[Federal Register: July 13, 2011 (Volume 76, Number 134)]
[Proposed Rules]
[Page 41179-41181]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy11-30]
[[Page 41179]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 11, 23, and 52
[FAR Case 2010-004; Docket 2010-0004; Sequence 1]
RIN 9000-AM03
Federal Acquisition Regulation; Biobased Procurements
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement changes to the Farm Security
and Rural Investment Act. The rule proposes to require contractors to
report the biobased products purchased under service and construction
contracts. This will allow Federal agencies to monitor compliance with
the Federal preference for purchasing biobased products.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before September 12, 2011 to be considered in the formation of the
final rule.
ADDRESSES: Submit comments in response to FAR case 2010-004 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2010-004'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2010-004.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2010-004'' 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 FAR Case 2010-
004, 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 FAR Case 2010-
004.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the Federal Acquisition
Regulation (FAR) to implement changes to the Farm Security and Rural
Investment Act. The rule proposes to require contractors to report the
biobased products purchased under service and construction contracts.
This will allow Federal agencies to monitor compliance with the Federal
preference for purchasing biobased products.
A. Overview
Section 9002 of the Farm Security and Rural Investment Act of 2002,
codified at 7 U.S.C. 8102, was amended by the Food, Conservation, and
Energy Act of 2008 (Pub. L. 110-246). 7 U.S.C. 8102 requires Federal
agencies to establish a procurement program, develop procurement
specifications, procure biobased products, and give preference to those
items that are composed of the highest percentage of biobased products
practicable or those products that comply with the regulations issued
under section 103 of Public Law 100-556 (42 U.S.C. 6914b-1). 7 U.S.C.
8102 allows flexibility to procuring agencies not to procure products
if the product cannot be acquired--
(i) Within a time frame providing for compliance with the contract
performance schedule;
(ii) Meeting reasonable performance requirements; or
(iii) At a reasonable price.
The Biobased Products Preference Program was originally implemented
in the FAR on November 7, 2007 (72 FR 63040). This proposed rule will
implement additional provisions of 7 U.S.C. 8102 as amended by Public
Law 110-246.
B. Invitation for Specific Comments
The rule is being published as a proposed rule because the specific
method of collecting the information required by Public Law 110-246 is
not specified in the statute but is necessary for implementing in
Federal contracts. This proposed rule identifies the specific proposed
method.
(1) DoD, GSA, and NASA invite comments on the least burdensome,
most cost-efficient method to collect this information. DoD, GSA, and
NASA are particularly interested in current practices to track
purchases of biobased products.
(a) How is the purchase and use of biobased products tracked and to
what level of detail are they tracked, e.g., product type, product
name, quantity, price?
(b) Is the tracking automated or manual?
2. Comments are solicited on the level of effort required to
collect and report this information under a specific federal contract.
Is the purchase and use of biobased products allocated to a specific
contract as a direct cost or as an overhead costs?
(3) The estimated burden includes Fiscal Year 2009 and 2010 Federal
Procurement Data System contract actions selected from the following
Product Service Codes: A--Research and Development; F--Natural
Resources Management; J--Maintenance, Repair, and Rebuilding of
Equipment; M--Operation of Government-Owned Facility; S--Utilities and
Housekeeping Services; T--Photographic, Mapping, Printing, and
Publication Services; Y--Construction of Structures and Facilities; and
Z--Maintenance, Repair or Alteration of Real Property.
(a) Are there certain contracts where biobased items are not
typically purchased, such as information technology services, or should
all services be included in the information collection?
(b) What impact or estimated burden would there be on
subcontractors under contract actions which include FAR 52.223-2? What
would be the average number of subcontractors on such contract actions?
(4) Comments are solicited on any new technologies, including
Internet-based technologies, that would reduce the burden for this
information collection and afford significant opportunities for
reducing costs and increasing simplification of the collection.
II. Proposed Changes to the FAR
A. Definition
The definition of ``biobased product'' is revised in FAR part 2 in
accordance with the Public Law 110-246. A corresponding change is made
at FAR 23.404(e).
B. Limit on Data Collection
For biobased products, a prohibition was added at FAR 11.302(c)(2)
against agencies collecting more data than would typically be provided
by other business entities, other than data confirming the biobased
content of a product. At FAR 23.405(a)(3) a cross-
[[Page 41180]]
reference is added to FAR 11.302(c) to remind contracting officers that
when acquiring recovered material or biobased products, the contracting
officer may request information or data on such products, including on
the recycled or biobased content or related standards of the products.
C. Annual Report
FAR 52.223-2, Affirmative Procurement of Biobased Products Under
Service and Construction Contracts, is proposed for amendment to
require the contractor to report annually the product types and dollar
value of any biobased products purchased during the preceding fiscal
year on the contract.
The purpose of this information collection is to monitor Federal
agencies' compliance with 7 U.S.C. 8102, Federal Procurement of
Biobased Products. Agencies can internally track direct procurement of
biobased items. However, Federal agencies lack the ability to directly
track biobased products purchased under service and construction
contracts. The proposed information collection requirement is to track
biobased products purchased by contractors under service and
construction contracts.
III. 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.
IV. 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 the rule
requires that the contractor report on the product types and dollar
value of biobased products in the performance of a service or
construction contract. Where this information is not already available,
this may mean contractors will need to create an inventory management
system to track the product types and dollar value of biobased products
purchased for each contract. However, DoD, GSA, and NASA expect that
the impact will be minimal, because the existing clause being amended
already requires the contractor to make maximum use of biobased
products in the performance of a service and construction contract, and
the change does not impose any substantial requirements. Small
businesses are active suppliers of biobased products, and this rule may
serve to enhance their participation in this market.
In addition, the Small Business Administration's Office of Advocacy
estimates that compliance with environmental requirements is
significantly more costly to small businesses than large business. For
recent research on this topic, see http://www.sba.gov/sites/default/
files/rs371tot.pdf.
The Regulatory Secretariat has submitted a copy of the Interim
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the IRFA may
be obtained from the Regulatory Secretariat. The Councils 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 2010-004) in
correspondence.
The analysis is summarized as follows:
This rule implements 7 U.S.C. 8102 as amended by Public Law 110-
246, which establishes the policy that Federal agencies shall
establish a procurement program, develop procurement specifications,
procure biobased products, and give preference to those items that
are composed of the highest percentage of biobased products
practicable or those products that comply with the regulations
issued under section 103 of Public Law 100-556 (42 U.S.C. 6914b-1).
This rule imposes a reporting requirement on prime contractors
with construction or service contracts, unless the contract will not
involve the use of USDA-designated items.
The rule promotes the use of biobased products and requires an
annual report on the product types and dollar value of any USDA-
designated biobased products purchased in carrying out service and
construction contracts during the previous year. With regard to the
submission of the report, we estimate that 48,376 contractors will
be affected. Of those entities, approximately 35,927 are small
businesses.
V. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies because
the proposed rule contains information collection requirements.
Accordingly, the Regulatory Secretariat will submit a request for
approval of a new information collection requirement concerning
``Biobased Procurements'' to the Office of Management and Budget.
A. Annual Reporting Burden
Public reporting burden for this collection of information is
estimated to average 5 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated as follows:
Respondents: 48,376.
Responses per respondent: 5.
Total annual responses: 241,880.
Preparation hours per response: 5.
Total response burden hours: 1,209,400.
B. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than September 12, 2011 to: FAR Desk Officer, OMB, Room
10102, NEOB, Washington, DC 20503, and a copy to the General Services
Administration, Regulatory Secretariat (MVCB), Attn: Hada Flowers, 1275
First Street, NE., 7th Floor, Washington, DC 20417.
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 supporting statement from the
General Services Administration, Regulatory Secretariat (MVCB), 1275
First Street, NE., 7th Floor, Washington, DC 20417. Please cite OMB
Control Number 9000-0180, Biobased Procurements, in correspondence.
[[Page 41181]]
List of Subjects in 48 CFR Parts 2, 11, 23, and 52
Government procurement.
Dated: July 6, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 11,
23, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 11, 23, 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
Sec. 2.101 [Amended]
2. Amend section 2.101 by removing from paragraph (b)(2), in the
definition ``biobased product'', the words ``(including plant, animal,
and marine materials) or'' and adding ``and'' in its place.
PART 11--DESCRIBING AGENCY NEEDS
3. Amend section 11.302 by revising paragraph (c)(2) to read as
follows:
Sec. 11.302 Policy.
* * * * *
(c) * * *
(2) For biobased products, agencies may not require, as a condition
of purchase of such products, the vendor or manufacturer to provide
more data than would typically be provided by other business entities
offering products for sale to the agency, other than data confirming
the biobased content of a product (see 7 CFR 2902.8).
PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Sec. 23.404 [Amended]
4. Amend section 23.404 by removing from paragraph (e)(1) the words
``(including plant, animal, and marine materials)''.
5. Amend section 23.405 by revising paragraph (a)(2) and adding
(a)(3) to read as follows:
Sec. 23.405 Procedures.
(a) * * *
(2) Biobased products. Contracting officers should refer to USDA's
list of USDA-designated items (available through the Internet at http:/
/www.biopreferred.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.
(3) When acquiring recovered material or biobased products, the
contracting officer may request information or data on such products,
including on the recycled or biobased content or related standards of
the products (see 11.302(c)).
* * * * *
Sec. 23.406 [Amended]
6. Amend section 23.406 by removing from paragraph (b) ``http://
www.usda.gov/biopreferred'' and adding ``http://www.biopreferred.gov''
in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7. Amend section 52.223-2 by--
a. Revising the date of the clause;
b. Removing from paragraph (b) ``http://www.usda.gov/biopreferred''
and adding http://www.biopreferred.gov in its place; and
c. Adding paragraphs (c) and (d) to read as follows:
52.223-2 Affirmative Procurement of Biobased Products Under Service and
Construction Contracts
* * * * *
Affirmative Procurement of Biobased Products Under Service and
Construction Contracts (Date)
* * * * *
(c) In the performance of this contract, the Contractor shall--
(1) Report to the cognizant Contracting Officer and the agency
environmental manager on the product types and dollar value of any
USDA-designated biobased products purchased by the Contractor during
the previous year, between October 1 and September 30, in this
contract;
(2) Submit this report no later than--
(i) October 31 of each year during contract performance; and
(ii) At the end of contract performance; and
(iii) Contact the cognizant environmental manager to obtain the
preferred submittal format, if that format is not specified in this
contract.
(d) The cognizant environmental manager for this contract is: --
------------------. [Contracting Officer shall insert full name,
phone number, and email address or Web site for reporting.]
[FR Doc. 2011-17453 Filed 7-12-11; 8:45 am]
BILLING CODE 6820-EP-P