63040 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 

conditions based on lack of SAFETY 

Act designation (or certification); or 

(ii) At the sole option of the 

Government, terminate this contract for 

the convenience of the Government in 

place of an equitable adjustment. 

(3) A failure of the parties to agree on 

the equitable adjustment will be 

considered to be a dispute in 

accordance with the ‘‘Disputes’’ clause 

of this contract. 

(4) Unless first terminated, the 

Contractor shall continue contract 

performance during establishment of 

any equitable adjustment. 

(End of clause) 

[FR Doc. 07–5477 Filed 11–6–07; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 4, 7, 11, 12, 13, 23, 42, 

45, and 52 

[FAC 2005–21; FAR Case 2004–032; Item 

II; Docket 2006–020; Sequence 13] 

RIN 9000–AK65 

Federal Acquisition Regulation; FAR 

Case 2004–032, Biobased Products 

Preference Program 

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 on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to implement 7 U.S.C. 

8102, as enacted by section 9002 of the 

Farm Security and Rural Investment Act 

of 2002 (FSRIA) (Pub. L. 107–171), and 

amended by sections 205 and 943 of the 

Energy Policy Act of 2005 (Pub. L. 109–

58). Entitled ‘‘Federal Procurement of 

Biobased Products,’’ 7 U.S.C. 8102 

requires that a procurement preference 

be afforded biobased products within 

items designated by the Secretary of 

Agriculture. 

DATES: Effective Date: December 7, 2007. 

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 2005–21, FAR case 

2004–032. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The United States Department of 

Agriculture (USDA) published 

regulations at 7 CFR 2902: 70 FR 1792, 

January 11, 2005; 71 FR 13686, March 

16, 2006; 71 FR 42572, July 27, 2006; 

and 71 FR 67031, November 20, 2006. 

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

71 FR 77360, December 26, 2006. The 

comment period closed on February 26, 

2007. Six respondents submitted 

comments on the proposed rule. The 

comments are available at http:// 

www.regulations.gov. A discussion of 

the comments and the changes made to 

the rule are provided below. 

Public Comments 

Provide coverage for products that 

use biobased products. 

Comment: One respondent 

recommends that the FAR should 

include a preference for products that 

use biobased products. The example 

proffered was diesel engine generator 

sets that perform with biobased fuels. 

Response: Extending coverage as 

suggested would exceed the 

congressional mandate, codified at 7 

U.S.C. 8102, to procure designated 

biobased items. The comment is 

therefore beyond the scope of this case. 

It applies to the scope of the biobased 

product program, which was established 

by Congress. 

Interface between the proposed 

contract clause and the order of 

precedence clause. 

Comment: One respondent expresses 

concern with the interface between the 

contract clause and the order of 

precedence clause (FAR 52.215–8). The 

subject proposed rule includes a 

requirement to use a contract clause, 

specifically FAR 52.223–XX (now FAR 

52.223–2), to make maximum use of 

biobased products in contracts for 

services, rather than the normal needs 

analysis and specification process 

embodied in Part 11, Describing Agency 

Needs. The subject clause is proposed to 

go into all service contracts (as well as 

construction), unless the contract will 

not involve the use of USDA-designated 

items. The respondent believes this 

unusual approach to describing 

contractual requirements is 

inappropriate in contracts for services 

because it creates a potential ambiguity. 

The respondent is concerned that in the 

order of precedence clause, contract 

clauses take precedence over 

specifications. As stated by the 

respondent, ‘‘It is not clear that the 

exemption in the clause regarding 

‘meeting contract performance 

requirements’ in paragraph (a)(2) 

applies to named products such as those 

on qualified product lists (QPLs), 

because of the order of precedence 

clause, 52.215–8, that already goes into 

all negotiated contracts. ’’ The 

respondent is concerned that, according 

to this rule of interpretation, the clause 

requirement to use a designated 

biobased hydraulic fluid or lubricant, 

for example, might be required over a 

QPL or other contractually specified 

product. This is a matter of concern to 

the respondent when acquiring services 

in support of complex systems, 

engineering services, and other 

contracts for services when multi-tiered 

subcontracting is involved. 

The respondent suggests two 

alternatives—

• Include the requirement for 

biobased products in FAR Part 11 rather 

than in a contract clause; or 

• Exempt products on QPLs. 

Response: Review of the proposed 

contract clause and FAR 52.215–8 

reveals that the two clauses can be 

harmonized in a manner that furthers 

the Congressional objective when read 

together. In accordance with the 

proposed contract clause and the 

provisions of 7 U.S.C. 8102, any entity 

contracting with any Federal agency is 

required to use designated biobased 

items (absent one of the statutory 

exemptions) in performance of the 

contract. As mandated in 7 U.S.C. 

8102(d), Federal agencies have one year 

after designation of a product to modify 

specifications which they have the 

responsibility for drafting or reviewing, 

in order to ensure that such 

specifications require the use of 

biobased products unless an exemption 

applies. The proposed alternatives are 

addressed as follows: 

• Put the requirement in Part 11. 

Regardless of where the requirement is 

incorporated into the FAR, the 

requirement must be incorporated into 

the contract to bind a contractor. The 

statute mandates: ‘‘Except as provided 

in subsection (c), each procuring agency 

shall comply with the requirements set 

forth in this section and any regulations 

issued under this section...’’ (7 U.S.C. 

8102(a)). ‘‘Procuring agency’’ is defined 

in 7 U.S.C. 8101(4) as—

—Any Federal agency that is using 

Federal funds for procurement; or 

—Any person contracting with any 

Federal agency with respect to work 

performed under the contract. 

To implement 7 U.S.C. 8102, a 

contract clause is required. Absent a 

contract clause, the contractor is not 

bound to follow the mandates of 7 

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Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 63041 

U.S.C. 8102. For a performance-based 

contract, there may be no specifications. 

• Exemption for Products on QPLs. 

The exemptions are listed in the 

proposed and final rules at FAR 

23.404(b), 23.405(b), and in the clause at 

52.223–2(a). There is an exemption that 

covers situations in which the product 

fails to meet performance requirements. 

If there is a qualification requirement 

applicable to an acquisition, it will be 

unknown whether a product meets 

performance requirements until it has 

been evaluated for addition to the QPL. 

Either the product will meet the 

requirements and be added to the QPL, 

or the product will not meet the 

requirements, and need not be 

purchased. In any case, the QPL will 

control until the product is tested. 

Federal agencies should, however, 

expedite the qualification process. 

Congress has directed Federal agencies 

to revise specifications which they are 

responsible for drafting or reviewing 

within one year after the date of 

publication of the guidelines on 

designated products. Therefore, such 

exclusion for all products on QPLs 

would be inconsistent with 7 U.S.C. 

8102(d). 

Include a categorical exemption for 

spacecraft or combat systems in the 

clause. 

Comment: One respondent expressed 

concern that ‘‘...fabricators and 

operators working under large mission 

support services contracts, especially at 

the component subcontract level, might 

not be aware that spacecraft are exempt 

from some biobased requirements 

unless that specific exception is added 

to paragraph (a) of the clause$.’’

Response: The USDA designation of 

some items (e.g., mobile equipment 

hydraulic fluids, diesel fuel additives, 

and penetrating lubricants, see 7 CFR 

2902.10 et seq.) provides exemption 

from the preferred procurement 

requirement for the application of the 

designated item to one or both of the 

following: 

(i) Spacecraft system and launch 

support equipment. 

(ii) Military equipment: Product or 

system designed or procured for combat 

or combat-related missions. 

These exemptions were initiated in 

response to public comments on the 

USDA proposed rule designating the 

first 6 biobased items for Federal 

procurement (70 FR 38612, July 5, 2005 

and 71 FR 13685, March 16, 2006). 

USDA believed that the situations 

described were of sufficient concern 

that it was appropriate to provide 

specific exemptions for certain 

designated items when used in military 

equipment in combat or combat-related 

missions and spacecraft and their 

launch support equipment where 

failures could have catastrophic 

consequences. 

The Councils have included these 

exemptions with the other exemptions 

at FAR 23.404(b) and in the clause at 

FAR 52.223–2, because these 

exemptions may impact more than just 

one agency. The clause prescription has 

not been modified, because an 

exemption may apply to one USDAdesignated item to be used in the 

performance of the contract, but not 

other USDA-designated items, or even 

the same item with a different 

application. 

Inconsistent with performance-based 

service contracting policy. 

Comment: One respondent comments 

that the proposed contract clause 

approach is unnecessary and 

inconsistent with performance-based 

service contracting policy. 

Response: Requiring a preference for 

biobased products does not impinge 

upon a contractor’s discretion of 

determining work processes. Rather, 

once a contractor delineates a process, 

the contract clause only requires that if 

the process selected by the contractor 

involves the use of USDA-designated 

products, the contractor shall use 

biobased products, absent an applicable 

exception. The contractor may select 

another process that does not involve 

the use of any USDA-designated 

products. 

Limit the use of the clause to 

contracts for commercial services with 

an estimated value in excess of 

$100,000. 

Comment: One respondent 

recommends that the purpose of the 

new clause can still be achieved if the 

prescription were not as inclusive. 

Having a narrower prescription would 

balance the needs of USDA with the 

requirements of the rest of the 

procurement community. The 

respondent recommends limiting the 

use of the clause to contracts for 

commercial type services with an 

estimated value above $100,000. 

Response: Such action would be 

inconsistent with 7 U.S.C. 8102(a). That 

statutory provision requires compliance 

where the purchase price of the item 

exceeds $10,000 or ‘‘where the quantity 

of such items or of functionally 

equivalent items purchased or acquired 

in the course of the preceding fiscal year 

was $10,000 or more.’’

Delete coverage for micro-purchases. 

Comment: One respondent suggests 

deletion of coverage for micro-purchases 

at FAR 13.201(f). Justification for this 

recommendation is to enhance the 

simplicity of awarding micro-purchases, 

reduce the burden on agencies for 

training individuals executing such 

purchases, and the decreased time for 

processing associated paperwork. 

Response: The requirements of 7 

U.S.C. 8102 are specifically applicable 

to any purchase once the statutory 

threshold has been met (i.e., the 

quantity of such items purchased by the 

agency the preceding year was $10,000 

or more). 

Continue to meet contract 

performance requirements. 

Comment: One respondent suggests a 

change to proposed FAR clause 52.223–

XX (now 52.223–2). The respondent 

suggests that (a)(2) of the proposed 

clause be changed from ‘‘meeting 

contract performance requirements; or’’

to ‘‘and continue to meet contract 

performance requirements; or.’’

Response: Absent a change in 

specification, a product that meets 

contract specifications at time of award 

will continue to meet such 

specifications subsequent to contract 

award. Therefore, no change to the 

proposed clause is required. 

Include the certification in ORCA. 

Comment: Include the certification in 

Online Representations and 

Certifications Application (ORCA). 

Response: The Councils agree with 

this comment and have added the FAR 

clause 52.223–1 to the list of clauses at 

FAR 4.1202. 

Objection to requirement for 

minimum biobased contents for 

lubricants. 

Comment: One respondent objects ‘‘to 

the USDA’s proposal requiring 

minimum biobased contents in order for 

lubricants to qualify for Federal agency 

procurement preference.’’ A variety of 

reasons are provided, including cost and 

performance. 

Response: With respect to the 

comments involving cost or 

performance, Federal agencies are not 

required to procure such products if the 

product cannot be procured at a 

reasonable price or it does not meet 

requirements. The remaining comments 

relating to USDA’s designation of 

products are beyond the scope of this 

case and need to be directed to the 

USDA. 

Project officers will need to be 

trained. 

Comment: One respondent comments 

that contracting officer technical 

representatives (project officers) will 

need to be trained. 

Response: Program training will need 

to be conducted on an individual 

Federal agency basis, since preference 

programs are Federal agency specific. 

Therefore, training is most appropriately 

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63042 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 

addressed in conjunction with each 

Federal agency’s procurement program. 

Life-cycle cost information will be 

prohibitive for small businesses. 

Comment: One respondent states that 

Life-cycle cost information will be 

prohibitive for many small businesses 

and should not be routinely requested 

from vendors since price, availability 

and functionality are generally the most 

important factors in most acquisition. 

Response: The rule does not require 

routine collection of this data from 

vendors. It is permissive (‘‘may 

request’’), and is necessary to 

implement 7 CFR 2902.8, which 

requires that manufacturers and vendors 

must provide information on life cycle 

costs and environmental and health 

benefit tests, when requested by Federal 

agencies. 

Need for Budget Object Code. 

Comment: The respondent also 

comments that it will be difficult for 

agencies to capture data regarding 

affected procurements and a Budget 

Object Code is needed. 

Response:This comment is outside the 

scope of this case. 

Other Revisions to the Proposed Rule. 

• Definitions. The proposed rule cited 

the statutory definition of ‘‘Biobased 

product’’ (7 U.S.C. 8101(2)), however, 

the definition conflicts with the intent 

of the rule that biobased products from 

certain designated countries must be 

treated by procuring agencies as eligible 

for the procurement preference under 

FSRIA. The revised definition deletes 

the statutory reference and encompasses 

biobased products composed of 

renewable agricultural materials or 

forestry materials from ‘‘designated 

countries,’’ as defined in FAR 25.003. 

Therefore, provided that those products 

otherwise meet all requirements for 

participation in the preference program, 

they will be entitled to receive the 

procurement preference. 

• Certification. The Councils 

concluded that the certification in the 

proposed rule was unnecessarily 

burdensome, requiring submission of a 

separate signed certification. This 

certification was erroneously patterned 

after FAR clause 52.223–9, Estimate of 

Recovered Material Content for EPADesignated Products, Alternate I, which 

is a requirement for a certification at the 

end of the contract performance. The 

more appropriate model is the preaward Recovered Material Certification 

at FAR 52.223–4, in which the offeror 

provides certification by signing the 

offer. In this way, the estimated 

paperwork burden associated with the 

proposed rule is eliminated. In addition, 

the wording ‘‘other than biobased 

products that are not purchased by the 

offeror as a direct result of this contract’’

has been included in the certification to 

implement 7 CFR 2902.3(c), as amended 

by the USDA interim final rule of 71 FR 

42572, July 27, 2006, which clarified the 

USDA intent to exclude from the 

preferred procurement program 

biobased products that are merely 

incidental to Federal funding. This 

clarification was necessary after the 

definition of ‘‘procuring agency’’ was 

expanded to include contractors. 

• Duplication of exemptions. The 

proposed rule duplicated the statement 

of exemptions at FAR 23.404(b) and 

23.405(b). The Councils provide a crossreference at FAR 23.405(b) to 23.404(b), 

rather than a restatement of the 

exemptions. 

• Title of 52.223–9. The Councils 

corrected the title of FAR 52.223–9 in 

the clause prescription at FAR 23.406(d) 

in the final rule. 

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 Department of Defense, the 

General Services Administration, and 

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 it 

implements in the FAR the USDA rule 

at 7 CFR Part 2902. Furthermore, USDA 

has certified that its designation of 

biobased items will not have a 

significant economic impact on a 

substantial number of small entities (71 

FR 13685 at 13704, March 16, 2006). In 

support of this certification, USDA 

stated in the Federal Register that it 

anticipates that this program will affect 

entities, both large and small, that 

manufacture or sell biobased products. 

For example, the designation of items 

for preferred procurement will provide 

additional opportunities for businesses 

to manufacture and sell biobased 

products to Federal agencies and their 

contractors. Similar opportunities will 

be provided for entities that supply 

biobased materials to manufacturers. 

Conversely, the biobased procurement 

program may decrease opportunities for 

businesses that manufacture or sell nonbiobased products or provide 

components for the manufacturing of 

such products. However, this rule will 

not affect existing purchase orders and 

it will not preclude procuring agencies 

from continuing to purchase nonbiobased items under certain conditions 

relating to the availability, performance, 

or cost of biobased items. This rule will 

also not preclude businesses from 

modifying their product lines to meet 

new specifications or solicitation 

requirements for these products 

containing biobased materials. Because 

biobased products represent a small 

emerging market, only a small 

percentage of all manufacturers, large or 

small, are expected to develop and 

market biobased products. Thus, the 

number of small businesses affected is 

not expected to be substantial. The only 

comment received with regard to impact 

of the proposed rule on small business 

is addressed in the response to public 

comments. 

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. The estimated burden of 18,000 

hours per year associated with the 

proposed rule provision at FAR 52.223–

1, has been eliminated in the final rule. 

List of Subjects in 48 CFR Parts 2, 4, 7, 

11, 12, 13, 23, 42, 45, and 52 

Government procurement. 

Dated: October 31, 2007. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 2, 4, 7, 11, 12, 13, 

23, 42, 45, and 52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 4, 7, 11, 12, 13, 23, 42, 45, and 

52 continues to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

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

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Amend section 2.101 in paragraph 

(b)(2) by adding, in alphabetical order, 

the definition ‘‘Biobased product’’ to 

read as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Biobased product means a product 

determined by the U.S. Department of 

Agriculture to be a commercial or 

industrial product (other than food or 

feed) that is composed, in whole or in 

significant part, of biological products, 

including renewable domestic 

agricultural materials (including plant, 

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animal, and marine materials) or 

forestry materials. 

* * * * * 

PART 4—ADMINISTRATIVE MATTERS 

■ 3. Amend section 4.1202 by 

redesignating paragraphs (r) through (z) 

as (s) through (aa) respectively, and 

adding a new paragraph (r) to read as 

follows: 

4.1202 Solicitation provision and contract 

clause. 

* * * * * 

(r) 52.223–1, Biobased Product 

Certification. 

* * * * * 

PART 7—ACQUISITION PLANNING 

■ 4. Amend section 7.103 by revising 

paragraph (n)(2) to read as follows: 

7.103 Agency-head responsibilities. 

* * * * * 

(n) * * * 

(2) Comply with the policy in 

11.002(d) regarding procurement of 

biobased products, products containing 

recovered materials, and 

environmentally preferable and energyefficient products and services. 

* * * * * 

PART 11—DESCRIBING AGENCY 

NEEDS 

■ 5. Amend section 11.002 by revising 

paragraph (d) to read as follows: 

11.002 Policy. 

* * * * * 

(d)(1) When agencies acquire products 

and services, various statutes and 

executive orders (identified in Part 23) 

require consideration of—

(i) Energy-efficient products and 

services (Subpart 23.2); 

(ii) Products and services that utilize 

renewable energy technologies (Subpart 

23.2); 

(iii) Products containing energyefficient standby power devices 

(Subpart 23.2); 

(iv) Products containing recovered 

materials (Subpart 23.4); 

(v) Biobased products (Subpart 23.4); 

and 

(vi) Environmentally preferable 

products and services (Subpart 23.7). 

(2) Executive agencies shall consider 

maximum practicable use of products 

and services listed in paragraph (d)(1) of 

this section when—

(i) Developing, reviewing, or revising 

Federal and military specifications, 

product descriptions (including 

commercial item descriptions) and 

standards; 

(ii) Describing Government 

requirements for products and services; 

and 

(iii) Developing source-selection 

factors. 

* * * * * 

11.101 [Amended] 

■ 6. Amend section 11.101 by removing 

paragraph (b) and redesignating 

paragraph (c) as (b). 

■ 7. Amend section 11.302 by revising 

paragraph (c) to read as follows: 

11.302 Policy. 

* * * * * 

(c)(1) When the contracting officer 

needs additional information to 

determine whether supplies meet 

minimum recovered material or 

biobased standards stated in the 

solicitation, the contracting officer may 

require offerors to submit additional 

information on the recycled or biobased 

content or related standards. The 

request for the information must be 

included in the solicitation. When 

acquiring commercial items, limit the 

information to the maximum extent 

practicable to that available under 

normal commercial practices. 

(2) For biobased products, the 

contracting officer may require vendors 

to provide information on life cycle 

costs and environmental and health 

benefits in accordance with 7 CFR 

2902.8. 

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 8. Amend section 12.301 by revising 

paragraph (e)(3) to read as follows: 

12.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

* * * * * 

(e) * * * 

(3) The contracting officer may use 

the provisions and clauses contained in 

Part 23 regarding the use of recovered 

material and biobased products when 

appropriate for the item being acquired. 

* * * * * 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 9. Amend section 13.201 by revising 

paragraph (f) to read as follows: 

13.201 General. 

* * * * * 

(f) The procurement requirements in 

Subparts 23.2, 23.4, and 23.7 apply to 

purchases at or below the micropurchase threshold. 

* * * * * 

PART 23—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

■ 10. Amend section 23.000 by revising 

paragraph (d) to read as follows: 

23.000 Scope. 

* * * * * 

(d) Acquiring energy-efficient and 

water-efficient products and services, 

environmentally preferable products, 

products that use recovered materials, 

and biobased products; and 

* * * * * 

■ 11. Revise Subpart 23.4 to read as 

follows: 

Subpart 23.4—Use of Recovered 

Materials and Biobased Products 

Sec. 

23.400 Scope of subpart. 

23.401 Definitions. 

23.402 Authorities. 

23.403 Policy. 

23.404 Agency affirmative procurement 

programs. 

23.405 Procedures. 

23.406 Solicitation provisions and contract 

clauses. 

23.400 Scope of subpart. 

(a) The procedures in this subpart 

apply to all agency acquisitions of an 

Environmental Protection Agency (EPA) 

or United States Department of 

Agriculture (USDA)-designated item, 

if—

(1) The price of the designated item 

exceeds $10,000; or 

(2) The aggregate amount paid for 

designated items, or for functionally 

equivalent designated items, in the 

preceding fiscal year was $10,000 or 

more. 

(b) While micro-purchases are 

included in determining the aggregate 

amount paid under paragraph (a)(2) of 

this section, it is not recommended that 

an agency track micro-purchases 

when—

(1) The agency anticipates the 

aggregate amount paid will exceed 

$10,000; or 

(2) The agency intends to establish or 

continue an affirmative procurement 

program in the following fiscal year. 

23.401 Definitions. 

As used in this subpart—

(a) EPA-designated item means a 

product that is or can be made with 

recovered material—

(1) That is listed by EPA in a 

procurement guideline (40 CFR part 

247); and 

(2) For which EPA has provided 

purchasing recommendations in a 

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63044 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 

related Recovered Materials Advisory 

Notice (RMAN). 

(b) USDA-designated item means a 

generic grouping of products that are or 

can be made with biobased materials—

(1) That is listed by USDA in a 

procurement guideline (7 CFR part 

2902, subpart B); and 

(2) For which USDA has provided 

purchasing recommendations. 

23.402 Authorities. 

(a) The Resource Conservation and 

Recovery Act of 1976 (RCRA), 42 U.S.C. 

6962. 

(b) The Farm Security and Rural 

Investment Act of 2002 (FSRIA), 7 

U.S.C. 8102. 

(c) Executive Order 13101 of 

September 14, 1998, Greening the 

Government Through Waste Prevention, 

Recycling, and Federal Acquisition. 

(d) The Energy Policy Act of 2005, 

Public Law 109–58. 

23.403 Policy. 

Government policy on the use of 

products containing recovered materials 

and biobased products considers cost, 

availability of competition, and 

performance. Agencies shall assure the 

use of products containing recovered 

materials and biobased products to the 

maximum extent practicable without 

jeopardizing the intended use of the 

product while maintaining a satisfactory 

level of competition at a reasonable 

price. Such products shall meet the 

reasonable performance standards of the 

agency and be acquired competitively, 

in a cost-effective manner. Except as 

provided at FAR 23.404(b), virgin 

material shall not be required by the 

solicitation (see 11.302). 

23.404 Agency affirmative procurement 

programs. 

(a) An agency must establish an 

affirmative procurement program for 

EPA and USDA-designated items if the 

agency’s purchases of designated items 

exceed the threshold set forth in 23.400. 

(1) Agencies have a period of 1 year 

to revise their procurement program(s) 

after the designation of any new item by 

EPA or USDA. 

(2) Technical or requirements 

personnel and procurement personnel 

are responsible for the preparation, 

implementation, and monitoring of 

affirmative procurement programs. 

(3) Agency affirmative procurement 

programs must include—

(i) A recovered materials and biobased 

products preference program; 

(ii) An agency promotion program; 

(iii) For EPA-designated items only, a 

program for requiring reasonable 

estimates, certification, and verification 

of recovered material used in the 

performance of contracts. Both the 

recovered material content and biobased 

programs require preaward certification 

that the products meet EPA or USDA 

recommendations. A second 

certification is required at contract 

completion for recovered material 

content; and 

(iv) Annual review and monitoring of 

the effectiveness of the program. 

(b) Exemptions. (1) Agency 

affirmative procurement programs must 

require that 100 percent of purchases of 

EPA or USDA-designated items contain 

recovered material or biobased content, 

respectively, unless the item cannot be 

acquired—

(i) Competitively within a reasonable 

time frame; 

(ii) Meeting reasonable performance 

standards; or 

(iii) At a reasonable price. 

(2) EPA and USDA may provide 

categorical exemptions for items that 

they designate, when procured for a 

specific purpose. For example, some 

USDA-designated items such as mobile 

equipment hydraulic fluids, diesel fuel 

additives, and penetrating lubricants 

(see 7 CFR 2902.10 et seq.) are excluded 

from the preferred procurement 

requirement for the application of the 

USDA-designated item to one or both of 

the following: 

(i) Spacecraft system and launch 

support equipment. 

(ii) Military equipment, i.e., a product 

or system designed or procured for 

combat or combat-related missions. 

(c) Agency affirmative procurement 

programs must provide guidance for 

purchases of EPA-designated items at or 

below the micro-purchase threshold. 

(d) Agencies may use their own 

specifications or commercial product 

descriptions when procuring products 

containing recovered materials or 

biobased products. When using either, 

the contract should specify—

(1) For products containing recovered 

materials, that the product is composed 

of the—

(i) Highest percent of recovered 

materials practicable; or 

(ii) Minimum content standards in 

accordance with EPA’s Recovered 

Materials Advisory Notices; and 

(2) For biobased products, that the 

product is composed of—

(i) The highest percentage of biobased 

material practicable; or 

(ii) USDA’s recommended minimum 

contents standards. 

(e) Agencies shall treat as eligible for 

the preference for biobased products, 

products from ‘‘designated countries,’’

as defined in 25.003, provided that 

those products—

(1) Meet the criteria for the definition 

of biobased product, except that the 

products need not meet the requirement 

that renewable agricultural materials 

(including plant, animal, and marine 

materials) or forestry materials in such 

product must be domestic; and 

(2) Otherwise meet all requirements 

for participation in the preference 

program. 

23.405 Procedures. 

(a) Designated items and procurement 

guidelines. 

(1) Recovered Materials. Contracting 

officers should refer to EPA’s list of 

EPA-designated items (available via the 

Internet at http://www.epa.gov/cpg/) 

and to their agencies’ affirmative 

procurement program when purchasing 

products that contain recovered 

material, or services that could include 

the use of products that contain 

recovered material. 

(2) Biobased products. Contracting 

officers should refer to USDA’s list of 

USDA-designated items (available 

through the Internet at http:// 

www.usda.gov/biopreferred) and to their 

agencies affirmative procurement 

program when purchasing supplies that 

contain biobased material or when 

purchasing services that could include 

supplies that contain biobased material. 

(b) Procurement exemptions. 

(1) Once an item has been designated 

by either EPA or USDA, agencies shall 

purchase conforming products unless an 

exemption applies (see 23.404(b)). 

(2) When an exemption is used for an 

EPA-designated item or the 

procurement of a product containing 

recovered material does not meet or 

exceed the EPA recovered material 

content guidelines, the contracting 

officer shall place a written justification 

in the contract file. 

(c) Program priorities. When both the 

USDA-designated item and the EPAdesignated item will be used for the 

same purposes, and both meet the 

agency’s needs, the agency shall 

purchase the EPA-designated item. 

23.406 Solicitation provisions and 

contract clauses. 

(a) Insert the provision at 52.223–1, 

Biobased Product Certification, in 

solicitations that—

(1) Require the delivery or specify the 

use of USDA-designated items; or 

(2) Include the clause at 52.223–2. 

(b) Insert the clause at 52.223–2, 

Affirmative Procurement of Biobased 

Products Under Service and 

Construction Contracts, in service or 

construction solicitations and contracts 

unless the contract will not involve the 

use of USDA-designated items at http:// 

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Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 63045 

www.usda.gov/biopreferred or 7 CFR 

Part 2902. 

(c) Insert the provision at 52.223–4, 

Recovered Material Certification, in 

solicitations that are for, or specify the 

use of, EPA-designated items. 

(d) Insert the clause at 52.223–9, 

Estimate of Percentage of Recovered 

Material Content for EPA-Designated 

Products, in solicitations and contracts 

exceeding $100,000 that are for, or 

specify the use of, EPA-designated 

products containing recovered 

materials. If technical personnel advise 

that estimates can be verified, use the 

clause with its Alternate I. 

23.701 [Removed] 

■ 12. Remove and reserve section 

23.701. 

■ 13. Amend section 23.702 by adding 

paragraph (g) to read as follows: 

23.702 Authorities. 

* * * * * 

(g) Farm Security and Rural 

Investment Act of 2002 (FSRIA) (7 

U.S.C. 8102). 

■ 14. Amend section 23.703 by revising 

paragraph (b)(7); and adding paragraph 

(b)(8) to read as follows: 

23.703 Policy. 

* * * * * 

(b) * * * 

(7) Promote the use of biobased 

products. 

(8) Purchase only plastic ring carriers 

that are degradable (7 USC 8102(c)(1), 

40 CFR part 238). 

PART 42—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

■ 15. Amend section 42.302 by revising 

paragraph (a)(68)(ii) to read as follows: 

42.302 Contract administration functions. 

(a) * * * 

(68) * * * 

(ii) Monitoring contractor compliance 

with specifications or other contractual 

requirements requiring the delivery or 

use of environmentally preferable 

products, energy-efficient products, 

products containing recovered 

materials, and biobased products. This 

must occur as part of the quality 

assurance procedures set forth in Part 

46; and 

* * * * * 

PART 45—GOVERNMENT PROPERTY 

45.103 [Amended] 

■ 16. Amend section 45.103 by 

removing from paragraph (a)(1) 

‘‘11.101(c)’’ and adding ‘‘11.101(b)’’ in 

its place. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 17. Add sections 52.223–1 and 

52.223–2 to read as follows: 

52.223–1 Biobased Product Certification. 

As prescribed in 23.406(a), insert the 

following provision: 

BIOBASED PRODUCT CERTIFICATION 

[December 7, 2007] 

As required by the Farm Security and 

Rural Investment Act of 2002 and the 

Energy Policy Act of 2005 (7 U.S.C. 

8102(c)(3)), the offeror certifies, by 

signing this offer, that biobased 

products (within categories of products 

listed by the United States Department 

of Agriculture in 7 CFR part 2902, 

subpart B) to be used or delivered in the 

performance of the contract, other than 

biobased products that are not 

purchased by the offeror as a direct 

result of this contract, will comply with 

the applicable specifications or other 

contractual requirements. 

(End of provision) 

52.223–2 Affirmative Procurement of 

Biobased Products Under Service and 

Construction Contracts. 

As prescribed in 23.406(b), insert the 

following clause: 

AFFIRMATIVE PROCUREMENT OF 

BIOBASED PRODUCTS UNDER SERVICE 

AND CONSTRUCTION CONTRACTS 

[December 7, 2007] 

(a) In the performance of this contract, 

the contractor shall make maximum use 

of biobased products that are United 

States Department of Agriculture 

(USDA)-designated items unless—

(1) The product cannot be acquired—

(i) Competitively within a time frame 

providing for compliance with the 

contract performance schedule; 

(ii) Meeting contract performance 

requirements; or 

(iii) At a reasonable price. 

(2) The product is to be used in an 

application covered by a USDA 

categorical exemption (see 7 CFR 

2902.10 et seq.). For example, some 

USDA-designated items such as mobile 

equipment hydraulic fluids, diesel fuel 

additives, and penetrating lubricants are 

excluded from the preferred 

procurement requirement for the 

application of the USDA-designated 

item to one or both of the following: 

(i) Spacecraft system and launch 

support equipment. 

(ii) Military equipment, i.e., a product 

or system designed or procured for 

combat or combat-related missions. 

(b) Information about this requirement 

and these products is available at http:// 

www.usda.gov/biopreferred. 

(End of clause) 

52.223–4 [Amended] 

■ 18. Amend section 52.223–4 by 

removing from the prescription 

‘‘23.406(a)’’ and adding ‘‘23.406(c)’’ in 

its place. 

52.223–9 [Amended] 

■ 19. Amend section 52.223–9 by 

removing from the prescription and 

Alternate I ‘‘23.406(b)’’ and adding 

‘‘23.406(d)’’ respectively, in its place. 

[FR Doc. 07–5478 Filed 11–6–07; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 3, 12, 15, 18, 19, 27, 

33, and 52 

[FAC 2005–21; FAR Case 1999–402; Item 

III; Docket 2007–0001; Sequence 7] 

RIN 9000–AJ64 

Federal Acquisition Regulation; FAR 

Case 1999–402, FAR Part 27 Rewrite in 

Plain Language 

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 on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to clarify, streamline, 

and update text and clauses on Patents, 

Data, and Copyrights (FAR Part 27). 

DATES: Effective Date: December 7, 2007. 

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 FAR Secretariat at (202) 501–4755. 

Please cite FAC 2005–21, FAR case 

1999–402. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule is a ‘‘plain language’’

rewrite of FAR Part 27 and its associated 

clauses in Part 52. Part 27 implements 

a number of statutes and executive 

orders pertaining to patents, data, and 

copyrights. This effort focused on 

clarifying, streamlining, and updating 

the text, with the ultimate goal of 

making the policies and procedures 

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