2740 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

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...’’. 

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. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 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 EPEATregistered 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 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 12, 22, and 52 

[FAC 2005–30; FAR Case 2005–012; Item 

VII; Docket 2006–0020; Sequence 25] 

RIN 9000–AK31 

Federal Acquisition Regulation; FAR 

Case 2005–012, Combating Trafficking 

in Persons 

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, 

with changes, the second interim rule 

published in the Federal Register at 72 

FR 46335, August 17, 2007, amending 

the Federal Acquisition Regulation 

(FAR) to implement 22 U.S.C. 7104(g). 

This statute requires that contracts 

include a provision that authorizes the 

department or agency to terminate the 

contract, if the contractor or any 

subcontractor engages in trafficking in 

persons. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at (202) 501– 

4755. Please cite FAC 2005–30, FAR 

case 2005–012. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Trafficking Victims Protection 

Reauthorization Act (TVPRA) of 2003, 

as amended by TVPRA of 2005, 

addresses the victimization of countless 

men, women, and children in the 

United States and abroad. In order to 

implement the law, DoD, GSA, and 

NASA published a second interim rule 

in the Federal Register at 72 FR 46335, 

August 17, 2007 with request for 

comments by October 16, 2007. Five 

respondents submitted comments on the 

second interim rule. Those comments, 

summarized as follows, were considered 

by the Councils in the formation of this 

final rule: 

1. Applicability to Commercial Items. 

Four comments were received from 

three different respondents regarding 

the applicability of the rule to 

commercial items. 

(a) One respondent is concerned that 

although the FAR Matrix indicates that 

FAR clause 52.222–50 is not applicable 

to commercial items, FAR 52.212–5 

includes 52.222–50 as a clause that the 

contracting officer may mark as being 

applicable to commercial items. 

Response: The Councils concur with 

the respondent’s concern and agrees to 

indicate in the FAR clause matrix that 

clause 52.222–50 is required. 

(b) One respondent believes that by 

making the rule applicable to 

commercial items, the Councils 

misinterpreted the separate Federal 

crimes created under Chapter 77 of Title 

18, United States Code, as providing the 

necessary criminal or civil penalties for 

the contract violations to which the 

Federal Acquisition Streamlining Act 

was meant to apply. The respondent 

requests the Councils to reconsider the 

applicability to commercial items. 

Response: The Councils note that 

application of the rule to all contracts 

for supplies and services, including 

those for commercial items, is 

consistent with the broad scope of the 

statutory directive and is in compliance 

with the Federal Acquisition 

Streamlining Act’s (FASA) provision 

concerning commercial contracts. 

Specifically, the statutory language at 22 

U.S.C. 7104(g) contained no exceptions 

or limitations with regard to its 

application to Federal contracts. While 

FASA governs and limits the 

applicability of laws to commercial 

items, it also provides that if a provision 

of law contains criminal or civil 

penalties, or if the Federal Acquisition 

Regulatory Council determines that it is 

not in the best interest of the Federal 

Government to exempt commercial item 

contracts, then the provision of law will 

apply to contracts for commercial items. 

(c) Another respondent asked the 

Councils to give further consideration to 

not applying the rule to commercial 

items (subcontracts), indicating that the 

application will give rise to unintended 

consequences and create an effect 

inconsistent with Federal acquisition 

goals. 

Response: The Councils believe that 

the TVPRA of 2003 and 2005 reflects 

Congress’s intent to allow for the 


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