63040 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations
conditions based on lack of SAFETY Please cite FAC 2005–21, FAR case exemption in the clause regarding
Act designation (or certification); or 2004–032. ‘meeting contract performance
(ii) At the sole option of the SUPPLEMENTARY INFORMATION: requirements’ in paragraph (a)(2)
Government, terminate this contract for applies to named products such as those
the convenience of the Government in A. Background on qualified product lists (QPLs),
place of an equitable adjustment. The United States Department of because of the order of precedence
(3) A failure of the parties to agree on Agriculture (USDA) published clause, 52.215–8, that already goes into
the equitable adjustment will be regulations at 7 CFR 2902: 70 FR 1792, all negotiated contracts. ’’ The
considered to be a dispute in January 11, 2005; 71 FR 13686, March respondent is concerned that, according
accordance with the ‘‘Disputes’’ clause 16, 2006; 71 FR 42572, July 27, 2006; to this rule of interpretation, the clause
of this contract. and 71 FR 67031, November 20, 2006. requirement to use a designated
(4) Unless first terminated, the DoD, GSA, and NASA published a biobased hydraulic fluid or lubricant,
Contractor shall continue contract proposed rule in the Federal Register at for example, might be required over a
performance during establishment of 71 FR 77360, December 26, 2006. The QPL or other contractually specified
any equitable adjustment. comment period closed on February 26, product. This is a matter of concern to
(End of clause) 2007. Six respondents submitted the respondent when acquiring services
[FR Doc. 07–5477 Filed 11–6–07; 8:45 am] comments on the proposed rule. The in support of complex systems,
BILLING CODE 6820–EP–S
comments are available at http:// engineering services, and other
www.regulations.gov. A discussion of contracts for services when multi-tiered
the comments and the changes made to subcontracting is involved.
DEPARTMENT OF DEFENSE the rule are provided below. The respondent suggests two
Public Comments alternatives—
GENERAL SERVICES • Include the requirement for
ADMINISTRATION Provide coverage for products that biobased products in FAR Part 11 rather
use biobased products. than in a contract clause; or
NATIONAL AERONAUTICS AND Comment: One respondent • Exempt products on QPLs.
SPACE ADMINISTRATION recommends that the FAR should Response: Review of the proposed
include a preference for products that contract clause and FAR 52.215–8
48 CFR Parts 2, 4, 7, 11, 12, 13, 23, 42, use biobased products. The example reveals that the two clauses can be
45, and 52 proffered was diesel engine generator harmonized in a manner that furthers
sets that perform with biobased fuels. the Congressional objective when read
[FAC 2005–21; FAR Case 2004–032; Item Response: Extending coverage as together. In accordance with the
II; Docket 2006–020; Sequence 13] suggested would exceed the proposed contract clause and the
RIN 9000–AK65 congressional mandate, codified at 7 provisions of 7 U.S.C. 8102, any entity
U.S.C. 8102, to procure designated contracting with any Federal agency is
Federal Acquisition Regulation; FAR biobased items. The comment is required to use designated biobased
Case 2004–032, Biobased Products therefore beyond the scope of this case. items (absent one of the statutory
Preference Program It applies to the scope of the biobased exemptions) in performance of the
product program, which was established contract. As mandated in 7 U.S.C.
AGENCIES: Department of Defense (DoD),
by Congress. 8102(d), Federal agencies have one year
General Services Administration (GSA),
Interface between the proposed after designation of a product to modify
and National Aeronautics and Space
contract clause and the order of specifications which they have the
precedence clause. responsibility for drafting or reviewing,
ACTION: Final rule. Comment: One respondent expresses in order to ensure that such
concern with the interface between the specifications require the use of
SUMMARY: The Civilian Agency
contract clause and the order of biobased products unless an exemption
Acquisition Council and the Defense
precedence clause (FAR 52.215–8). The applies. The proposed alternatives are
Acquisition Regulations Council
subject proposed rule includes a addressed as follows:
(Councils) have agreed on a final rule
requirement to use a contract clause, • Put the requirement in Part 11.
amending the Federal Acquisition
specifically FAR 52.223–XX (now FAR Regardless of where the requirement is
Regulation (FAR) to implement 7 U.S.C.
52.223–2), to make maximum use of incorporated into the FAR, the
8102, as enacted by section 9002 of the
biobased products in contracts for requirement must be incorporated into
Farm Security and Rural Investment Act
services, rather than the normal needs the contract to bind a contractor. The
of 2002 (FSRIA) (Pub. L. 107–171), and
analysis and specification process statute mandates: ‘‘Except as provided
amended by sections 205 and 943 of the
embodied in Part 11, Describing Agency in subsection (c), each procuring agency
Energy Policy Act of 2005 (Pub. L. 109–
Needs. The subject clause is proposed to shall comply with the requirements set
58). Entitled ‘‘Federal Procurement of
go into all service contracts (as well as forth in this section and any regulations
Biobased Products,’’ 7 U.S.C. 8102
construction), unless the contract will issued under this section…’’ (7 U.S.C.
requires that a procurement preference
not involve the use of USDA-designated 8102(a)). ‘‘Procuring agency’’ is defined
be afforded biobased products within
items. The respondent believes this in 7 U.S.C. 8101(4) as—
items designated by the Secretary of
unusual approach to describing —Any Federal agency that is using
contractual requirements is Federal funds for procurement; or
DATES: Effective Date: December 7, 2007. inappropriate in contracts for services —Any person contracting with any
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FOR FURTHER INFORMATION CONTACT: Mr. because it creates a potential ambiguity. Federal agency with respect to work
William Clark, Procurement Analyst, at The respondent is concerned that in the performed under the contract.
(202) 219–1813 for clarification of order of precedence clause, contract To implement 7 U.S.C. 8102, a
content. For information pertaining to clauses take precedence over contract clause is required. Absent a
status or publication schedules, contact specifications. As stated by the contract clause, the contractor is not
the FAR Secretariat at (202) 501–4755. respondent, ‘‘It is not clear that the 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 missions and spacecraft and their reduce the burden on agencies for
contract, there may be no specifications. launch support equipment where training individuals executing such
• Exemption for Products on QPLs. failures could have catastrophic purchases, and the decreased time for
The exemptions are listed in the consequences. processing associated paperwork.
proposed and final rules at FAR The Councils have included these Response: The requirements of 7
23.404(b), 23.405(b), and in the clause at exemptions with the other exemptions U.S.C. 8102 are specifically applicable
52.223–2(a). There is an exemption that at FAR 23.404(b) and in the clause at to any purchase once the statutory
covers situations in which the product FAR 52.223–2, because these threshold has been met (i.e., the
fails to meet performance requirements. exemptions may impact more than just quantity of such items purchased by the
If there is a qualification requirement one agency. The clause prescription has agency the preceding year was $10,000
applicable to an acquisition, it will be not been modified, because an or more).
unknown whether a product meets exemption may apply to one USDA- Continue to meet contract
performance requirements until it has designated item to be used in the performance requirements.
been evaluated for addition to the QPL. performance of the contract, but not Comment: One respondent suggests a
Either the product will meet the other USDA-designated items, or even change to proposed FAR clause 52.223–
requirements and be added to the QPL, the same item with a different XX (now 52.223–2). The respondent
or the product will not meet the application. suggests that (a)(2) of the proposed
requirements, and need not be Inconsistent with performance-based clause be changed from ‘‘meeting
purchased. In any case, the QPL will service contracting policy. contract performance requirements; or’’
control until the product is tested. Comment: One respondent comments to ‘‘and continue to meet contract
Federal agencies should, however, that the proposed contract clause performance requirements; or.’’
expedite the qualification process. approach is unnecessary and Response: Absent a change in
Congress has directed Federal agencies inconsistent with performance-based specification, a product that meets
to revise specifications which they are service contracting policy. contract specifications at time of award
responsible for drafting or reviewing Response: Requiring a preference for
will continue to meet such
within one year after the date of biobased products does not impinge
specifications subsequent to contract
publication of the guidelines on upon a contractor’s discretion of
award. Therefore, no change to the
designated products. Therefore, such determining work processes. Rather,
proposed clause is required.
exclusion for all products on QPLs once a contractor delineates a process,
Include the certification in ORCA.
would be inconsistent with 7 U.S.C. the contract clause only requires that if
Comment: Include the certification in
8102(d). the process selected by the contractor
Online Representations and
Include a categorical exemption for involves the use of USDA-designated
Certifications Application (ORCA).
spacecraft or combat systems in the products, the contractor shall use
Response: The Councils agree with
clause. biobased products, absent an applicable
Comment: One respondent expressed this comment and have added the FAR
exception. The contractor may select
concern that ‘‘…fabricators and clause 52.223–1 to the list of clauses at
another process that does not involve
operators working under large mission FAR 4.1202.
the use of any USDA-designated
support services contracts, especially at Objection to requirement for
the component subcontract level, might Limit the use of the clause to minimum biobased contents for
not be aware that spacecraft are exempt contracts for commercial services with lubricants.
from some biobased requirements an estimated value in excess of Comment: One respondent objects ‘‘to
unless that specific exception is added $100,000. the USDA’s proposal requiring
to paragraph (a) of the clause$.’’ Comment: One respondent minimum biobased contents in order for
Response: The USDA designation of recommends that the purpose of the lubricants to qualify for Federal agency
some items (e.g., mobile equipment new clause can still be achieved if the procurement preference.’’ A variety of
hydraulic fluids, diesel fuel additives, prescription were not as inclusive. reasons are provided, including cost and
and penetrating lubricants, see 7 CFR Having a narrower prescription would performance.
2902.10 et seq.) provides exemption balance the needs of USDA with the Response: With respect to the
from the preferred procurement requirements of the rest of the comments involving cost or
requirement for the application of the procurement community. The performance, Federal agencies are not
designated item to one or both of the respondent recommends limiting the required to procure such products if the
following: use of the clause to contracts for product cannot be procured at a
(i) Spacecraft system and launch commercial type services with an reasonable price or it does not meet
support equipment. estimated value above $100,000. requirements. The remaining comments
(ii) Military equipment: Product or Response: Such action would be relating to USDA’s designation of
system designed or procured for combat inconsistent with 7 U.S.C. 8102(a). That products are beyond the scope of this
or combat-related missions. statutory provision requires compliance case and need to be directed to the
These exemptions were initiated in where the purchase price of the item USDA.
response to public comments on the exceeds $10,000 or ‘‘where the quantity Project officers will need to be
USDA proposed rule designating the of such items or of functionally trained.
first 6 biobased items for Federal equivalent items purchased or acquired Comment: One respondent comments
procurement (70 FR 38612, July 5, 2005 in the course of the preceding fiscal year that contracting officer technical
and 71 FR 13685, March 16, 2006). was $10,000 or more.’’ representatives (project officers) will
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USDA believed that the situations Delete coverage for micro-purchases. need to be trained.
described were of sufficient concern Comment: One respondent suggests Response: Program training will need
that it was appropriate to provide deletion of coverage for micro-purchases to be conducted on an individual
specific exemptions for certain at FAR 13.201(f). Justification for this Federal agency basis, since preference
designated items when used in military recommendation is to enhance the programs are Federal agency specific.
equipment in combat or combat-related simplicity of awarding micro-purchases, 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 offeror as a direct result of this contract’’ from continuing to purchase non-
Federal agency’s procurement program. has been included in the certification to biobased items under certain conditions
Life-cycle cost information will be implement 7 CFR 2902.3(c), as amended relating to the availability, performance,
prohibitive for small businesses. by the USDA interim final rule of 71 FR or cost of biobased items. This rule will
Comment: One respondent states that 42572, July 27, 2006, which clarified the also not preclude businesses from
Life-cycle cost information will be USDA intent to exclude from the modifying their product lines to meet
prohibitive for many small businesses preferred procurement program new specifications or solicitation
and should not be routinely requested biobased products that are merely requirements for these products
from vendors since price, availability incidental to Federal funding. This containing biobased materials. Because
and functionality are generally the most clarification was necessary after the biobased products represent a small
important factors in most acquisition. definition of ‘‘procuring agency’’ was emerging market, only a small
Response: The rule does not require expanded to include contractors. percentage of all manufacturers, large or
routine collection of this data from • Duplication of exemptions. The small, are expected to develop and
vendors. It is permissive (‘‘may proposed rule duplicated the statement market biobased products. Thus, the
request’’), and is necessary to of exemptions at FAR 23.404(b) and number of small businesses affected is
implement 7 CFR 2902.8, which 23.405(b). The Councils provide a cross- not expected to be substantial. The only
requires that manufacturers and vendors reference at FAR 23.405(b) to 23.404(b), comment received with regard to impact
must provide information on life cycle rather than a restatement of the of the proposed rule on small business
costs and environmental and health exemptions. is addressed in the response to public
benefit tests, when requested by Federal • Title of 52.223–9. The Councils comments.
agencies. corrected the title of FAR 52.223–9 in
Need for Budget Object Code. the clause prescription at FAR 23.406(d) C. Paperwork Reduction Act
Comment: The respondent also in the final rule. The Paperwork Reduction Act does
comments that it will be difficult for This is not a significant regulatory not apply because the changes to the
agencies to capture data regarding action and, therefore, was not subject to FAR do not impose information
affected procurements and a Budget review under Section 6(b) of Executive collection requirements that require the
Object Code is needed. Order 12866, Regulatory Planning and approval of the Office of Management
Response:This comment is outside the Review, dated September 30, 1993. This and Budget under 44 U.S.C. 3501, et
scope of this case. rule is not a major rule under 5 U.S.C.
Other Revisions to the Proposed Rule. seq. The estimated burden of 18,000
804. hours per year associated with the
• Definitions. The proposed rule cited
the statutory definition of ‘‘Biobased B. Regulatory Flexibility Act proposed rule provision at FAR 52.223–
product’’ (7 U.S.C. 8101(2)), however, The Department of Defense, the 1, has been eliminated in the final rule.
the definition conflicts with the intent General Services Administration, and List of Subjects in 48 CFR Parts 2, 4, 7,
of the rule that biobased products from the National Aeronautics and Space 11, 12, 13, 23, 42, 45, and 52
certain designated countries must be Administration certify that this final
treated by procuring agencies as eligible rule will not have a significant Government procurement.
for the procurement preference under economic impact on a substantial Dated: October 31, 2007.
FSRIA. The revised definition deletes number of small entities within the Al Matera,
the statutory reference and encompasses meaning of the Regulatory Flexibility Director, Office of Acquisition Policy.
biobased products composed of Act, 5 U.S.C. 601, et seq., because it
I Therefore, DoD, GSA, and NASA
renewable agricultural materials or implements in the FAR the USDA rule
amend 48 CFR parts 2, 4, 7, 11, 12, 13,
forestry materials from ‘‘designated at 7 CFR Part 2902. Furthermore, USDA
23, 42, 45, and 52 as set forth below:
countries,’’ as defined in FAR 25.003. has certified that its designation of
I 1. The authority citation for 48 CFR
Therefore, provided that those products biobased items will not have a
parts 2, 4, 7, 11, 12, 13, 23, 42, 45, and
otherwise meet all requirements for significant economic impact on a
52 continues to read as follows:
participation in the preference program, substantial number of small entities (71
they will be entitled to receive the FR 13685 at 13704, March 16, 2006). In Authority: 40 U.S.C. 121(c); 10 U.S.C.
procurement preference. support of this certification, USDA chapter 137; and 42 U.S.C. 2473(c).
• Certification. The Councils stated in the Federal Register that it
PART 2—DEFINITIONS OF WORDS
concluded that the certification in the anticipates that this program will affect
proposed rule was unnecessarily entities, both large and small, that
burdensome, requiring submission of a manufacture or sell biobased products. I 2. Amend section 2.101 in paragraph
separate signed certification. This For example, the designation of items (b)(2) by adding, in alphabetical order,
certification was erroneously patterned for preferred procurement will provide the definition ‘‘Biobased product’’ to
after FAR clause 52.223–9, Estimate of additional opportunities for businesses read as follows:
Recovered Material Content for EPA- to manufacture and sell biobased
Designated Products, Alternate I, which products to Federal agencies and their 2.101 Definitions.
is a requirement for a certification at the contractors. Similar opportunities will * * * * *
end of the contract performance. The be provided for entities that supply (b) * * *
more appropriate model is the pre- biobased materials to manufacturers. (2) * * *
award Recovered Material Certification Conversely, the biobased procurement Biobased product means a product
at FAR 52.223–4, in which the offeror program may decrease opportunities for determined by the U.S. Department of
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provides certification by signing the businesses that manufacture or sell non- Agriculture to be a commercial or
offer. In this way, the estimated biobased products or provide industrial product (other than food or
paperwork burden associated with the components for the manufacturing of feed) that is composed, in whole or in
proposed rule is eliminated. In addition, such products. However, this rule will significant part, of biological products,
the wording ‘‘other than biobased not affect existing purchase orders and including renewable domestic
products that are not purchased by the it will not preclude procuring agencies agricultural materials (including plant,
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Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 63043
animal, and marine materials) or (ii) Describing Government PART 23—ENVIRONMENT, ENERGY
forestry materials. requirements for products and services; AND WATER EFFICIENCY,
* * * * * and RENEWABLE ENERGY
(iii) Developing source-selection TECHNOLOGIES, OCCUPATIONAL
PART 4—ADMINISTRATIVE MATTERS factors. SAFETY, AND DRUG-FREE
* * * * * WORKPLACE
I 3. Amend section 4.1202 by
redesignating paragraphs (r) through (z) 11.101 [Amended] I 10. Amend section 23.000 by revising
as (s) through (aa) respectively, and paragraph (d) to read as follows:
adding a new paragraph (r) to read as I 6. Amend section 11.101 by removing
follows: paragraph (b) and redesignating 23.000 Scope.
paragraph (c) as (b). * * * * *
4.1202 Solicitation provision and contract I 7. Amend section 11.302 by revising (d) Acquiring energy-efficient and
clause. paragraph (c) to read as follows: water-efficient products and services,
* * * * * environmentally preferable products,
11.302 Policy. products that use recovered materials,
(r) 52.223–1, Biobased Product
Certification. * * * * * and biobased products; and
* * * * * (c)(1) When the contracting officer * * * * *
needs additional information to I 11. Revise Subpart 23.4 to read as
PART 7—ACQUISITION PLANNING determine whether supplies meet follows:
minimum recovered material or
I 4. Amend section 7.103 by revising biobased standards stated in the Subpart 23.4—Use of Recovered
paragraph (n)(2) to read as follows: solicitation, the contracting officer may Materials and Biobased Products
7.103 Agency-head responsibilities.
require offerors to submit additional
information on the recycled or biobased 23.400 Scope of subpart.
* * * * * content or related standards. The
(n) * * * 23.401 Definitions.
request for the information must be 23.402 Authorities.
(2) Comply with the policy in included in the solicitation. When 23.403 Policy.
11.002(d) regarding procurement of acquiring commercial items, limit the 23.404 Agency affirmative procurement
biobased products, products containing information to the maximum extent programs.
recovered materials, and practicable to that available under 23.405 Procedures.
environmentally preferable and energy- normal commercial practices. 23.406 Solicitation provisions and contract
efficient products and services. clauses.
(2) For biobased products, the
* * * * * contracting officer may require vendors 23.400 Scope of subpart.
to provide information on life cycle (a) The procedures in this subpart
PART 11—DESCRIBING AGENCY costs and environmental and health apply to all agency acquisitions of an
NEEDS benefits in accordance with 7 CFR Environmental Protection Agency (EPA)
I 5. Amend section 11.002 by revising 2902.8. or United States Department of
paragraph (d) to read as follows: Agriculture (USDA)-designated item,
PART 12—ACQUISITION OF if—
11.002 Policy. COMMERCIAL ITEMS (1) The price of the designated item
* * * * * exceeds $10,000; or
I 8. Amend section 12.301 by revising (2) The aggregate amount paid for
(d)(1) When agencies acquire products
paragraph (e)(3) to read as follows: designated items, or for functionally
and services, various statutes and
executive orders (identified in Part 23) 12.301 Solicitation provisions and equivalent designated items, in the
require consideration of— contract clauses for the acquisition of preceding fiscal year was $10,000 or
(i) Energy-efficient products and commercial items. more.
services (Subpart 23.2); * * * * * (b) While micro-purchases are
(ii) Products and services that utilize included in determining the aggregate
(e) * * *
renewable energy technologies (Subpart amount paid under paragraph (a)(2) of
(3) The contracting officer may use
23.2); this section, it is not recommended that
the provisions and clauses contained in
(iii) Products containing energy- an agency track micro-purchases
Part 23 regarding the use of recovered
efficient standby power devices when—
material and biobased products when (1) The agency anticipates the
(Subpart 23.2); appropriate for the item being acquired.
(iv) Products containing recovered aggregate amount paid will exceed
* * * * * $10,000; or
materials (Subpart 23.4);
(2) The agency intends to establish or
(v) Biobased products (Subpart 23.4); PART 13—SIMPLIFIED ACQUISITION continue an affirmative procurement
and PROCEDURES program in the following fiscal year.
(vi) Environmentally preferable
products and services (Subpart 23.7). I 9. Amend section 13.201 by revising 23.401 Definitions.
(2) Executive agencies shall consider paragraph (f) to read as follows: As used in this subpart—
maximum practicable use of products (a) EPA-designated item means a
and services listed in paragraph (d)(1) of product that is or can be made with
* * * * *
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this section when— recovered material—
(i) Developing, reviewing, or revising (f) The procurement requirements in (1) That is listed by EPA in a
Federal and military specifications, Subparts 23.2, 23.4, and 23.7 apply to procurement guideline (40 CFR part
product descriptions (including purchases at or below the micro- 247); and
commercial item descriptions) and purchase threshold. (2) For which EPA has provided
standards; * * * * * 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 of recovered material used in the (1) Meet the criteria for the definition
Notice (RMAN). performance of contracts. Both the of biobased product, except that the
(b) USDA-designated item means a recovered material content and biobased products need not meet the requirement
generic grouping of products that are or programs require preaward certification that renewable agricultural materials
can be made with biobased materials— that the products meet EPA or USDA (including plant, animal, and marine
(1) That is listed by USDA in a recommendations. A second materials) or forestry materials in such
procurement guideline (7 CFR part certification is required at contract product must be domestic; and
2902, subpart B); and completion for recovered material (2) Otherwise meet all requirements
(2) For which USDA has provided content; and for participation in the preference
purchasing recommendations. (iv) Annual review and monitoring of program.
the effectiveness of the program.
23.402 Authorities. (b) Exemptions. (1) Agency 23.405 Procedures.
(a) The Resource Conservation and affirmative procurement programs must (a) Designated items and procurement
Recovery Act of 1976 (RCRA), 42 U.S.C. require that 100 percent of purchases of guidelines.
6962. EPA or USDA-designated items contain (1) Recovered Materials. Contracting
(b) The Farm Security and Rural recovered material or biobased content, officers should refer to EPA’s list of
Investment Act of 2002 (FSRIA), 7 respectively, unless the item cannot be EPA-designated items (available via the
U.S.C. 8102. acquired— Internet at http://www.epa.gov/cpg/)
(c) Executive Order 13101 of (i) Competitively within a reasonable and to their agencies’ affirmative
September 14, 1998, Greening the time frame; procurement program when purchasing
Government Through Waste Prevention, (ii) Meeting reasonable performance products that contain recovered
Recycling, and Federal Acquisition. standards; or material, or services that could include
(d) The Energy Policy Act of 2005, (iii) At a reasonable price. the use of products that contain
Public Law 109–58. (2) EPA and USDA may provide recovered material.
categorical exemptions for items that (2) Biobased products. Contracting
23.403 Policy. they designate, when procured for a officers should refer to USDA’s list of
Government policy on the use of specific purpose. For example, some USDA-designated items (available
products containing recovered materials USDA-designated items such as mobile through the Internet at http://
and biobased products considers cost, equipment hydraulic fluids, diesel fuel www.usda.gov/biopreferred) and to their
availability of competition, and additives, and penetrating lubricants agencies affirmative procurement
performance. Agencies shall assure the (see 7 CFR 2902.10 et seq.) are excluded program when purchasing supplies that
use of products containing recovered from the preferred procurement contain biobased material or when
materials and biobased products to the requirement for the application of the purchasing services that could include
maximum extent practicable without USDA-designated item to one or both of supplies that contain biobased material.
jeopardizing the intended use of the the following: (b) Procurement exemptions.
product while maintaining a satisfactory (i) Spacecraft system and launch (1) Once an item has been designated
level of competition at a reasonable support equipment. by either EPA or USDA, agencies shall
price. Such products shall meet the (ii) Military equipment, i.e., a product purchase conforming products unless an
reasonable performance standards of the or system designed or procured for exemption applies (see 23.404(b)).
agency and be acquired competitively, combat or combat-related missions. (2) When an exemption is used for an
in a cost-effective manner. Except as (c) Agency affirmative procurement EPA-designated item or the
provided at FAR 23.404(b), virgin programs must provide guidance for procurement of a product containing
material shall not be required by the purchases of EPA-designated items at or recovered material does not meet or
solicitation (see 11.302). below the micro-purchase threshold. exceed the EPA recovered material
(d) Agencies may use their own content guidelines, the contracting
23.404 Agency affirmative procurement specifications or commercial product
officer shall place a written justification
descriptions when procuring products in the contract file.
(a) An agency must establish an containing recovered materials or (c) Program priorities. When both the
affirmative procurement program for biobased products. When using either, USDA-designated item and the EPA-
EPA and USDA-designated items if the the contract should specify— designated item will be used for the
agency’s purchases of designated items (1) For products containing recovered same purposes, and both meet the
exceed the threshold set forth in 23.400. materials, that the product is composed agency’s needs, the agency shall
(1) Agencies have a period of 1 year of the— purchase the EPA-designated item.
to revise their procurement program(s) (i) Highest percent of recovered
after the designation of any new item by materials practicable; or 23.406 Solicitation provisions and
EPA or USDA. (ii) Minimum content standards in contract clauses.
(2) Technical or requirements accordance with EPA’s Recovered (a) Insert the provision at 52.223–1,
personnel and procurement personnel Materials Advisory Notices; and Biobased Product Certification, in
are responsible for the preparation, (2) For biobased products, that the solicitations that—
implementation, and monitoring of product is composed of— (1) Require the delivery or specify the
affirmative procurement programs. (i) The highest percentage of biobased use of USDA-designated items; or
(3) Agency affirmative procurement material practicable; or (2) Include the clause at 52.223–2.
programs must include— (ii) USDA’s recommended minimum (b) Insert the clause at 52.223–2,
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(i) A recovered materials and biobased contents standards. Affirmative Procurement of Biobased
products preference program; (e) Agencies shall treat as eligible for Products Under Service and
(ii) An agency promotion program; the preference for biobased products, Construction Contracts, in service or
(iii) For EPA-designated items only, a products from ‘‘designated countries,’’ construction solicitations and contracts
program for requiring reasonable as defined in 25.003, provided that unless the contract will not involve the
estimates, certification, and verification those products— 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 52—SOLICITATION PROVISIONS 52.223–4 [Amended]
Part 2902. AND CONTRACT CLAUSES I 18. Amend section 52.223–4 by
(c) Insert the provision at 52.223–4, removing from the prescription
Recovered Material Certification, in I 17. Add sections 52.223–1 and ‘‘23.406(a)’’ and adding ‘‘23.406(c)’’ in
solicitations that are for, or specify the 52.223–2 to read as follows: its place.
use of, EPA-designated items. 52.223–1 Biobased Product Certification.
(d) Insert the clause at 52.223–9, 52.223–9 [Amended]
Estimate of Percentage of Recovered As prescribed in 23.406(a), insert the I 19. Amend section 52.223–9 by
Material Content for EPA-Designated following provision: removing from the prescription and
BIOBASED PRODUCT CERTIFICATION Alternate I ‘‘23.406(b)’’ and adding
Products, in solicitations and contracts [December 7, 2007]
exceeding $100,000 that are for, or ‘‘23.406(d)’’ respectively, in its place.
As required by the Farm Security and
specify the use of, EPA-designated [FR Doc. 07–5478 Filed 11–6–07; 8:45 am]
Rural Investment Act of 2002 and the
products containing recovered BILLING CODE 6820–EP–S
Energy Policy Act of 2005 (7 U.S.C.
materials. If technical personnel advise
8102(c)(3)), the offeror certifies, by
that estimates can be verified, use the
signing this offer, that biobased DEPARTMENT OF DEFENSE
clause with its Alternate I.
products (within categories of products
23.701 [Removed] listed by the United States Department GENERAL SERVICES
I 12. Remove and reserve section of Agriculture in 7 CFR part 2902, ADMINISTRATION
23.701. subpart B) to be used or delivered in the
I 13. Amend section 23.702 by adding performance of the contract, other than NATIONAL AERONAUTICS AND
paragraph (g) to read as follows: biobased products that are not SPACE ADMINISTRATION
purchased by the offeror as a direct
23.702 Authorities. result of this contract, will comply with 48 CFR Parts 2, 3, 12, 15, 18, 19, 27,
* * * * * the applicable specifications or other 33, and 52
(g) Farm Security and Rural contractual requirements.
Investment Act of 2002 (FSRIA) (7 (End of provision) [FAC 2005–21; FAR Case 1999–402; Item
III; Docket 2007–0001; Sequence 7]
I 14. Amend section 23.703 by revising
52.223–2 Affirmative Procurement of RIN 9000–AJ64
Biobased Products Under Service and
paragraph (b)(7); and adding paragraph Construction Contracts.
(b)(8) to read as follows: Federal Acquisition Regulation; FAR
As prescribed in 23.406(b), insert the Case 1999–402, FAR Part 27 Rewrite in
23.703 Policy. following clause: Plain Language
* * * * * AFFIRMATIVE PROCUREMENT OF
(b) * * * BIOBASED PRODUCTS UNDER SERVICE AGENCIES: Department of Defense (DoD),
(7) Promote the use of biobased AND CONSTRUCTION CONTRACTS General Services Administration (GSA),
[December 7, 2007] and National Aeronautics and Space
(8) Purchase only plastic ring carriers (a) In the performance of this contract, Administration (NASA).
that are degradable (7 USC 8102(c)(1), the contractor shall make maximum use ACTION: Final rule.
40 CFR part 238). of biobased products that are United
States Department of Agriculture SUMMARY: The Civilian Agency
PART 42—CONTRACT (USDA)-designated items unless— Acquisition Council and the Defense
ADMINISTRATION AND AUDIT (1) The product cannot be acquired— Acquisition Regulations Council
SERVICES (i) Competitively within a time frame (Councils) have agreed on a final rule
providing for compliance with the amending the Federal Acquisition
I 15. Amend section 42.302 by revising contract performance schedule; Regulation (FAR) to clarify, streamline,
paragraph (a)(68)(ii) to read as follows: (ii) Meeting contract performance and update text and clauses on Patents,
requirements; or Data, and Copyrights (FAR Part 27).
42.302 Contract administration functions.
(iii) At a reasonable price. DATES: Effective Date: December 7, 2007.
(a) * * *
(68) * * * (2) The product is to be used in an FOR FURTHER INFORMATION CONTACT: Mr.
(ii) Monitoring contractor compliance application covered by a USDA Ernest Woodson, Procurement Analyst,
with specifications or other contractual categorical exemption (see 7 CFR at (202) 501–3775 for clarification of
requirements requiring the delivery or 2902.10 et seq.). For example, some content. For information pertaining to
use of environmentally preferable USDA-designated items such as mobile status or publication schedules, contact
products, energy-efficient products, equipment hydraulic fluids, diesel fuel the FAR Secretariat at (202) 501–4755.
products containing recovered additives, and penetrating lubricants are Please cite FAC 2005–21, FAR case
materials, and biobased products. This excluded from the preferred 1999–402.
must occur as part of the quality procurement requirement for the SUPPLEMENTARY INFORMATION:
assurance procedures set forth in Part application of the USDA-designated
item to one or both of the following: A. Background
(i) Spacecraft system and launch This final rule is a ‘‘plain language’’
* * * * *
support equipment. rewrite of FAR Part 27 and its associated
PART 45—GOVERNMENT PROPERTY (ii) Military equipment, i.e., a product clauses in Part 52. Part 27 implements
or system designed or procured for
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a number of statutes and executive
45.103 [Amended] combat or combat-related missions. orders pertaining to patents, data, and
I 16. Amend section 45.103 by (b) Information about this requirement copyrights. This effort focused on
removing from paragraph (a)(1) and these products is available at http:// clarifying, streamlining, and updating
‘‘11.101(c)’’ and adding ‘‘11.101(b)’’ in www.usda.gov/biopreferred. the text, with the ultimate goal of
its place. (End of clause) making the policies and procedures
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