[Federal Register: December 26, 2006 (Volume 71, Number 247)]
[Proposed Rules]
[Page 77360-77365]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de06-19]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 7, 11, 12, 13, 23, 42, and 52
[FAR Case 2004-032; Docket 2006-0020; Sequence 13]
RIN 9000-AK65
Federal Acquisition Regulation; FAR Case 2004-032, Biobased
Products Preference Program
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement section 9002 of the
Farm Security and Rural Investment Act of 2002 (FSRIA), as amended by
Sections 205 and 943 of the Energy Policy Act of 2005. Entitled Federal
Procurement of Biobased Products, section 9002 requires that a
procurement preference be afforded biobased products within items
designated by the Secretary of Agriculture.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before February 26, 2007 to be considered in the
formulation of a final rule.
The Councils, in collaboration with OFPP, invite interested parties
from both the private and public sector to provide comments on the
biobased procurement preference program and the requirement that
Federal agencies shall consider maximum practicable use of biobased
products when acquiring products and services.
ADDRESSES: Submit comments identified by FAR case 2004-032 by any of
the following methods:
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
Search for any document by first selecting the proper document types
and selecting ``Federal Acquisition Regulation'' as the agency of
choice. At the ``Keyword'' prompt, type in the FAR case number (for
example, FAR Case 2006-001) and click on the ``Submit'' button. Please
include any personal and/or business information inside the document.
You may also search for any document by clicking on the ``Advanced
search/document search'' tab at the top of the screen, selecting from
the agency field ``Federal Acquisition Regulation'', and typing the FAR
case number in the keyword field. Select the ``Submit'' button.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2004-
032 in all correspondence related to this case. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
William Clark, Procurement Analyst, at (202) 219-1813. For information
pertaining to status or publication schedules, contact the FAR
Secretariat at (202) 501-4755. Please cite FAR case 2004-032.
SUPPLEMENTARY INFORMATION:
A. Background
On May 13, 2002, the President signed the Farm Security and Rural
Investment Act of 2002 (FSRIA), Public Law 107--171. Section 9002 of
the Act, entitled Federal Procurement of Biobased Products, requires
that each Federal agency (``Procuring Agency'' as amended by the Energy
Policy Act of 2005), which procures products within items designated by
the Secretary of Agriculture, give a preference to qualified biobased
products, subject to specified exceptions. This same section requires
the Secretary of Agriculture to designate items which contain products
which are or can be produced with biobased products, establish
recommended practices with respect to the procurement of products
within the designated items, and provide
[[Page 77361]]
information as to the availability, relative price, performance, and
environmental and public health benefits of such items. In a final
rule, published January 11, 2005 entitled Guidelines for Designating
Biobased Products for Federal Procurement, the USDA promulgated
regulations defining the process for designating items. In the July 5,
2005 Federal Register (70 FR 38612), USDA proposed 6 item containing
biobased materials that it plans to designate for Federal procurement
preference. In the March 16, 2006 Federal Register (71 FR 13685)
entitled ``Designation of Biobased Items for Federal Procurement'',
USDA made a final determination about these items. USDA designated the
following six items within which biobased products will be afforded
Federal procurement preference, as provided for under section 9002 of
the Farm Security and Rural Investment Act of 2002: Mobile equipment
hydraulic fluids; roof coatings; water tank coatings; diesel fuel
additives; penetrating lubricants; and bedding, bed linens, and towels.
USDA also established minimum biobased content for each of these items.
However, USDA deferred the effective date for two items (water tank
coatings and bedding, bed linens, and towels) until such time that more
than one manufacturer of products in these two items is identified and
planned to announce that availability in a future Federal Register
notice. In the August 17, 2006 Federal Register (71 FR 47566 and
47589), USDA proposed 20 additional items containing biobased materials
that it plans to designate for Federal procurement preference.
USDA's designation of biobased items parallels the approach taken
by the Environmental Protection Agency (EPA) in its designation of
items containing recovered material pursuant to 40 CFR part 247,
subpart B. USDA indicates throughout the preamble of the rule that
where a biobased item is used for the same purposes and to meet the
same requirements as an EPA-designated recovered content product, the
Federal agency must purchase the recovered content product. If, on the
other hand, for example, biobased hydraulic fluid is to be used to
address certain environmental or health requirements that the EPA-
designated recovered content product would not meet, then the biobased
product should be given preference, subject to cost, availability, and
performance.
On August 8, 2005, the President signed the Energy Policy Act of
2005, Public Law 109--58. Section 943 of the Energy Policy Act amended
the FSRIA by revising the term ``Federal agency'' to ``Procuring
Agency'' in several areas of Section 9002. The term `Procuring agency''
was defined as any Federal agency that is using Federal funds for
procurement; or any person contracting with any Federal agency with
respect to work performed under the contract. The amended definition
expanded application of the Biobased Program to products used in the
performance of service contracts (including construction). Section 205
added a requirement for degradable plastic ring carriers, see 40 CFR
part 238.
In the July 27, 2006 Federal Register (71 FR 42572), USDA amended 7
CFR 2902 in order to clarify that biobased products from certain
designated countries must be treated by procuring agencies as eligible
for the procurement preference under FSRIA. This amendment requires
agencies treat as eligible for the preference, biobased products
composed of renewable agricultural materials or forestry materials from
``designated countries,'' as defined in 25.003, provided that those
products otherwise meet all requirements for participation in the
preference program.
This proposed rule incorporates the biobased procurement preference
into the FAR. As discussed by the USDA in the Supplemental Information
section of their final rule at 70 FR 1792-1793 (January 11, 2005),
Congress had three primary objectives in enacting section 9002 of
FSRIA: improved demand for biobased products, development of the
industrial base through value-added agricultural processing and
manufacturing, and energy security. While environmental enhancement is
only a possible ancillary feature to the first goal, the bulk of the
implementing regulations are proposed for inclusion in FAR subpart 23.4
due to the similarities between FSRIA section 9002 and section 6002 of
the RCRA mandating a similar preference for items containing recovered
materials. Specifically, both have similar triggering, preference, and
exemption provisions; mandate a preference program; and require
conformity certification. Both also require federal agencies
responsible for drafting specifications to review and revise their
specifications to require the use of recovered materials and biobased
products respectively. By integrating the regulations implementing
section 9002 of the FSRIA and section 6002 of the RCRA, efficiencies
can be achieved at the contracting officer level by eliminating the
repetitive requirement of reconciling the two provisions. While the
statutory provisions are strikingly similar, there are minor
differences in the details of the two statutes as reflected in the
proposed rule.
The EPA program began at a time when contract certifications were
more stringent than the current practice. Under the EPA, the offerors
are required to furnish a preaward certification that they will furnish
a product with the requisite EPA recommended recovered material
content. At contract completion, the contractor is required to furnish
an estimate of the actual recovered material content of the product
delivered. The Government, in turn, is required to verify the accuracy
of the contractors' certifications. Under the new USDA program,
offerors are simply required to furnish a preaward self-certification
that they will deliver and/or use products containing the minimum
biobased content. Under both programs, the EPA or USDA may propose and
designate additional products from time to time. Under both programs,
the Federal agencies have a period of 1-year period in which to modify
their procurement programs to accommodate the newly designated
products. Under both programs, Federal agencies may choose not to
acquire products with recovered material or biobased content if they
are not readily available, not reasonably priced, or do not perform
satisfactorily.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Solicitation of Public Comment
The Councils, along with OFPP, wish to ensure that the biobased
preference program includes the acquisition of products and services
(including construction). In furtherance of its responsibility under
section 9002, OFPP seeks to better understand the application of
acquisition of services coverage and welcomes feedback on this aspect
of the proposed rule. In commenting, please include citations, as
appropriate, to relevant sources of information that may be used to
substantiate the basis for your comments.
C. Regulatory Flexibility Act
This proposed rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because
manufacturers, large or small, are expected to develop and market
biobased products within the designated items. The actual impact will
be item
[[Page 77362]]
specific and based on how many small entities are providing a specific
item once it is designated by the United States Department of
Agriculture.
On March 16, 2006, the USDA issued a final rule in the Federal
Register (71 FR 13685) amending 7 CFR part 2902, Guidelines for
Designating Biobased Products for Federal Procurement, to add six
sections designating the first six of a series of items that are made
with biobased products that would be afforded Federal procurement
preference, as provided for under section 9002 of the Farm Security and
Rural Investment Act of 2002. The Initial Regulatory Flexibility Act
Statement is summarized as follows:
The rule will amend the FAR to implement section 9002 of the
Farm Security and Rural Investment Act (FSRIA) (Public L. 107-171, 7
U.S.C. section 8102), as amended by the Energy Policy Act of 2005
(Public L. 109-58, section 943) and incorporate the biobased
preference program. As USDA designates items through the issuance of
final rules, it is anticipated that this rule will impact small
business entities that manufacture or sell products within the
designated items. The impact may vary based on the specific item[s]
once they are designated by USDA.
The objective of the rule is to incorporate the biobased
procurement preference into the FAR. As discussed by the USDA in the
Supplementary Information section of their final rule published in
the Federal Register at 70 FR 1792, January 11, 2005; Congress had
three primary objectives in enacting section 9002 of FSRIA: (1)
improved demand for biobased products; (2) development of the
industrial base through value-added agricultural processing and
manufacturing, and; (3) energy security.
The proposed rule will apply to all large and small business
entities that seek award of Federal contracts that may involve the
manufacturing, selling or use of biobased products. Because the
program is still in its infancy, the number of small business
entities impacted is unknown and cannot be determined by the
Councils. Small business entities are encouraged to thoroughly
review the USDA's final rule entitled ``Guidelines for Designating
Biobased Products for Federal Procurement'' published in the Federal
Register at 70 FR 1792, January 11, 2005 as well as any subsequent
publications from USDA concerning the program. It is anticipated
that as items are designated by USDA through the issuance of final
rules, this Federal procurement preference program may provide
additional opportunities for small business entities that
manufacture and sell USDA designated biobased products to Federal
agencies. USDA anticipates that it will take approximately 4 years
to designate all items under this program. In its final rule
published on March 16, 2006, USDA indicated they have no data on the
number of small businesses that may choose to develop and market
products within the six items designated, however, USDA expects the
number to be small. Because biobased products represent a small
emerging market, only a small percentage of all manufacturers, large
or small, are expected to develop and market biobased products.
The proposed rule does contain information collection
requirements, which the Paperwork Reduction Act section of this
notice addresses more fully below. The rule does not duplicate,
overlap, or conflict with any other Federal rules. There are no
practical alternatives that will accomplish the objectives of this
proposed rule.
The FAR Secretariat has submitted a copy of the IRFA to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
the IRFA may be obtained from the FAR Secretariat. The Councils will
consider comments from small entities concerning the affected FAR parts
2, 7, 11, 12, 13, 23, 42, and 52 in accordance with 5 U.S.C. 610.
Comments must be submitted separately and should cite 5 U.S.C 601, et
seq. (FAR case 2004-032), in correspondence.
D. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) applies because the
proposed rule contains information collection requirements. The rule
will require offerors to submit a certification that products being
used or delivered in the performance of the contract are qualified
biobased products that fall under items (generic groupings of biobased
products) that have been designated by USDA for preferred procurement.
Accordingly, the FAR Secretariat has submitted a request for approval
of a new information collection requirement concerning OMB Control
Number 9000-00XX, Biobased Products Preference Program, implementation
of section 9002 of the Farm Security and Rural Investment Act of 2002
(Pub. L. 107--171, 7 U.S.C. section 8102), to the Office of Management
and Budget under 44 U.S.C. 3501m et seq.
Annual Reporting Burden:
The clause at 52.223-1 requires the contractor to certify the use
of biobased material in each applicable solicitation, i.e. when the
Federal agency purchases $10,000 or more of one of the USDA designated
items or when functionally equivalent items purchased during the
preceding fiscal year was $10,000 or more. As USDA continues to
designate items, it is anticipated that the number of responses will
increase over time. It is estimated that an average of 30 minutes will
be required for offerors and contractors to research, prepare, and
submit the required information. We currently estimate the annual total
burden hours as follows:
Respondents: 6,000.
Responses per respondent: 6.
Total annual responses: 36,000.
Preparation hours per response: .5.
Total response burden hours: 18,000.
E. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than February 26, 2007 to: FAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, FAR Secretariat (VIR), 1800 F Street, NW, Room 4035,
Washington, DC 20405.
Public comments are particularly invited on: whether this
collection of information is necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requester may obtain a copy of the justification from the General
Services Administration, FAR Secretariat (VIR), Room 4035, Washington,
DC 20405, telephone (202) 501-4755. Please cite OMB Control Number
9000-00XX, Biobased Products Preference Program, in all correspondence.
List of Subjects in 48 CFR Parts 2, 7, 11, 12, 13, 23, 42, and 52
Government procurement.
Dated: December 15, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 7,
11, 12, 13, 23, 42, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 7, 11, 12, 13, 23,
42, and 52 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 in paragraph (b)(2) by adding, in
alphabetical order, the definition ``Biobased product'' to read as
follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Biobased product (7 U.S.C. 8101(2)) means a product determined by
the U.S.
[[Page 77363]]
Department of Agriculture to be a commercial or industrial product
(other than food or feed) that is composed, in whole or in significant
part, of biological products or renewable domestic agricultural
materials (including plant, animal, and marine materials) or forestry
materials.
* * * * *
PART 7--ACQUISITION PLANNING
3. Amend section 7.103 by revising paragraph (n)(2) to read as
follows:
7.103 Agency-head responsibilities.
* * * * *
(n) * * *
(2) Comply with the policy in 11.002(d) regarding procurement of
biobased products, products containing recovered materials, and
environmentally preferable and energy-efficient products and services.
* * * * *
PART 11--DESCRIBING AGENCY NEEDS
4. Amend section 11.002 by revising paragraph (d) to read as
follows:
11.002 Policy.
* * * * *
(d)(1) When agencies acquire products and services, various
statutes and executive orders (identified in Part 23) require
consideration of--
(i) Energy-efficient products and services (Subpart 23.2);
(ii) Products and services that utilize renewable energy
technologies (Subpart 23.2);
(iii) Products containing energy-efficient standby power devices
(Subpart 23.2);
(iv) Products containing recovered materials (Subpart 23.4);
(v) Biobased products (Subpart 23.4); and
(vi) Environmentally preferable products and services (Subpart
23.7).
(2) Executive agencies shall consider maximum practicable use of
products and services listed in paragraph (d)(1) of this section when--
(i) Developing, reviewing, or revising Federal and military
specifications, product descriptions (including commercial item
descriptions) and standards;
(ii) Describing Government requirements for products and services;
and
(iii) Developing source-selection factors.
* * * * *
11.101 [Amended]
5. Amend section 11.101 by removing paragraph (b) and redesignating
paragraph (c) as (b).
6. Amend section 11.302 by revising paragraph (c) to read as
follows:
11.302 Policy.
* * * * *
(c)(1) When the contracting officer needs additional information to
determine whether supplies meet minimum recovered material or biobased
standards stated in the solicitation, the contracting officer may
require offerors to submit additional information on the recycled or
biobased content or related standards. The request for the information
must be included in the solicitation. When acquiring commercial items,
limit the information to the maximum extent practicable to that
available under normal commercial practices.
(2) For biobased products, the contracting officer may require
vendors to provide information on life cycle costs and environmental
and health benefits in accordance with 7 CFR 2902.8.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
7. Amend section 12.301 by revising paragraph (e)(3) to read as
follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(e) * * *
(3) The contracting officer may use the provisions and clauses
contained in Part 23 regarding the use of recovered material and
biobased products when appropriate for the item being acquired.
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
8. Amend section 13.201 by revising paragraph (f) to read as
follows:
13.201 General.
* * * * *
(f) The procurement requirements in Subparts 23.2, 23.4, and 23.7
apply to purchases at or below the micro-purchase threshold.
* * * * *
PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
9. Amend section 23.000 by revising paragraph (d) to read as
follows:
23.000 Scope.
* * * * *
(d) Acquiring energy-and water-efficient products and services,
environmentally preferable products, products that use recovered
materials, and biobased products; and
* * * * *
10. Revise Subpart 23.4 to read as follows:
Subpart 23.4--Use of Products Containing Recovered Materials and
Biobased Products
Sec.
23.400 Scope of subpart.
23.401 Definitions.
23.402 Authorities.
23.403 Policy.
23.404 Agency affirmative procurement programs.
23.405 Procedures.
23.406 Solicitation provisions and contract clauses.
23.400 Scope of subpart.
(a) The procedures in this subpart apply to all agency acquisitions
of an Environmental Protection Agency (EPA) or United States Department
of Agriculture (USDA)-designated item, if--
(1) The price of the designated item exceeds $10,000; or
(2) The aggregate amount paid for designated items, or for
functionally equivalent designated items, in the preceding fiscal year
was $10,000 or more.
(b) While micro-purchases are included in determining the aggregate
amount paid under paragraph (a)(2) of this section, it is not
recommended that an agency track micro-purchases when--
(1) The agency anticipates the aggregate amount paid will exceed
$10,000; or
(2) The agency intends to establish or continue an affirmative
procurement program in the following fiscal year.
23.401 Definitions.
As used in this subpart--
(a) EPA-designated item means a product that is or can be made with
recovered material--
(1) That is listed by EPA in a procurement guideline (40 CFR part
247); and
[[Page 77364]]
(2) For which EPA has provided purchasing recommendations in a
related Recovered Materials Advisory Notice (RMAN).
(b) USDA-designated item means a product that is or can be made
with biobased material--
(1) That is listed by USDA in a procurement guideline (7 CFR part
2902, subpart B); and
(2) For which USDA has provided purchasing recommendations.
23.402 Authorities.
(a) The Resource Conservation and Recovery Act of 1976 (RCRA), 42
U.S.C. 6962.
(b) The Farm Security and Rural Investment Act of 2002 (FSRIA), 7
U.S.C. 8102.
(c) Executive Order 13101 of September 14, 1998, Greening the
Government Through Waste Prevention, Recycling, and Federal
Acquisition.
(d) The Energy Policy Act of 2005, Public Law 109-58.
23.403 Policy.
Government policy on the use of products containing recovered
materials and biobased products considers cost, availability of
competition, and performance. Agencies shall assure the use of products
containing recovered materials and biobased products to the maximum
extent practicable without jeopardizing the intended use of the product
while maintaining a satisfactory level of competition at a reasonable
price. Such products shall meet the reasonable performance standards of
the agency and be acquired competitively, in a cost-effective manner.
Except as provided at 23.404(b), virgin material shall not be required
by the solicitation (see 11.302).
23.404 Agency affirmative procurement programs.
(a) An agency must establish an affirmative procurement program for
EPA and USDA-designated items if the agency's purchases of designated
items exceed the threshold set forth in 23.400.
(1) Agencies have a period of 1 year to revise their procurement
program(s) after the designation of any new item by EPA or USDA.
(2) Technical or requirements personnel and procurement personnel
are responsible for the preparation, implementation, and monitoring of
affirmative procurement programs.
(3) Agency affirmative procurement programs must include--
(i) A recovered materials and biobased products preference program;
(ii) An agency promotion program;
(iii) For EPA-designated items only, a program for requiring
reasonable estimates, certification, and verification of recovered
material used in the performance of contracts. Both the recovered
material content and biobased programs require preaward certification
that the products meet EPA or USDA recommendations. A second
certification is required at contract completion for recovered material
content; and
(iv) Annual review and monitoring of the effectiveness of the
program.
(b) Agency affirmative procurement programs must require that 100
percent of purchases of EPA or USDA-designated items contain recovered
material or biobased content, respectively, unless the item cannot be
acquired--
(1) Competitively within a reasonable time frame;
(2) Meeting reasonable performance standards; or
(3) At a reasonable price.
(c) Agency affirmative procurement programs must provide guidance
for purchases of EPA-designated items at or below the micro-purchase
threshold.
(d) Agencies may use their own specifications or commercial product
descriptions when procuring products containing recovered materials or
biobased products. When using either, the contract should specify--
(1) For products containing recovered materials, that the product
is composed of the--
(i) Highest percent of recovered materials practicable; or
(ii) Minimum content standards in accordance with EPA's Recovered
Materials Advisory Notices; and
(2) For biobased products, that the product is composed of--
(i) The highest percentage of biobased material practicable; or
(ii) USDA's recommended minimum contents standards.
(e) Agencies shall treat as eligible for the preference for
biobased products, products from ``designated countries,'' as defined
in 25.003, provided that those products--
(1) Meet the criteria for the definition of biobased product,
except for the requirement that renewable agricultural materials
(including plant, animal, and marine materials) or forestry materials
in such product must be domestic; and
(2) Otherwise meet all requirements for participation in the
preference program.
23.405 Procedures.
(a) Designated items and procurement guidelines.--(1) Recovered
Materials. Contracting officers should refer to EPA's list of EPA-
designated items (available via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/cpg/)
and to their agencies' affirmative procurement program when
purchasing products that contain recovered material, or services that
could include the use of products that contain recovered material.
(2) Biobased products. Contracting officers should refer to USDA's
list of USDA-designated items (available through the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.biobased.oce.usda.gov
) and to their agencies' affirmative
procurement program when purchasing supplies that contain biobased
material or when purchasing services that could include supplies that
contain biobased material.
(b) Procurement exemptions.--(1) Once an item has been designated
by either EPA or USDA, agencies shall purchase conforming products
unless it is determined that conforming products cannot be acquired--
(i) Competitively within a reasonable time frame;
(ii) Meeting reasonable performance standards; or
(iii) At a reasonable price.
(2) When an exemption is used for an EPA designated item or the
procurement of a product containing recovered material does not meet or
exceed the EPA recovered material content guidelines, the contracting
officer shall place a written justification in the contract file.
(c) Program priorities. When both the USDA-designated item and the
EPA-designated item will be used for the same purposes, and both meet
the agency's needs, the agency shall purchase the EPA-designated item.
23.406 Solicitation provisions and contract clauses.
(a) Insert the provision at 52.223-1, Biobased Product
Certification, in solicitations that--
(1) Require the delivery or specify the use of USDA-designated
items; or
(2) Include the clause at 52.223-XX.
(b) Insert the provision at 52.223--4, Recovered Material
Certification, in solicitations that are for, or specify the use of,
EPA-designated items.
(c) Insert the clause at 52.223--9, Estimate of Percentage of
Recovered Material Content for EPA-designated Items, in solicitations
and contracts exceeding $100,000 that include the provision at 52.223--
4. If technical personnel advise that estimates can be verified, use
the clause with its Alternate I.
(d) Insert the clause at 52.223-XX, Affirmative Procurement of
Biobased Products Under Service and Construction Contracts, in service
or construction solicitations and contracts unless the contract will
not involve the
[[Page 77365]]
use of USDA-designated items at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.biobased.oce.usda.gov or 7
CFR part 2902.
23.701 [Removed and Reserved]
11. Remove and reserve section 23.701.
12. Amend section 23.702 by adding paragraph (g) to read as
follows:
23.702 Authorities.
* * * * *
(g) Farm Security and Rural Investment Act of 2002 (FSRIA) (7
U.S.C. 8102).
13. Amend section 23.703 by revising paragraph (b)(7); and adding
paragraph (b)(8) to read as follows:
23.703 Policy.
* * * * *
(b) * * *
(7) Promote the use of biobased products.
(8) Purchase only plastic ring carriers that are degradable (7 USC
8102(c)(1), 40 CFR part 238).
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
14. Amend section 42.302 by revising paragraph (a)(68)(ii) to read
as follows:
42.302 Contract administration functions.
(a) * * *
(68) * * *
(ii) Monitoring contractor compliance with specifications or other
contractual requirements requiring the delivery or use of
environmentally preferable products, energy-efficient products,
products containing recovered materials, and biobased products. This
must occur as part of the quality assurance procedures set forth in
Part 46; and
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
15. Add section 52.223-1 to read as follows:
52.223-1 Biobased Product Certification.
As prescribed in 23.406(a), insert the following provision:
BIOBASED PRODUCT CERTIFICATION (DATE)
The Contractor shall execute the following certification
required by the Farm Security and Rural Investment Act of 2002 (7
U.S.C. 8102(c)(3)):
I, -------------- (name of certifier), am an officer or employee
responsible for the performance of this contract and I hereby
certify that biobased products (within categories of items listed by
the United States Department of Agriculture in 7 CFR part 2902,
subpart B) to be used or delivered in the performance of the
contract will comply with the applicable specifications or other
contractual requirements.
----------------------------------------
[Signature of the Officer or Employee]
----------------------------------------
[Typed Name of the Officer or Employee]
----------------------------------------
[Title]
----------------------------------------
[Name of Company, Firm, or Organization]
----------------------------------------
[Date]
(End of provision)
52.223-4 [Amended]
16. Amend section 52.223-4 by removing from the prescription
``23.406(a'') and adding ``23.406(b'') in its place.
52.223-9 [Amended]
17. Amend section 52.223-9 by removing from the prescription
``23.406(b'') and adding ``23.406(c'') in its place.
18. Add section 52.223-XX to read as follows:
52.223-XX Affirmative Procurement of Biobased Products Under Service
and Construction Contracts.
As prescribed in 23.406(d), insert the following clause:
AFFIRMATIVE PROCUREMENT OF BIOBASED PRODUCTS UNDER SERVICE AND
CONSTRUCTION CONTRACTS (DATE)
(a) In the performance of this contract, the contractor shall
make maximum use of biobased products that are USDA-designated items
unless the product cannot be acquired--
(1) Competitively within a time frame providing for compliance
with the contract performance schedule;
(2) Meeting contract performance requirements; or
(3) At a reasonable price.
(b) Information about this requirement and these products is
available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.biobased.oce.usda.gov.
(End of clause)
[FR Doc. 06-9846 Filed 12-22-06; 8:45 am]
BILLING CODE 6820-EP-S