utilization, at the time of publication of the interim 
rule, there were approximately 613 Service Disabled Veteran Owned 
Small Businesses (SDVOSBs) selling IT hardware to the Federal 
Government. These small businesses were not manufacturers of IT 
hardware, but resold IT hardware manufactured by other companies to 
the Federal Government. Many of the products these resellers sold 
could meet the IEEE 1680 Standard, and the manufacturers of these 
products had the option of getting these products EPEAT registered 
to verify that they do meet this standard.
    Because manufacturers are the parties responsible for 
determining if their products meet the IEEE 1680 Standard or not, 
there will be little to no impact on small businesses selling IT 
products to the Federal Government, who are selling EPEAT-registered 
products. In addition, the EPEAT Product Registry has been designed 
to encourage small business manufacturer participation. There is a 
sliding scale for the annual EPEAT registration fee vendors pay to 
have their products EPEAT registered based on the annual revenue of 
the vendor.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    The FAR Secretariat has submitted a copy of the FRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. A copy of 
the FRFA may be obtained from the FAR Secretariat. The Councils will 
consider comments from small entities concerning the affected FAR Parts 
11, 23, 39, 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 2006-030), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Parts 11, 23, 39, and 52

    Government procurement.

    Dated: December 24, 2008
Edward Loeb,
Acting Director, Office of Acquisition Policy.
    Interim Rule Adopted as Final Without Change
    Accordingly, the interim rule amending 48 CFR parts 11, 23, 39, and 
52 which was published in the Federal Register at 72 FR 73215 on 
December 26, 2007, is adopted as a final rule without change.
[FR Doc. E9-549 Filed 1-14-09; 8:45 am]
BILLING CODE 6820-EP-S