[Federal Register: May 31, 2011 (Volume 76, Number 104)]
[Rules and Regulations]
[Page 31395-31402]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31my11-19]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 4, 5, 7, 11, 12, 13, 23, 36, 37, 39, and 52
[FAC 2005-52; FAR Case 2010-001; Item I; Docket 2010-0001, Sequence 1]
RIN 9000-AL96
Federal Acquisition Regulation; Sustainable Acquisition
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement Executive Order
13514, Federal Leadership in Environmental, Energy, and Economic
Performance, and Executive Order 13423, Strengthening Federal
Environmental, Energy, and Transportation Management. This interim rule
requires Federal agencies to leverage agency acquisitions to foster
markets for sustainable technologies, materials, products, and
services. Federal agencies are additionally required to implement high-
performance sustainable building design, construction, renovation,
repair, commissioning, operation and maintenance, management, and
deconstruction practices in applicable acquisitions. Contractors will
be required to support the goals of an agency's environmental
management system.
DATES: Effective Date: May 31, 2011.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before August 1, 2011 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-52, FAR Case 2010-
001, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2010-001'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2010-001.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2010-001'' on your attached document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-52, FAR
Case 2010-001, in all correspondence related to this case. All comments
received will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement
Analyst, at (202) 219-1813, for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-52, FAR
Case 2010-001.
SUPPLEMENTARY INFORMATION:
I. Background
In the face of changing environmental circumstances and our
Nation's heightened energy demands, the Federal Government must lead by
example to create a clean energy economy that will increase prosperity,
promote energy security, protect the interests of taxpayers, and
safeguard the health of our environment. Executive Order 13514 (E.O.
13514), Federal Leadership in Environmental, Energy, and Economic
Performance, was signed on October 5, 2009 (74 FR 52117, October 8,
2009). It requires Federal agencies to leverage agency acquisitions to
foster markets for sustainable technologies and materials, products,
and services. The head of each agency shall advance sustainable
acquisition by ensuring that 95 percent of new contract actions,
including task and delivery orders, for products and services, with the
exception of acquisition of weapon systems, are energy-efficient
(Energy Star or Federal Energy Management Program (FEMP)-designated),
water-efficient, biobased, environmentally preferable (e.g., Electronic
Product Environmental Assessment Tool (EPEAT)-registered), non-ozone
depleting, contain recycled content, or are non-toxic or less toxic
alternatives, where such products and services meet agency performance
requirements. Federal agencies are also required to design, construct,
maintain and operate high-performance sustainable buildings in
sustainable locations.
Similarly, recognizing the long-term impact that Federal
environmental management can have on national health and security,
Executive Order 13423 (E.O. 13423), Strengthening Federal
Environmental, Energy, and Transportation Management, was signed on
January 24, 2007 (72 FR 3919, January 26, 2007). E.O. 13423 establishes
the policy that Federal agencies shall conduct their environmental,
transportation, and energy-related activities in an environmentally,
economically, and fiscally sound, integrated, continuously improving,
efficient, and sustainable manner.
The authorities throughout the applicable FAR parts are updated to
include E.O. 13423 and E.O. 13514. Additionally, authorities throughout
the applicable FAR parts are updated to delete references to E.O.
13101, E.O. 13123, and E.O. 13148, because the Executive orders were
revoked by E.O. 13423.
Under FAR part 2, the definitions for ``renewable energy'' and
``United States'' are revised to reflect the latest definitions of the
terms in E.O. 13514. A new definition for ``sustainable acquisition,''
derived from the definition of ``sustainable'' in E.O. 13514, is added
to FAR part 2. The definition of ``water consumption intensity'' is
also added to FAR part 2 from E.O. 13514.
FAR part 4 changes include revisions to the policy for contractor
submission of paper documents to the Government and updating the
general description of the Federal Procurement Data System (FPDS). In
efforts to reduce or prevent waste and meet the intent of the agencies'
requirement to purchase at least 30 percent postconsumer fiber content
paper as directed in both E.O. 13423 and E.O. 13514, contractors are
required, if not using electronic commerce methods, to submit paper
[[Page 31396]]
documents to the Government on double-sided 30 percent post-consumer
fiber paper, whenever practicable. This is a change from the current
regulations that only encourage the submission of paper documents on
recycled paper. The general description of FPDS is revised to reflect
that the Web-based tool will be a means of collecting sustainable
acquisition data.
FAR parts 5, 7, and 11 are revised to ensure agencies are including
or considering sustainable acquisition requirements in their synopses,
acquisition planning documents and functions, and descriptions of
agency needs.
Conforming changes are made to FAR parts 12 and 13.
FAR part 23 is revised to ensure that the policy of ``leading by
example'' is followed by Federal agencies. This includes fostering
markets for sustainable technologies, materials, products, and
services, as a goal of agency acquisitions.
FAR 23.001 is amended to add new definitions for ``environmental,''
``greenhouse gases,'' and ``United States.'' All the definitions derive
from E.O. 13514. FAR 23.002 is added to implement a policy, derived
from E.O. 13423 sections 3(e) and (f), which requires that contracts
for contractor operation of a Government-owned or -leased facility and
contracts for support services at a Government-owned or -operated
facility include provisions that obligate the contractor to comply with
the requirements of the order to the same extent as the agency would be
required to comply if the agency operated or supported the facility.
Compliance includes developing programs to promote and implement cost-
effective waste reduction.
A new FAR subpart 23.1, Sustainable Acquisition, is added to
implement section 2(h) and section 18 of E.O. 13514. Federal agencies,
with certain exceptions or exemptions, are required to advance
sustainable acquisition by ensuring that 95 percent of new contract
actions (including those for construction) contain requirements for
products that are designated as energy-efficient, water-efficient,
biobased, environmentally preferable (e.g., EPEAT-registered, non-toxic
or less toxic alternatives), non-ozone depleting, or those that contain
recovered materials. A new definition for ``contract action'' is added
to the new FAR subpart 23.1.
Changes to FAR subpart 23.2, Energy and Water Efficiency and
Renewable Energy, include updates to the authorities and policy.
Sections (2)(d) and 14 of E.O. 13514, relating to the use and
management of water through water-efficient means, are implemented in
FAR subpart 23.2.
FAR 23.403 is revised to require agencies to purchase recycled
content and biobased products or require them in the acquisition of
services; the delivery, use, or furnishing of such products, which must
meet, but may exceed, the minimum recycled or biobased content of an
United States Environmental Protection Agency (EPA)- or United States
Department of Agriculture-designated product.
Under FAR subpart 23.8, agencies are required to substitute safe
alternatives to ozone-depleting substances. This subpart is revised to
inform agencies that EPA's Significant New Alternatives Policy (SNAP)
program (available at http://www.epa.gov/ozone/snap) has a list of safe
alternatives to ozone-depleting substances.
DoD, GSA, and NASA deleted the content of FAR subpart 23.9, which
required contractors to report to agencies compliance with the toxic
chemical release reporting. E.O. 13148 required contractors to affirm
compliance with toxic chemical release reporting requirements. E.O.
13148 was revoked by E.O. 13423. The associated clauses at FAR 52.223-
13 and 52.223-14 are also deleted. Toxic chemical release reporting
remains a requirement under environmental statutes and regulations, but
the coverage in the FAR and the contract clauses are being deleted. FAR
subpart 23.9 now requires contractor compliance with an agency's
environmental management system. A new clause is prescribed to meet
this requirement for contractor operation of Government-owned or -
leased facilities in the United States, unless the agency head
determines that use of the clause is in the interest of the facilities
not located in the United States.
The requirement to implement high-performance sustainable building
design, construction, renovation, repair, operation, and management
stated in E.O. 13514 is included in FAR 36.104. In addition, new
definitions are added at FAR 36.001, and a Web site is provided for
accessing the ``Guiding Principles for Federal Leadership in High
Performance and Sustainable Buildings.''
This interim rule adds language at FAR 37.102 requiring agencies to
ensure that service contracts that require the delivery, use, or
furnishing of products are consistent with FAR part 23.
To promote electronics stewardship, the policy at FAR 39.101
implements provisions of section 2(i) of E.O. 13514 to require agencies
to enable power management, double-sided printing, and other energy-
efficient or environmentally preferable features on all agency
electronic products. The policy also requires agencies to employ best
management practices for energy-efficient management of servers and
Federal data centers.
FAR part 52 is revised to incorporate the policies reflected in
E.O. 13514 and E.O. 13423. The modified clauses include--
FAR 52.204-4, Printed or Copied Double-Sided Postconsumer
Fiber Paper;
FAR 52.204-8, Annual Representations and Certifications;
FAR 52.213-4, Terms and Conditions--Simplified
Acquisitions (Other Than Commercial Items);
FAR 52.223-5, Pollution Prevention and Right-to-Know
Information; and
FAR 52.223-10, Waste Reduction Program.
Additionally, DoD, GSA, and NASA added the clause at FAR 52.223-19 to
address contractor compliance with environmental management systems.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this interim rule to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because it is only emphasizing existing requirements. The
majority of the requirements of E.O. 13423 and E.O. 13514 have been
implemented through previous Executive orders, laws, and sustainable
programs. DoD, GSA, and NASA recognize that the rule may have overall
pluses that create opportunities for niche products for small
businesses because agencies have to ensure that 95 percent of new
contract actions advance sustainable acquisition, but the number
[[Page 31397]]
of entities affected, and the extent to which they will be affected, is
not expected to be significant. The clause requiring contractors to
comply with an agency's environmental management system was required
through E.O. 13148. DoD, GSA, and NASA believe that this requirement
may affect small entities performing contracts for those agencies that
have not fully implemented an environmental management system, but the
number of entities affected, and the extent to which they will be
affected, is not expected to be significant. Therefore, an Initial
Regulatory Flexibility Analysis has not been performed.
DoD, GSA, and NASA invite comments from small business concerns and
other interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2010-001) in
all correspondence.
IV. Paperwork Reduction Act
The Paperwork Reduction Act does apply because this interim rule
removes the requirement that governed contractor compliance with toxic
chemical release reporting. Provisions relevant to toxic chemical
release reporting have been deleted from the FAR by deleting FAR
clauses 52.223-13 and 52.223-14. A change notice will be submitted to
cancel this requirement under OMB Clearance 9000-0139. The collection
requirements remain unchanged for FAR clause 52.223-5, covered by OMB
Clearance 9000-0137, Pollution Prevention and Right-to-Know
Information.
V. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because this rule implements E.O. 13514 and E.O. 13423,
already in effect. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-
3(b), DoD, GSA, and NASA will consider public comments received in
response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 1, 2, 4, 5, 7, 11, 12, 13, 23, 36,
37, 39, and 52
Government procurement.
Dated: May 18, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 2, 4, 5, 7, 11,
12, 13, 23, 36, 37, 39, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 1, 2, 4, 5, 7, 11, 12, 13,
23, 36, 37, 39, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106, in the table following the introductory text,
by removing FAR segments ``23.9'', ``52.223-13'', and ``52.223-14'' and
their corresponding OMB Control Number ``9000-0139''.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
3. Amend section 2.101 in paragraph (b)(2) by--
0
a. Revising the definition ``Renewable energy'';
0
b. Adding, in alphabetical order, the definition ``Sustainable
acquisition'';
0
c. In the definition ``United States'' redesignating paragraphs (7),
(8), and (9) as paragraphs (8), (9), and (10), respectively; and adding
a new paragraph (7); and
0
d. Adding, in alphabetical order, the definition ``Water consumption
intensity.''
The revised and added text reads as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Renewable energy means energy produced by solar, wind, geothermal,
biomass, landfill gas, ocean (including tidal, wave, current, and
thermal), municipal solid waste, or new hydroelectric generation
capacity achieved from increased efficiency or additions of new
capacity at an existing hydroelectric project (Energy Policy Act of
2005, 42 U.S.C. 15852).
* * * * *
Sustainable acquisition means acquiring goods and services in order
to create and maintain conditions--
(1) Under which humans and nature can exist in productive harmony;
and
(2) That permit fulfilling the social, economic, and other
requirements of present and future generations.
* * * * *
United States * * *
(7) For use in part 23, see definition at 23.001.
* * * * *
Water consumption intensity means water consumption per square foot
of building space.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
0
4. Revise section 4.302 to read as follows:
4.302 Policy.
(a) Section 3(a) of E.O. 13423, Strengthening Federal
Environmental, Energy, and Transportation Management, directs agencies
to implement waste prevention. In addition, section 2(e) of E.O. 13514,
Federal Leadership in Environmental, Energy, and Economic Performance,
directs agencies to eliminate waste. Electronic commerce methods (see
4.502) and double-sided printing and copying are best practices for
waste prevention.
(b) When electronic commerce methods (see 4.502) are not used,
agencies shall require contractors to submit paper documents to the
Government relating to an acquisition printed or copied double-sided on
at least 30 percent postconsumer fiber paper whenever practicable. If
the contractor cannot print or copy double-sided, it shall print or
copy single-sided on at least 30 percent postconsumer fiber paper.
0
5. Amend section 4.602 by removing from paragraph (a)(2) ``contract;
and'' and adding ``contract;'' in its place; redesignating paragraph
(a)(3) as paragraph (a)(4); and adding a new paragraph (a)(3) to read
as follows:
4.602 General.
(a) * * *
(3) A means of measuring and assessing the effect of Federal
contracting for promoting sustainable technologies, materials,
products, and high-performance sustainable buildings. This is
accomplished by collecting and reporting agency data on sustainable
acquisition, including types of products purchased, the purchase costs,
and the exceptions used for other than sustainable acquisition; and
* * * * *
4.1202 [Amended]
0
6. Amend section 4.1202 by removing paragraph (u); and redesignating
[[Page 31398]]
paragraphs (v) through (cc) as paragraphs (u) through (bb),
respectively.
PART 5--PUBLICIZING CONTRACT ACTIONS
0
7. Amend section 5.207 by redesignating paragraphs (c)(11) through
(c)(18) as paragraphs (c)(12) through (c)(19), respectively; and adding
a new paragraph (c)(11) to read as follows:
5.207 Preparation and transmittal of synopses.
* * * * *
(c) * * *
(11) Sustainable acquisition requirements (or a description of
high-performance sustainable building practices required, if for
design, construction, renovation, repair, or deconstruction) (see parts
23 or 36).
* * * * *
PART 7--ACQUISITION PLANNING
0
8. Amend section 7.103 by revising paragraph (p) to read as follows:
7.103 Agency-head responsibilities.
* * * * *
(p) Ensuring that agency planners--
(1) Specify needs for printing and writing paper consistent with
the 30 percent postconsumer fiber minimum content standards specified
in section 2(d)(ii) of Executive Order 13423 of January 24, 2007,
Strengthening Federal Environmental, Energy, and Transportation
Management, and section 2(e)(iv) of Executive Order 13514 of October 5,
2009 (see 11.303);
(2) Comply with the policy in 11.002(d) regarding procurement of:
biobased products, products containing recovered materials,
environmentally preferable products and services (including Electronic
Product Environmental Assessment Tool (EPEAT)-registered electronic
products, nontoxic or low-toxic alternatives), ENERGY STAR[reg] and
Federal Energy Management Program-designated products, renewable
energy, water-efficient products, and non-ozone depleting products;
(3) Comply with the Guiding Principles for Federal Leadership in
High-Performance and Sustainable Buildings (Guiding Principles), for
the design, construction, renovation, repair, or deconstruction of
Federal buildings. The Guiding Principles can be accessed at http://
www.wbdg.org/pdfs/hpsb_guidance.pdf; and
(4) Require contractor compliance with Federal environmental
requirements, when the contractor is operating Government-owned
facilities or vehicles, to the same extent as the agency would be
required to comply if the agency operated the facilities or vehicles.
* * * * *
7.105 [Amended]
0
9. Amend section 7.105 by removing from paragraph (b)(17)
``contracts.'' and adding ``contracts (see 11.002 and 11.303).'' in its
place.
PART 11--DESCRIBING AGENCY NEEDS
0
10. Amend section 11.002 by revising paragraphs (d)(1) and (d)(2)
introductory text 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 sustainable acquisition (see subpart 23.1) including--
(i) Energy-efficient and water-efficient services and products
(including products containing energy-efficient standby power devices)
(subpart 23.2);
(ii) Products and services that utilize renewable energy
technologies (subpart 23.2);
(iii) Products containing recovered materials (subpart 23.4);
(iv) Biobased products (subpart 23.4);
(v) Environmentally preferable products and services, including
EPEAT-registered electronic products and non-toxic or low-toxic
alternatives (subpart 23.7); and
(vi) Non-ozone depleting substances (subpart 23.8).
(2) Unless an exception applies and is documented by the requiring
activity, Executive agencies shall, to the maximum practicable, require
the use of products and services listed in paragraph (d)(1) of this
section when--
* * * * *
0
11. Revise section 11.303 to read as follows:
11.303 Special requirements for paper.
(a) The following applies when agencies acquire paper in the United
States (as defined in 23.001):
(1) Section 2(d)(ii) of Executive Order 13423, Strengthening
Federal Environmental, Energy, and Transportation Management,
establishes a 30 percent postconsumer fiber content standards for
agency paper use. Section 2(d)(ii) requires that an agency's paper
products must meet or exceed the minimum content standard.
(2) Section 2(e)(iv) of Executive Order 13514 requires acquisition
of uncoated printing and writing paper containing at least 30 percent
postconsumer fiber.
(b) Exceptions. If paper under paragraphs (a)(1) or (a)(2) of this
section containing at least 30 percent postconsumer fiber is not
reasonably available, does not meet reasonable performance
requirements, or is only available at an unreasonable price, then the
agency must purchase--
(1) Printing and writing paper containing no less than 20 percent
postconsumer fiber; or
(2) Paper, other than printing and writing paper, with the maximum
practicable percentage of postconsumer fiber that is reasonably
available at a reasonable price and that meets reasonable performance
requirements.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
12. Amend section 12.102 by revising paragraph (c) to read as follows:
12.102 Applicability.
* * * * *
(c) Contracts for the acquisition of commercial items are subject
to the policies in other parts of the FAR. When a policy in another
part of the FAR is inconsistent with a policy in this part, this part
12 shall take precedence for the acquisition of commercial items.
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
13. Amend section 13.201 by revising paragraph (f) to read as follows:
13.201 General.
* * * * *
(f) The procurement requirements in subparts 23.1, 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
0
14. Revise section 23.000 to read as follows:
23.000 Scope.
This part prescribes acquisition policies and procedures supporting
the Government's program for ensuring a drug-free workplace, for
protecting and improving the quality of the environment, and to foster
markets for sustainable technologies, materials,
[[Page 31399]]
products, and services, and encouraging the safe operation of vehicles
by--
(a) Reducing or preventing pollution;
(b) Managing efficiently and reducing energy and water use in
Government facilities;
(c) Using renewable energy and renewable energy technologies;
(d) Acquiring energy-efficient and water-efficient products and
services, environmentally preferable (including EPEAT-registered, and
non-toxic and less toxic) products, products containing recovered
materials, non-ozone depleting products, and biobased products;
(e) Requiring contractors to identify hazardous materials;
(f) Encouraging contractors to adopt and enforce policies that ban
text messaging while driving; and
(g) Requiring contractors to comply with agency environmental
management systems.
0
15. Revise section 23.001 to read as follows:
23.001 Definitions.
As used in this part--
Environmental means environmental aspects of internal agency
operations and activities, including those aspects related to energy
and transportation functions.
Greenhouse gases means carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.
Toxic chemical means a chemical or chemical category listed in 40
CFR 372.65.
United States, except as used in subpart 23.10, means--
(1) The fifty States;
(2) The District of Columbia;
(3) The commonwealths of Puerto Rico and the Northern Mariana
Islands;
(4) The territories of Guam, American Samoa, and the United States
Virgin Islands; and
(5) Associated territorial waters and airspace.
0
16. Add section 23.002 to read as follows:
23.002 Policy.
Executive Order 13423 sections 3(e) and (f) require that contracts
for contractor operation of a Government-owned or -leased facility and
contracts for support services at a Government-owned or -operated
facility include provisions that obligate the contractor to comply with
the requirements of the order to the same extent as the agency would be
required to comply if the agency operated or supported the facility.
Compliance includes developing programs to promote and implement cost-
effective waste reduction.
0
17. Add subpart 23.1 to read as follows:
Subpart 23.1--Sustainable Acquisition Policy
Sec.
23.101 Definition.
23.102 Authorities.
23.103 Sustainable acquisitions.
23.104 Exceptions.
23.105 Exemption authority.
Subpart 23.1--Sustainable Acquisition Policy
23.101 Definition.
As used in this subpart--
Contract action means any oral or written action that results in
the purchase, rent, or lease of supplies or equipment, services, or
construction using appropriated dollars, including purchases below the
micro-purchase threshold. Contract action does not include grants,
cooperative agreements, other transactions, real property leases,
requisitions from Federal stock, training authorizations, or other non-
FAR based transactions.
23.102 Authorities.
(a) Executive Order 13423 of January 24, 2007, Strengthening
Federal Environmental, Energy, and Transportation Management.
(b) Executive Order 13514 of October 5, 2009, Federal Leadership in
Environmental, Energy, and Economic Performance.
(c) All of the authorities specified in subparts 23.2, 23.4, 23.7,
23.8, 23.9, and 23.10.
23.103 Sustainable acquisitions.
(a) Federal agencies shall advance sustainable acquisition by
ensuring that 95 percent of new contract actions for the supply of
products and for the acquisition of services (including construction)
require that the products are--
(1) Energy-efficient (ENERGY STAR[reg] or Federal Energy Management
Program (FEMP)-designated);
(2) Water-efficient;
(3) Biobased;
(4) Environmentally preferable (e.g., EPEAT-registered, or non-
toxic or less toxic alternatives);
(5) Non-ozone depleting; or
(6) Made with recovered materials.
(b) The required products in the contract actions for services
include products that are--
(1) Delivered to the Government during performance;
(2) Acquired by the contractor for use in performing services at a
Federally-controlled facility; or
(3) Furnished by the contractor for use by the Government.
(c) The required products in the contract actions must meet agency
performance requirements.
(d) For purposes of meeting the 95 percent sustainable acquisition
requirement, the term ``contract actions'' includes new contracts (and
task and delivery orders placed against them) and new task and delivery
orders on existing contracts.
23.104 Exceptions.
This subpart does not apply to the following acquisitions:
(a) Contracts performed outside of the United States, unless the
agency head determines that such application is in the interest of the
United States.
(b) Weapon systems.
23.105 Exemption authority.
(a) The head of an agency may exempt--
(1) Intelligence activities of the United States, and related
personnel, resources, and facilities, to the extent the Director of
National Intelligence or agency head determines it necessary to protect
intelligence sources and methods from unauthorized disclosure;
(2) Law enforcement activities of that agency and related
personnel, resources, and facilities, to the extent the head of an
agency determines it necessary to protect undercover operations from
unauthorized disclosure;
(3) Law enforcement, protective, emergency response, or military
tactical vehicle fleets of that agency; and
(4) Agency activities and facilities in the interest of national
security.
(b) If the head of the agency issues an exemption under paragraph
(a) of this section, the agency must notify the Chair of the Council on
Environmental Quality in writing within 30 days of the issuance of the
exemption.
(c) The agency head may submit through the Chair of the Council on
Environmental Quality a request for exemption of an agency activity
other than those activities listed in paragraph (a) of this section and
related personnel, resources, and facilities.
0
18. Revise section 23.201 to read as follows:
23.201 Authorities.
(a) Energy Policy and Conservation Act (42 U.S.C. 6361(a)(1)) and
Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, et
seq.).
(b) National Energy Conservation Policy Act (42 U.S.C. 8253, 8259b,
8262g, and 8287).
(c) Section 706 of Division D, Title VII of the Omnibus
Appropriations Act, 2009 (Pub. L. 111-8).
[[Page 31400]]
(d) Title VI of the Clean Air Act, as amended (42 U.S.C. 7671, et
seq.).
(e) Executive Order 11912 of April 13, 1976, Delegations of
Authority under the Energy Policy and Conservation Act.
(f) Executive Order 13221 of July 31, 2001, Energy-Efficient
Standby Power Devices.
(g) Executive Order 13423 of January 24, 2007, Strengthening
Federal Environmental, Energy, and Transportation Management.
(h) Executive Order 13514 of October 5, 2009, Federal Leadership in
Environmental, Energy, and Economic Performance.
0
19. Revise section 23.202 to read as follows:
23.202 Policy.
(a) Introduction. The Government's policy is to acquire supplies
and services that promote a clean energy economy that increases our
Nation's energy security, safeguards the health of our environment, and
reduces greenhouse gas emissions from direct and indirect Federal
activities. To implement this policy, Federal acquisitions will foster
markets for sustainable technologies, products, and services. This
policy extends to all acquisitions, including those below the
simplified acquisition threshold and those at or below the micro-
purchase threshold (including those made with a Government purchase
card).
(b) Water-efficient. In accordance with Executive Order 13514,
dated October 5, 2009, Federal Leadership in Environmental, Energy, and
Economic Performance, it is the policy and objective of the Government
to use and manage water through water-efficient means by--
(1) Reducing potable water consumption intensity to include low-
flow fixtures and efficient cooling towers;
(2) Reducing agency, industry, landscaping, and agricultural water
consumption; and
(3) Storm water management in accordance with section 438 of the
Energy Independence and Security Act of 2007 (42 U.S.C. 17094) as
implemented in http://www.epa.gov/nps/lid/section438.
0
20. Amend section 23.205 by revising paragraph (a) to read as follows:
23.205 Energy-savings performance contracts.
(a) Agencies should make maximum use of the authority provided in
the National Energy Conservation Policy Act (42 U.S.C. 8287) to use an
energy-savings performance contract (ESPC), when life-cycle cost-
effective, to reduce energy use and cost in the agency's facilities and
operations.
* * * * *
0
21. Amend section 23.402 by revising paragraphs (c) and (d) and adding
paragraph (e) to read as follows:
23.402 Authorities.
* * * * *
(c) Executive Order 13423 of January 24, 2007, Strengthening
Federal Environmental, Energy, and Transportation Management.
(d) The Energy Policy Act of 2005, Public Law 109-58.
(e) Executive Order 13514 of October 5, 2009, Federal Leadership in
Environmental, Energy, and Economic Performance.
0
22. Revise section 23.403 to read as follows:
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 purchase these products or
require in the acquisition of services, the delivery, use, or
furnishing (see 23.103(b)) of such products. Agency contracts should
specify that these products are composed of the highest percent of
recovered material or biobased content practicable, or at least meet,
but may exceed, the minimum recovered materials or biobased content of
an EPA- or USDA-designated product. Agencies shall purchase these
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).
0
23. Amend section 23.702 by removing paragraphs (d), (e), and (f);
redesignating paragraphs (g), (h), and (i) as paragraphs (d), (e), and
(f), respectively; and adding a new paragraph (g) to read as follows:
23.702 Authorities.
* * * * *
(g) Executive Order 13514 of October 5, 2009, Federal Leadership in
Environmental, Energy, and Economic Performance.
23.704 [Removed]
0
24. Remove section 23.704.
23.705 and 23.706 [Redesignated as 23.704 and 23.705]
0
25a. Redesignate sections 23.705 and 23.706 as sections 23.704 and
23.705, respectively.
23.705 [Amended]
0
25b. In newly redesignated section 23.705, remove from paragraph (b)(1)
``23.705(c)'' and add ``23.704(c)'' in its place.
0
26. Revise section 23.801 to read as follows:
23.801 Authorities.
(a) Title VI of the Clean Air Act (42 U.S.C. 7671, et seq.).
(b) Section 706 of Division D, Title VII of the Omnibus
Appropriations Act, 2009 (Pub. L. 111-8).
(c) Executive Order 13423 of January 24, 2007, Strengthening
Federal Environmental, Energy, and Transportation Management.
(d) Executive Order 13514 of October 5, 2009, Federal Leadership in
Environmental, Energy, and Economic Performance.
(e) Environmental Protection Agency (EPA) regulations, Protection
of Stratospheric Ozone (40 CFR Part 82).
0
27. Amend section 23.803 by revising paragraphs (b)(1) and (2) to read
as follows:
23.803 Policy.
* * * * *
(b) * * *
(1) Comply with the requirements of Title VI of the Clean Air Act,
Section 706 of Division D, Title VII of Public Law 111-8, Executive
Order 13423, Executive Order 13514, and 40 CFR 82.84(a)(2), (3), (4),
and (5); and
(2) Substitute safe alternatives to ozone-depleting substances, as
identified under 42 U.S.C. 7671k, to the maximum extent practicable, as
provided in 40 CFR 82.84(a)(1), except in the case of Class I
substances being used for specified essential uses, as identified under
40 CFR 82.4(r). EPA's Significant New Alternatives Policy (SNAP)
program (available at http://www.epa.gov/ozone/snap) has a list of safe
alternatives to ozone-depleting substances.
0
28. Revise subpart 23.9 to read as follows:
Subpart 23.9--Contractor Compliance With Environmental Management
Systems
Sec.
23.900 Scope.
23.901 Authority.
23.902 Policy.
23.903 Contract clause.
[[Page 31401]]
Subpart 23.9--Contractor Compliance With Environmental Management
Systems
23.900 Scope.
This subpart implements the environmental management systems
requirements for contractors.
23.901 Authority.
(a) Executive Order 13423 of January 24, 2007, Strengthening
Federal Environmental, Energy, and Transportation Management.
(b) Executive Order 13514 of October 5, 2009, Federal Leadership in
Environmental, Energy, and Economic Performance.
23.902 Policy.
(a) Agencies shall implement environmental management systems (EMS)
at all appropriate organizational levels. Where contractor activities
affect an agency's environmental management aspects, EMS requirements
shall be included in contracts to ensure proper implementation and
execution of EMS roles and responsibilities.
(b) The contracting officer shall--
(1) Specify the EMS directives with which the contractor must
comply; and
(2) Ensure contractor compliance to the same extent as the agency
would be required to comply, if the agency operated the facilities or
vehicles.
23.903 Contract clause.
The contracting officer shall insert the clause at 52.223-19,
Compliance With Environmental Management Systems, in all solicitations
and contracts for contractor operation of Government-owned or -leased
facilities or vehicles, located in the United States. For facilities
located outside the United States, the agency head may determine that
use of the clause is in the best interest of the Government.
0
29. Amend section 23.1001 by revising paragraph (c); and adding
paragraph (d) to read as follows:
23.1001 Authorities.
* * * * *
(c) Executive Order 13423 of January 24, 2007, Strengthening
Federal Environmental, Energy, and Transportation Management.
(d) Executive Order 13514 of October 5, 2009, Federal Leadership in
Environmental, Energy, and Economic Performance.
23.1003 [Amended]
0
30. Amend section 23.1003 by removing the definition ``Priority
chemical''.
0
31. Revise section 23.1004 to read as follows:
23.1004 Requirements.
(a) Federal facilities are required to comply with--
(1) The emergency planning and toxic release reporting requirements
in EPCRA and PPA; and
(2) The toxic chemical, and hazardous substance release and use
reduction goals of sections 2(e) and 3(a)(vi) of Executive Order 13423.
(b) Pursuant to EPCRA, PPA, E.O. 13423, and any agency implementing
procedures, every new contract that provides for performance on a
Federal facility shall require the contractor to provide information
necessary for the Federal agency to comply with the--
(1) Requirements in paragraph (a) of this section; and
(2) Requirements for EMSs and FCAs if the place of performance is
at a Federal facility designated by the agency.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
32. Add section 36.001 to read as follows:
36.001 Definitions.
As used in this part--
Construction and demolition materials and debris means materials
and debris generated during construction, renovation, demolition, or
dismantling of all structures and buildings and associated
infrastructure.
Diverting means redirecting materials that might otherwise be
placed in the waste stream to recycling or recovery, excluding
diversion to waste-to-energy facilities.
0
33. Revise section 36.104 to read as follows:
36.104 Policy.
(a) Unless the traditional acquisition approach of design-bid-build
established under the Brooks Architect-Engineers Act (40 U.S.C. 1101 et
seq.) or another acquisition procedure authorized by law is used, the
contracting officer shall use the two-phase selection procedures
authorized by 10 U.S.C. 2305a or 41 U.S.C. 253m when entering into a
contract for the design and construction of a public building,
facility, or work, if the contracting officer makes a determination
that the procedures are appropriate for use (see subpart 36.3). Other
acquisition procedures authorized by law include the procedures
established in this part and other parts of this chapter and, for DoD,
the design-build process described in 10 U.S.C. 2862.
(b) Agencies shall implement high-performance sustainable building
design, construction, renovation, repair, commissioning, operation and
maintenance, management, and deconstruction practices so as to--
(1) Ensure that all new construction, major renovation, or repair
and alteration of Federal buildings complies with the Guiding
Principles for Federal Leadership in High-Performance and Sustainable
Buildings (available at http://www.wbdg.org/pdfs/hpsb_guidance.pdf);
(2) Pursue cost-effective, innovative strategies, such as highly
reflective and vegetated roofs, to minimize consumption of energy,
water, and materials;
(3) Identify alternatives to renovation that reduce existing
assets' deferred maintenance costs;
(4) Ensure that rehabilitation of Federally-owned historic
buildings utilizes best practices and technologies in retrofitting to
promote long-term viability of the buildings; and
(5) Ensure pollution prevention and eliminate waste by diverting at
least 50 percent of construction and demolition materials and debris by
the end of Fiscal Year 2015.
PART 37--SERVICE CONTRACTING
0
34. Amend section 37.102 by adding paragraph (i) to read as follows:
37.102 Policy.
* * * * *
(i) Agencies shall ensure that service contracts that require the
delivery, use, or furnishing of products are consistent with part 23.
PART 39--ACQUISITION OF INFORMATION TECHNOLOGY
0
35. Amend section 39.101 by revising paragraph (b)(1) to read as
follows:
39.101 Policy.
* * * * *
(b)(1) In acquiring information technology, agencies shall identify
their requirements pursuant to--
(i) OMB Circular A-130, including consideration of security of
resources, protection of privacy, national security and emergency
preparedness, accommodations for individuals with disabilities, and
energy efficiency;
(ii) Electronic Product Environmental Assessment Tool (EPEAT)
standards (see 23.704);
(iii) Policies to enable power management, double-sided printing,
and other energy-efficient or environmentally preferable features on
all agency electronic products; and
[[Page 31402]]
(iv) Best management practices for energy-efficient management of
servers and Federal data centers.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
36. Revise section 52.204-4 to read as follows:
52.204-4 Printed or Copied Double-Sided on Postconsumer Fiber Content
Paper.
As prescribed in 4.303, insert the following clause:
Printed or Copied Double-Sided on Postconsumer Fiber Content Paper (May
2011)
(a) Definitions. As used in this clause--
Postconsumer fiber means--(1) Paper, paperboard, and fibrous
materials from retail stores, office buildings, homes, and so forth,
after they have passed through their end-usage as a consumer item,
including: used corrugated boxes; old newspapers; old magazines;
mixed waste paper; tabulating cards; and used cordage; or
(2) All paper, paperboard, and fibrous materials that enter and
are collected from municipal solid waste; but not
(3) Fiber derived from printers' over-runs, converters' scrap,
and over-issue publications.
(b) The Contractor is required to submit paper documents, such
as offers, letters, or reports that are printed or copied double-
sided on paper containing at least 30 percent postconsumer fiber,
whenever practicable, when not using electronic commerce methods to
submit information or data to the Government.
(End of clause)
0
37. Amend section 52.204-8 by revising the date of the provision;
removing paragraph (c)(2)(vi); and redesignating paragraphs (c)(2)(vii)
and (viii) as paragraphs (c)(2)(vi) and (vii), respectively.
The revised text reads as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (May 2011)
* * * * *
0
38. Amend section 52.213-4 by revising the date of the clause and
paragraph (b)(1)(vii) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (May 2011)
* * * * *
(b) * * *
(1) * * *
(vii) 52.223-5, Pollution Prevention and Right-to-Know
Information (May 2011) (E.O. 13423) (Applies to services performed
on Federal facilities).
* * * * *
0
39. Amend section 52.223-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a) the definition ``Priority chemical'';
0
c. Revising paragraphs (b) and (c)(6);
0
d. Revising the date of Alternate I and paragraph (c)(7); and
0
e. Revising the date of Alternate II and paragraph (c)(7).
The revised text reads as follows:
52.223-5 Pollution Prevention and Right-to-Know Information.
* * * * *
Pollution Prevention and Right-to-Know Information (May 2011)
* * * * *
(b) Federal facilities are required to comply with the
provisions of the Emergency Planning and Community Right-to-Know Act
of 1986 (EPCRA) (42 U.S.C. 11001-11050), and the Pollution
Prevention Act of 1990 (PPA) (42 U.S.C. 13101-13109).
(c) * * *
(6) The toxic chemical and hazardous substance release and use
reduction goals of section 2(e) of Executive Order 13423 and of
Executive Order 13514.
* * * * *
Alternate I (May 2011). * * *
(c)(7) The environmental management system as described in
section 3(b) of E.O. 13423 and 2(j) of E.O. 13514.
Alternate II (May 2011). * * *
(c)(7) The facility compliance audits as described in section
3(c) of E.O. 13423.
0
40. Amend section 52.223-10 by revising the introductory paragraph, the
date of the clause, and the first sentence of paragraph (b) to read as
follows:
52.223-10 Waste Reduction Program.
As prescribed in 23.705(a), insert the following clause:
Waste Reduction Program (May 2011)
* * * * *
(b) Consistent with the requirements of section 3(e) of
Executive Order 13423, the Contractor shall establish a program to
promote cost-effective waste reduction in all operations and
facilities covered by this contract. * * *
52.223-13 and 52.223-14 [Removed and Reserved]
0
41. Remove and reserve sections 52.223-13 and 52.223-14.
0
42. Amend section 52.223-16 by revising the introductory paragraph, and
the introductory paragraph of Alternate I to read as follows:
52.223-16 IEEE 1680 Standard for the Environmental Assessment of
Personal Computer Products.
As prescribed in 23.705(b)(1), insert the following clause:
* * * * *
Alternate I (Dec 2007). As prescribed in 23.705(b)(2),
substitute the following paragraph (b) for paragraph (b) of the
basic clause:
* * * * *
0
43. Add section 52.223-19 to read as follows:
52.223-19 Compliance with Environmental Management Systems.
As prescribed in 23.903, insert the following clause:
Compliance With Environmental Management Systems (May 2011)
The Contractor's work under this contract shall conform with all
operational controls identified in the applicable agency or facility
Environmental Management Systems and provide monitoring and
measurement information necessary for the Government to address
environmental performance relative to the goals of the Environmental
Management Systems.
(End of clause)
[FR Doc. 2011-12851 Filed 5-27-11; 8:45 am]
BILLING CODE 6820-EP-P