[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Rules and Regulations]
[Pages 31395-31402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12851]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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