Federal Acquisition Regulation; Biobased Products Preference Program (PDF)

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					                                            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
                                            Administration (NASA).
                                                                                                     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
                                            Agriculture.
                                                                                                     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
                                                                                                     products.
                                            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
                                                                                                                                                           AND TERMS
                                            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
                                                                                                                                                           Sec.
                                                                                                     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
                                                                                                     13.201    General.
                                            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
                                            programs.
                                                                                                                                                           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]
                                            U.S.C. 8102).
                                            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
                                            products.
                                              (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
                                            46; and
                                                                                                        (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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