28494 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

4.304 Contract clause.

The contracting officer shall insert the

clause at 52.204–4, Printing/Copying

Double-Sided on Recycled Paper, in

solicitations and contracts.

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

4. Section 52.204 is added to read as

follows:

52.204–4 Printing/Copying Double-Sided

on Recycled Paper.

As prescribed in 4.304, insert the

following clause:

PRINTING/COPYING DOUBLE-SIDED ON

RECYCLED PAPER (MAY 1995)

(a) In accordance with Executive Order

12873, dated October 20, 1993, the Offeror/

Contractor is encouraged to submit paper

documents, such as offers, letters, or reports,

that are printed/copied double-sided on

recycled paper that has at least 20%

postconsumer material.

(b) The 20% standard applies to highspeed copier paper, offset paper, forms bond,

computer printout paper, and carbonless

paper. A higher standard of 50% recovered

material, with 20% postconsumer material,

applies to other uncoated printing and

writing papers such as writing and office

paper, book paper, cotton fiber paper, and

cover stock. An alternative standard for

either of the standards specified in this

clause is 50% recovered material content of

certain industrial by-products.

(End of clause)

[FR Doc. 95–13255 Filed 5–30–95; 8:45am]

BILLING CODE 6820–EPD–M

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 7, 10, 11, 15, 23, 36, 42,

and 52

[FAC 90–27, FAR Case 92–54, Item II]

RIN 9000–AG40

Federal Acquisition Regulation;

Environmentally Preferable Products

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule with request for

comment.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed to an interim rule amending the

Federal Acquisition Regulation (FAR) to

incorporate policies for the acquisition

of environmentally preferable and

energy-efficient products and services.

This regulatory action was subject to

Office of Management and Budget

review under Executive Order 12866,

dated September 30, 1993.

DATES: Effective Date: May 31, 1995.

Comment Date: Comments should be

submitted to the FAR Secretariat at the

address shown below on or before July

31, 1995. To be considered in the

formulation of a final rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (VRS), 18th & F Streets, NW,

Room 4035, Attn: Ms. Beverly Fayson,

Washington, DC 20405.

Please cite FAC 90–27, FAR case 92–

54 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT:

Mr. Ralph DeStefano at (202) 501–1758

in reference to this FAR case. For

general information, contact the FAR

Secretariat, Room 4037, GS Building,

Washington, DC 20405 (202) 501–4755.

Please cite FAC 90–27, FAR case 92–54.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule implements the

Resource Conservation and Recovery

Act (RCRA) (42 U.S.C. 6901, et seq.);

Executive Order 12873, Federal

Acquisition, Recycling, and Waste

Prevention (58 FR 54911, October 22,

1993); and Office of Federal

Procurement Policy (OFPP) Policy

Letter 92–4, Procurement of

Environmentally-Sound and EnergyEfficient Products and Services (57 FR

53362, November 9, 1992).

The rule amends FAR Parts 7, 10, 11,

15, 23, 36, 42, and 52 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.

Definitions of ‘‘new’’ and ‘‘other than

new’’ are added at 10.001, in the clauses

at 52.210–5 and 52.210–7, and in the

provision at 52.210–6. A new provision

and clause are added at 52.223–8 and

52.223–9 requiring offerors and

contractors to provide information

regarding the percentage of recovered

materials in certain items proposed for

use and actually used in contract

performance. A new clause is added at

52.223–10 requiring contractors

operating Government-owned or leased

facilities to establish cost-effective waste

reduction programs.

B. Regulatory Flexibility Act

This interim 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 rule establishes a preference

for the acquisition of environmentallysound and energy-efficient products and

services and requires that contracts for

certain items specify minimum

percentages of recovered material

content. An Initial Regulatory

Flexibility Analysis (IRFA) has been

prepared and will be provided to the

Chief Counsel for Advocacy for the

Small Business Administration. A copy

of the IRFA may be obtained from the

FAR Secretariat. Comments are invited.

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, se seq. (FAC 90–27, FAR Case 92–

54), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act (Pub.

L. 96–511) is deemed to apply because

the interim rule contains information

collection requirements. Accordingly, a

request for approval of a new

information collection requirement

concerning environmentally sound

products was submitted to the Office of

Management and Budget under 44

U.S.C. 3501, et seq. Public comments

concerning this request were invited

through a Federal Register notice

published at 59 FR 60357, November 23,

1994.

D. Determination to Issue an Interim

Rule

A determination has been made under

the authority of the Secretary of Defense

(DOD), the Administrator of General

Services (GSA), and the Administrator

of the National Aeronautics and Space

Administration (NASA) that compelling

reasons exist to promulgate this interim

rule without prior opportunity for

public comment. This action is

necessary because Executive Order

12873 required implementation and

incorporation of its policies into the

FAR by April 18, 1994. However,

pursuant to Public Law 98–577 and FAR

1.501, public comments received in

response to this interim rule will be

considered in the formation of the final

rule.

List of Subjects in 48 CFR Parts 7, 10,

11, 15, 23, 36, 42, and 52

Government procurement.
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28495

Dated: May 24, 1995.

C. Allen Olson,

Director, Office of Federal Acquisition Policy.

Therefore, 48 CFR parts 7, 10, 11, 15,

23, 36, 42, and 52 are amended as set

forth below:

1. The authority citation for 48 CFR

part 7, 10, 11, 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 7—ACQUISITION PLANNING

2. Section 7.102 is revised to read as

follows:

7.102 Policy.

Agencies shall perform acquisition

planning and conduct market surveys

for all acquisitions. This planning shall

integrate the efforts of all personnel

responsible for significant aspects of the

acquisition. The purpose of this

planning is to ensure that the

Government meets its needs in the most

effective, economical, and timely

manner.

3. Section 7.103 is amended by

redesignating paragraphs (a) through (l)

as (b) through (m) and adding new

paragraphs (a) and (n) to read as follows:

7.103 Agency-head responsibilities.

* * * * *

(a) Promoting and providing for full

and open competition (see part 6) or,

when full and open competition is not

required in accordance with part 6, for

obtaining competition to the maximum

extent practicable, with due regard to

the nature of the supplies and services

to be acquired (41 U.S.C. 253a(a)(1)).

* * * * *

(n) Ensuring that agency planners

specify needs and develop plans,

drawings, work statements,

specifications, or other product

descriptions promoting the use of

environmentally preferable and energyefficient products and services (e.g.,

promoting energy conservation and the

use of recovered material content and

the elimination or reduction of ozonedepleting substances usage), and that

these are considered in the evaluation

and award of contracts, as appropriate

(see part 23).

4. Section 7.105 is amended by

revising paragraph (b)(15); and in

paragraph (b)(17) by removing the

words ‘‘energy conservation measures’’.

The revised text reads as follows:

7.105 Contents of written acquisition

plans.

* * * * *

(b) * * *

(15) Environmental and energy

conservation objectives. Discuss all

applicable environmental and energy

conservation objectives associated with

the acquisition (see part 23), the

applicability of an environmental

assessment or environmental impact

statement (see 40 CFR part 1502), the

proposed resolution of environmental

issues, and any environmentally-related

requirements to be included in

solicitations and contracts.

* * * * *

PART 10—SPECIFICATIONS,

STANDARDS, AND OTHER PURCHASE

DESCRIPTIONS

5. Section 10.001 is amended by

adding, in alphabetical order, the

following definitions:

10.001 Definitions.

* * * * *

Material, as used in this part,

includes, but is not limited to, raw

material, parts, items, components, and

end products.

New, as used in this part, means

previously unused or composed of

previously unused materials and may

include unused residual inventory or

unused former Government surplus

property.

Other than new, as used in this part,

includes, but is not limited to, recycled,

recovered, remanufactured, used, and

reconditioned.

* * * * *

Reconditioned, as used in this part,

means restored to an earlier normal

operating condition by readjustments

and replacement of parts.

Remanufactured, as used in this part,

means factory rebuilt to new equipment

performance specification and unused

subsequent to rebuilding.

* * * * *

6. Section 10.002 is amended by

redesignating paragraph (e) as (f) and

adding a new (e) to read as follows:

10.002 Policy.

* * * * *

(e) The Resource Conservation and

Recovery Act of 1976 (42 U.S.C. 6901,

et seq.), as amended, and Executive

Order 12873, dated October 20, 1993,

establish requirements for the

procurement of products containing

recovered materials, and

environmentally preferable and energyefficient products and services.

Requiring activities shall prepare plans,

drawings, specifications, standards

(including voluntary standards), and

purchase descriptions that consider the

requirements set forth in part 23.

* * * * *

7. Section 10.004 is amended in

paragraph (a)(1) by adding a sentence at

the end of the paragraph to read as

follows:

10.004 Selecting specifications or

descriptions for use.

(a)(1) * * * Agencies should

prepared product descriptions to

achieve maximum practicable use of

recovered material and other materials

that are environmentally preferable (see

subparts 23.4 and 23.7).

* * * * *

8. Section 10.010 is revised to read as

follows:

10.010 Acquiring other than new material,

former Government surplus property, and

residual inventory.

(a) Agencies shall allow offers of other

than new material, former Government

surplus property, or residual inventory

unless it is determined that such

materials are unacceptable. When only

new material is acceptable, the

solicitation shall clearly identify the

material that must be new. Offerors

providing other than new material shall

be required to comply with the clause

at 52.210–5, New Material, the

provisions at 52.210–6, Listing of Other

Than New Material, Residual Inventory,

and Former Government Surplus

Property, and the clause at 52.210–7,

Other Than New Material, Residual

Inventory, and Former Government

Surplus Property, as appropriate.

(b) Agencies shall specify products,

including packaging, that contain the

highest practicable percentage of

recovered and environmentally

preferable materials, and where

applicable, postconsumer material,

consistent with performance

requirements, availability, price

reasonableness, and cost-effectiveness.

(c) Contracting officers shall consider

the following when determining

whether other than new materials,

former Government surplus property, or

residual inventory are acceptable:

(1) Safety of persons or property.

(2) Specification and performance

requirements.

(3) Price reasonableness.

(4) Total cost to the Government

(including maintenance, inspection,

testing, and useful life).

(d) When a contract calls for material

to be furnished at cost, the allowable

charge for former Government surplus

property shall not exceed the cost at

which the contractor acquired the

property.

9. Section 10.011 is amended by

revising paragraphs (f)(1) and (g)(1) to

read as follows:

10.011 Solicitation provisions and

contract clauses.

* * * * *
28496 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

(f)(1) The contracting officer shall

insert the provision at 52.210–6, Listing

of Other Than New Material, Residual

Inventory, and Former Government

Surplus Property, in solicitations

containing the clause at 52.210–5.

* * * * *

(g)(1) The contracting officer shall

insert the clause at 52.210–7, Other

Than New Material, Residual Inventory,

and Former Government Surplus

Property, in contracts containing the

clause at 52.210–5.

* * * * *

PART 11—ACQUISITION AND

DISTRIBUTION OF COMMERCIAL

PRODUCTS

10. Section 11.004 is amended by

revising paragraph (b); and by

redesignating paragraphs (c)(2) through

(c)(6) as (c)(4) through (c)(8) and adding

new paragraphs (c)(2) and (c)(3) to read

as follows:

11.004 Market research and analysis.

* * * * *

(b) Requirements. Agencies shall

conduct market research and analysis as

needed to—

(1) Ensure full and open competition;

(2) Ensure maximum practicable use

of recovered materials (see subpart

23.4);

(3) Promote energy conservation and

efficiency; and

(4) Meet the Government’s needs in a

cost-effective manner.

(c) * * *

(2) The availability of the same or

similar products that contain recovered

materials.

(3) The availability of the same or

similar products that are energyefficient.

* * * * *

PART 15—CONTRACTING BY

NEGOTIATION

11. Section 15.601 is amended by

adding, in alphabetical order, the

definition ‘‘source reduction’’ to read as

follows:

15.601 Definition.

* * * * *

Source reduction, as used in this

subpart, means any practice which (a)

reduces the amount of any hazardous

substance, pollutant, or contaminant

entering any waste stream or otherwise

released into the environment prior to

recycling, treatment, or disposal; and (b)

reduces the hazards to public health and

the environment associated with the

release of such substances, pollutants,

or contaminants.

* * * * *

12. Section 15.605 is amended by

adding paragraph (b)(1)(iv) to read as

follows:

15.605 Evaluation factors.

* * * * *

(b)(1) * * *

(iv) Environmental objectives, such as

promoting waste reduction, source

reduction, energy efficiency, and

maximum practicable recovered

material content (see part 23), shall also

be considered in every source selection,

when appropriate.

* * * * *

PART 23—ENVIRONMENT,

CONSERVATION, OCCUPATIONAL

SAFETY, AND DRUG-FREE

WORKPLACE

13. Section 23.201 is revised to read

as follows:

23.201 Authorities.

(a) Energy Policy and Conservation

Act (42 U.S.C. 6361(a)(1)) and Resource

Conservation and Recovery Act of 1976,

as amended (42 U.S.C. 6901, et seq.).

(b) National Energy Conservation

Policy Act (42 U.S.C. 8253 and 8262g).

(c) Executive Order 11912, April 13,

1976.

(d) Executive Order 12759, Sections 3,

9, and 10, April 17, 1991.

(e) Executive Order 12902, March 8,

1994.

14. Section 23.203 is revised to read

as follows:

23.203 Policy.

Agencies shall consider energyefficiency in the procurement of

products and services. Energy

conservation and efficiency data shall

be considered along with estimated cost

and other relevant factors in the

preparation of plans, drawings,

specifications, and other product

descriptions.

15. Subpart 23.4 is revised to read as

follows:

Subpart 23.4—Use of Recovered Materials

Sec.

23.400 Scope of subpart.

23.401 Authorities.

23.402 Definitions.

23.403 Policy.

23.404 Procedures.

23.405 Solicitation provisions and contract

clause.

Subpart 23.4—Use of Recovered

Materials

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

E. O. 12873;

(b) Agency designated items

specifying recovered material; and

(c) Other products when preference is

given to offers of products containing

recovered material.

23.401 Authorities.

(a) The statutory basis for this

program is the Resource Conservation

and Recovery Act of 1976 (RCRA), as

amended (Solid Waste Disposal Act, 42

U.S.C. 6901, et seq.). With limited

exceptions, the statute requires agencies

responsible for drafting or reviewing

specifications to ensure that they:

(1) Do not exclude the use of

recovered materials,

(2) Do not require the items to be

manufactured from virgin materials, and

(3) Do require, for EPA designated

items, the use of recovered materials to

the maximum extent practicable

without jeopardizing the intended end

use of the item. The statute further

requires agencies to develop and

implement affirmative procurement

programs for EPA designated items

within one year after EPA’s designation.

(b) The statute also requires the EPA

to prepare guidelines on the availability,

sources, and potential uses of recovered

materials and associated items,

including solid waste management

services.

(c) Executive Order 12873, dated

October 20, 1993, requires that the

Federal Government assume leadership

in making more efficient use of natural

resources through the acquisition of

items made with recovered materials

and work to increase and expand

markets for recovered materials through

greater Federal Government preference

and demand for such items. Executive

Order 12873 also provides direction for

agency development and

implementation of affirmative

procurement programs.

23.402 Definitions.

EPA designated item means an item

that is or can be made with recovered

materials and is listed by EPA in a

procurement guideline (40 CFR, chapter

1, subchapter I).

Postconsumer material means a

material or finished product that has

served its intended use and has been

discarded for disposal or recovery,

having completed its life as a consumer

item. Postconsumer material is a part of

the broader category of ‘‘recovered

material.’’

Recovered material means waste

materials and by-products which have
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28497

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.

23.403 Policy.

The Government’s policy is to aquire,

in a cost-effective manner, items

composed of the highest percentage of

recovered materials practicable

consistent with maintaining a

satisfactory level of competition without

adversely affecting performance

requirements or exposing suppliers’

employees to undue hazards from the

recovered materials.

23.404 Procedures.

(a) Applicability. These procedures

apply to all agency acquisitions where

the agency requires minimum

percentages of recovered materials. For

EPA designated items, these procedures

apply

(1) When the price of the item exceeds

$10,000 or

(2) When 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 has

designated items that are or can be made

with recovered materials in 40 CFR

chapter 1, subchapter I.

(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 which do not meet the EPA or

agency 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 determination 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) Annual contractor certifications

required by the clause at 52.223–9 shall

be consolidated and reported in

accordance with agency procedures.

(c) Agency designated items. Agency

designated items specifying recovered

material content shall be acquired

pursuant to agency procedures.

23.405 Solicitation provisions and

contract clause.

(a) The contracting officer shall insert

the provision at 52.223–4, Recovered

Material Certification, in solicitations

requiring the use of recovered materials.

(b)(1) The contracting officer shall

insert the provision at 52.223–8,

Estimate of Percentage of Recovered

Material for Designated Items to be Used

in the Performance of the Contract, in

solicitations containing a requirement

for an EPA designated item.

(2) The contracting officer shall use

Alternate I of the provision at 52.223–

8 in solicitations that do not require

EPA designated items, but do require

agency designated items requiring

recovered materials.

(3) The contracting officer shall use

Alternate II of the provision at 52.223–

8 in solicitations containing a

requirement for both EPA designated

and agency designated items.

(c) When the basic provision or

Alternate II at 52.223–8 is used, the

contracting officer shall also insert the

clause at 52.223–9, Certification of

Percentage of Recovered Material

Content for EPA Designated Items Used

in Performance of the Contract.

16. Subpart 23.7 is added to read as

follows:

Subpart 23.7—Contracting for

Environmentally Preferable and EnergyEfficient Products and Services

Sec.

23.701 Applicability.

23.702 Authorities.

23.703 Definitions.

23.704 Policy.

23.705 Application to Government-owned

or leased facilities.

23.706 Contract clause.

23.701 Applicability.

This subpart prescribes policies for

obtaining environmentally preferable

and energy-efficient products and

services.

23.702 Authorities.

(a) Resource Conservation and

Recovery Act (RCRA) (42 U.S.C. 6901, et

seq.).

(b) National Energy Conservation

Policy Act (42 U.S.C. 8262g).

(c) Pollution Prevention Act of 1990

(42 U.S.C. 13101, et seq.).

(d) Executive Order 12873, October

20, 1993.

(e) Executive Order 12856, August 3,

1993.

(f) Executive Order 12902, March 8,

1994.

23.703 Definitions.

Environmentally preferable means

products or services that have a lesser

negative effect on human health or the

environment when compared with

competing products or services that

serve the same purpose. This

comparison should use principles

recommended in guidance issued by

EPA (see Executive Order 12873,

Section 503), and may consider raw

materials acquisition, production,

manufacturing, packaging, distribution,

reuse, operation, maintenance, or

disposal of the product or service.

Recycling means the series of

activities, including collection,

separation, and processing, by which

products or other materials are

recovered from the solid waste stream

for use in the form or raw materials in

the manufacture of products other than

fuel for producing heat or power by

combustion.

Waste prevention also known as

‘‘source reduction’’ 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.

Waste reduction means preventing or

decreasing the amount of waste being

generated through waste prevention,

recycling, or purchasing recycled and

environmentally preferable products.

23.704 Policy.

(a) Agencies shall implement costeffective contracting preference

programs favoring the acquisition of

environmentally preferable and energyefficient products and services.

(b) The following environmental

objectives shall be addressed through

the acquisition process:

(1) Obtaining products and services

considered to be environmentally

preferable (based on EPA-issued

guidance) and energy-efficient.
28498 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

(2) Eliminating or reducing the

generation of hazardous waste and the

need for special material processing

(including special handling, storage,

treatment, and disposal).

(3) Promoting the use of

nonhazardous and recovered materials.

(4) Realizing life-cycle cost savings.

(5) 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;

and

(6) Otherwise employing acquisition

strategies that affirmatively implement

the objectives in paragraph (b) of this

section.

23.705 Application to Government-owned

or leased facilities.

Pursuant to Executive Order 12873,

Section 701, every new contract for

contractor operation of a Governmentowned or leased facility shall require

contractor programs to promote and

implement cost-effective waste

reduction in performing the contract. In

addition, where economically feasible,

existing contracts for contractor

operation of Government-owned or

leased facilities should be modified to

provide for cost-effective waste

reduction in contract performance.

23.706 Contract clause.

The contracting officer shall insert the

clause at 52.223–10, Waste Reduction

Program, in all solicitations and

contracts for contractor operation of

Government-owned or leased facilities.

PART 36—CONSTRUCTION AND

ARCHITECT-ENGINEER CONTRACTS

17. and 18. Section 36.601–3 is

amended by redesignating paragraphs

(a) through (c) as (b) through (d) and

adding a new paragraph (a) to read as

follows:

36.601–3 Applicable contracting

procedures.

(a) Prior to announcing a requirement

for architect-engineering services for the

design of a facility, the contracting

officer shall ask the technical official

responsible for the facility being

designed to specifically identify any

areas where recovered materials cannot

be used in the facility construction. In

those areas where recovered materials

may be used, the architect-engineer

shall specify use of the maximum

practicable amount of recovered

materials in the construction design

specifications consistent with 10.010(b).

* * * * *

19. Section 36.602–1 is amended by

redesignating paragraph (a)(6) as (a)(7)

and adding a new (a)(6) to read as

follows:

36.602–1 Selection criteria.

(a) * * *

(6) Demonstrated success in

prescribing the use of recovered

materials and achieving waste reduction

and energy efficiency in facility design.

* * * * *

20. 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, the relative utility of

alternative methods, and feasible ways

to prescribe the use of recovered

materials and achieve waste reduction

and energy-efficiency in facility design

(see part 23).

* * * * *

PART 42—CONTRACT

ADMINISTRATION

21. Section 42.302 is amended by

adding paragraph (a)(68) to read as

follows:

42.302 Contract administration functions.

(a) * * *

(68) Monitor the contractor’s

compliance with the requirements of

environmental laws including the

Resource Conservation and Recovery

Act (RCRA) (42 U.S.C. 6901, et seq.) and

other environmental requirements as

specified in the contract (see part 23).

Responsibilities of the contracting

officer shall include—

(i) Verification of contractor

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.

(ii) As required in the contract,

ensuring that the contractor complies

with the reporting requirements relating

to recovered material content utilized in

contract performance.

* * * * *

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

22. Sections 52.210–5, 52.210–6, and

52.210–7 are revised to read as follows:

52.210–5 New Material.

As prescribed in 10.011(e), insert the

following clause:

NEW MATERIALS (MAY 1995)

(a) Definitions.

Material, as used in this clause, includes,

but is not limited to, raw material, parts,

items, components, and end products.

New, as used in this clause, means

previously unused or composed of

previously unused materials and may

include unused residual inventory or unused

former Government surplus property.

Other than new, as used in this clause,

includes, but is not limited to, recycled,

recovered, remanufactured, used, and

reconditioned.

(b) Unless this contract specifies otherwise,

the Contractor represents that the supplies,

including any residual inventory and former

Government surplus property identified

under the Other Than New Material,

Residual Inventory, and Former Government

Surplus Property clause of this contract, are

new and are not of such age or so

deteriorated as to impair their usefulness or

safety.

(c) If the Contractor believes that

furnishing other than new material will be in

the Government’s interest, the Contractor

shall so notify the Contracting Officer in

writing and request authority to use such

material. The Contractor’s notice shall

include the reasons for the request along with

a proposal for any consideration due the

Government if the Contracting Officer

authorizes the use of other than new

material.

(End of clause)

52.210–6 Listing of Other Than New

Material, Residual Inventory, and Former

Government Surplus Property.

As prescribed in 10.011(f), insert the

following provision:

LISTING OF OTHER THAN NEW

MATERIAL, RESIDUAL INVENTORY, AND

FORMER GOVERNMENT SURPLUS

PROPERTY (MAY 1995)

(a) Definitions.

Material, as used in this provision,

includes, but is not limited to, raw material,

parts, items, components, and end products.

New, as used in this provision, means

previously unused or composed of

previously unused materials and may

include unused residual inventory or unused

former Government surplus property.

Other than new, as used in this provision,

includes, but is not limited to, recycled,

recovered, remanufactured, used, and

reconditioned.

(b) If the offeror proposes to furnish other

than new material, residual inventory

resulting from terminated Government

contracts, or former Government surplus

property, the offeror shall provide the

following information as an attachment to the

offer:

(1) A complete description of the materials.

(2) Quantity.

(3) Name of Government agency from

which acquired.

(4) Date of acquisition, if applicable.

No other than new material, residual

inventory or former Government surplus

property other than that listed on the

attachment shall be furnished under the
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28499

resulting contract unless authorized in

writing by the Contracting Officer.

(c) All material to be furnished under the

resultant contract must comply with the

terms and specifications contained in the

contract.

(End of provision)

52.210–7 Other Than New Material,

Residual Inventory, and Former

Government Surplus Property.

As prescribed in 10.011(g), insert the

following clause:

OTHER THAN NEW MATERIAL, RESIDUAL

INVENTORY, AND FORMER GOVERNMENT

SURPLUS PROPERTY (MAY 1995)

(a) Definitions.

Material, as used in this clause, includes,

but is not limited to, raw material, parts,

items, components, and end products.

New, as used in this clause, means

previously unused or composed of

previously unused materials and may

include unused residual inventory or unused

former Government surplus property.

Other than new, as used in this clause,

includes, but is not limited to, recycled,

recovered, remanufactured, used, and

reconditioned.

(b) The Contractor shall not furnish any

other than new material, residual inventory

resulting from terminated Government

contracts, or former Government surplus

property, unless such materials were listed in

the applicable attachment to the offer and

approved by the Contracting Officer or unless

otherwise authorized in writing by the

Contracting Officer.

(c) All materials furnished under this

contract shall comply with the terms and

specifications contained in the contract.

(End of clause)

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

(MAY 1995)

The offeror certifies, by signing this offer,

that recovered materials, as defined in FAR

23.402, will be used as required by the

applicable purchase descriptions.

(End of provision)

24. Sections 52.223–8 through

52.223–10 are added to read as follows:

52.223–8 Estimate of Percentage of

Recovered Material for Designated Items To

be Used in the Performance of the Contract.

As prescribed in 23.405(b)(1), insert

the following provision:

ESTIMATE OF PERCENTAGE OF

RECOVERED MATERIAL FOR DESIGNATED

ITEMS TO BE USED IN THE

PERFORMANCE OF THE CONTRACT (MAY

1995)

(a) By signing this offer, the offeror

estimates that the total percentage(s) of

recovered material for EPA Designated Items

(see 40 CFR, Chapter 1, Subchapter I) to be

used in the products and services to be

provided under the terms and specifications

set forth in this solicitation shall be as

follows:

Item

Estimated percentage

of recovered material–*

lllllllll lllllllll

lllllllll lllllllll

*In addition, for paper products, include the

percentage of postconsumer material.

(b) Prospective offerors are cautioned that

the Government will conclude that the

percentage(s) of recovered materials to be

used in products and services to be provided

under any resulting contract shall be ‘‘0%’’

if the estimate(s) requested in this solicitation

provision are left blank.

(c) Prospective offerors are further

cautioned that estimated percentage(s) of

recovered materials to be used in products

and services to be provided under any

resulting contract that are less than the

requirements set forth in this solicitation may

render a prospective offeror’s offer

nonresponsive.

(End of provision)

Alternate I (MAY 1955). As prescribed in

23.405(b)(2), used the basic provision and

replace the words ‘‘EPA Designated Items’’

with ‘‘Agency Designated Items’’ in

paragraph (a) of the basic provision.

Alternate II (MAY 1995). As prescribed in

23.405(b)(3), substitute the following

paragraph (a) for paragraph (a) of the basic

provision:

(a) By signing this offer, the offeror—

(1) Estimates that the total percentage(s) of

recovered material for EPA Designated Items

to be used in the products and services to be

provided under the terms and specifications

set forth in this solicitation shall be as

follows:

Item Estimated percentage

of recovered material*

lllllllll lllllllll

lllllllll lllllllll

*In addition, for paper products, include the

percentage of postconsumer material.

(2) Estimates that the total percentage(s) of

recovered material for Agency Designated

Items to be used in the products and services

to be provided under the terms and

specifications set forth in this solicitation

shall be as follows:

Item

Percentage

of recoverd

material content utilized*

Total dollar

amount of of

item used

lllll lllll $lllll

lllll lllll $lllll

lllll lllll $lllll

*In addition, for paper products, include the

percentage of postconsumer material content

utilized.

52.223–9 Certification of Percentage of

Recovered Material Content for EPA

Designated Items Used in Performance of

the Contract.

As prescribed in 23.405(c), insert the

following clause:

CERTIFICATION OF PERCENTAGE OF

RECOVERED MATERIAL CONTENT FOR

EPA DESIGNATED ITEMS USED IN

PERFORMANCE OF THE CONTRACT (MAY

1995)

(a) As required under Section 6962 of the

Solid Waste Disposal Act, an officer or

employee of the Contractor shall execute the

following certification annually as required

in paragraph (b) of this clause:

CERTIFICATION

I, llllll (name of certifier), am an

officer or employee responsible for the

performance of this contract and hereby

certify that the following minimum recovered

material content for EPA Designated Items

was actually used in the performance of this

contract during the preceding Government

fiscal year (October 1-September 30, lll ):

Item

Percentage of

recovered material content

utilized*

Total dollar

amount of

item used

lllll lllll $lllll

lllll lllll $lllll

lllll lllll $lllll

*In addition, for paper products, include the

percentage of postconsumer material content

utilized.

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 shall submit this

certification annually to llll * llll

by November 1, for the previous Government

fiscal year (October 1 through September 30).

*To be completed in accordance with

agency procedures.

(End of clause)

52.223–10 Waste Reduction Program.

As prescribed in 23.706, insert the

following clause:

WASTE REDUCTION PROGRAM (MAY

1995)

(a) Definition. Waste reduction, as used in

this clause, means preventing or decreasing

the amount of waste being generated through

waste prevention, recycling, or purchasing

recycled and environmentally preferable

products.

(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
28500 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

operations and facilities covered by this

contract. Any such program shall comply

with applicable Federal, state, and local

requirements.

(End of clause)

[FR Doc. 95–13256 Filed 5–30–95; 8:45 am]

BILLING CODE 6820–EPD–M

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 23 and 52

[FAC 90–27, FAR Case 93–307, Item III]

RIN 9000–AG42

Federal Acquisition Regulation; Ozone

Executive Order

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule with request for

comment.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed to an interim rule which amends

the Federal Acquisition Regulation

(FAR) to provide policy for the

acquisition of items that contain, use, or

are manufactured with ozone-depleting

substances. This regulatory action was

not subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993.

DATES: Effective Date: May 31, 1995.

Comment Date: Comments should be

submitted to the FAR Secretariat at the

address shown below on or before July

31, 1995 to be considered in the

formulation of a final rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (VRS), 18th & F Streets, NW.,

Room 4035, Attn: Ms. Beverly Fayson,

Washington, DC 20405.

Please cite FAC 90–27, FAR case 93–

307 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT: Mr.

Ralph DeStefano at (202) 501–1758 in

reference to this FAR case. For general

information, contact the FAR

Secretariat, Room 4037, GS Building,

Washington, DC 20405 (202) 501–4755.

Please cite FAC 90–27, FAR case 93–

307.

SUPPLEMENTARY INFORMATION:

A. Background

The Environmental Protection Agency

(EPA) promulgated 40 CFR Part 82,

Subpart D (rule) to satisfy EPA’s

obligation under Section 613, Title VI of

the Clean Air Act Amendments of 1990.

The EPA rule requires each department,

agency, and instrumentality of the

United States to conform its

procurement regulations to the policies

and requirements of Title VI of the

Clean Air Act and to maximize the

substitution of safe alternatives for

ozone-depleting substances as identified

under Section 612 of the Act. The EPA

rule also requires each department,

agency, and instrumentality of the

United States to certify to OMB, within

twelve months of the final publication

of the rule, that its procurement

regulations have been modified in

accordance with the rule. The EPA rule

complements Executive Order 12843,

Procurement Requirements and Policies

for Federal Agencies for OzoneDepleting Substances (58 FR 21881,

April 23, 1993). Both the Executive

Order and the EPA rule require that new

contracts provide that any acquired

products containing or manufactured

with class I or class II ozone-depleting

substances, or containers of class I or

class II ozone-depleting substances, be

labeled in accordance with Section 611

of the 1990 amendments to the Clean

Air Act.

This interim FAR rule implements the

requirements of Executive Order 12843

and 40 CFR Part 82. The rule contains

two clauses; one clause requires

contractors to label products containing

ozone-depleting substances, and the

other clause requires contractors to

comply with Sections 608 and 609 of

the Clean Air Act (42 U.S.C. 7671g and

7671h) as each or both apply to the

contract. 42 U.S.C. 7671g addresses a

national recycling and emission

reduction program, and 42 U.S.C. 7671h

addresses servicing of motor vehicle air

conditioners.

B. Regulatory Flexibility Act

This interim rule is not expected to

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 Clean Air Act requirements

are already applicable to companies in

industries supplying goods and services

made with or containing ozonedepleting substances. An Initial

Regulatory Flexibility Analysis has,

therefore, not been performed.

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 90–27, FAR Case 93–

307), 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

collection of information from offerors,

contractors, or members of the public

which require the approval of OMB

under 44 U.S.C. 3501, et seq.

D. Determination To Issue an Interim

Rule

A determination has been made under

the authority of the Secretary of Defense

(DOD), the Administrator of General

Services (GSA), and the Administrator

of the National Aeronautics and Space

Administration (NASA) that compelling

reasons exist to promulgate this interim

rule without prior opportunity for

public comment. This action is

necessary because this rule implements

Executive Order 12843, which required

FAR revisions by October 18, 1993, and

42 CFR Part 82, which required agency

acquisition regulation revisions by

October 24, 1994. Further, 42 CFR 82.84

states that, for agencies subject to the

FAR (48 CFR Chapter 1), amendment of

the FAR consistent with 42 CFR 82.84

shall satisfy, for those agencies, the

requirement of 42 CFR 82.84 to revise

agency acquisition regulations.

However, pursuant to Public Law 98–

577 and FAR 1.501, public comments

received in response to this interim rule

will be considered in the formation of

a final rule.

List of Subjects in 48 CFR Parts 23 and

52

Government procurement.

Dated: May 24, 1995.

C. Allen Olson,

Director, Office of Federal Acquisition Policy.

Therefore, 48 CFR Parts 23 and 52 are

amended as set forth below:

1. The authority citation for 48 CFR

Parts 23 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 23—ENVIRONMENT,

CONSERVATION, OCCUPATIONAL

SAFETY, AND DRUG-FREE

WORKPLACE

2. Subpart 23.8 is added to read as

follows: