[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30197]
[[Page Unknown]]
[Federal Register: December 8, 1994]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 538, and 552
[APD 2800.12A CHGE 58]
General Services Administration Acquisition Regulation:
Contractor Identification of Products With Environmental Attributes
AGENCY: Office of Acquisition Policy, GSA.
ACTION: Final rule.
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SUMMARY: The General Services Administration Acquisition Regulation
(GSAR) is amended to revise section 501.105; revise the prescription
for the multiple award schedule (MAS) clause at 552.238-75,
Identification of Energy-Efficient Office Equipment and Supplies
Containing Recovered Materials or Other Environmental Attributes, to
require its use in all MAS solicitations and contracts for supplies;
and revise the clause to amend the definitions of energy-efficient
office equipment and recovered materials, add a definition of
remanufactured products, and make editorial changes.
EFFECTIVE DATE: December 16, 1994.
FOR FURTHER INFORMATION CONTACT:
Paul Linfield, Office of GSA Acquisition Policy (202) 501-1224.
SUPPLEMENTARY INFORMATION:
A. Public Comments
An interim rule and a proposed rule were published for public
comment in the Federal Register (59 FR 3657 dated January 26, 1994, and
59 FR 6231 dated February 10, 1994, respectively). Both were intended
to assist Federal agencies in satisfying requirements expressed in
various statutes and executive orders to consider energy-efficiency and
other environmental considerations in their procurement practices. Vice
President Gore's National Performance Review (NPR) also believed that
the GSA, as a major procuring agency and through its multiple awards
schedules programs, could provide encouragement to suppliers and assist
Federal agencies in meeting their statutory and executive order
responsibilities. Federal agencies use the GSA MAS contracts to satisfy
many of their supply requirements. In its report, Reinventing Federal
Procurement, the NPR included a recommendation that would have multiple
award schedule contractors identify energy-efficient products and
products with other environmental attributes. The GSA believes this
rule also implements the NPR recommendation.
Comments received from ten companies and organizations were
considered in formulating this final rule. These comments focused
primarily on definitions and informational aspects of the regulation.
One comment suggested substituting the term, ``environmentally
preferable,'' for ``environmental attributes'' and inclusion of
definitions for such terms as ``postconsumer material,''
``recyclable,'' ``recycling,'' and ``waste prevention'' in the
regulation. These terms from Executive Order 12873, Federal
Acquisition, Recycling, and Waste Prevention, with the exception of
``recyclable,'' are not used in the GSA regulation. ``Recyclable'' is
specifically addressed in guidance contained in 16 CFR Part 260 that is
referred to in the regulation. Consequently, the GSA does not believe
defining these terms is necessary.
Furthermore, the GSA does not publish this rule to implement
Executive Order 12873 nor to substitute for guidance the Environmental
Protection Agency (EPA) is developing pursuant to section 503 of that
executive order to assist Federal agencies in their purchasing of
environmentally preferable products. However, the GSA believes its rule
does not conflict with, but in fact, further policies expressed in
Executive Order 12873.
Three companies submitted substitute definitions for ``energy-
efficient office equipment.'' These substitute definitions were not
accepted because of limitations in their applicability or because they
could lead to unwarranted and improper comparisons of competing
products. However, as a result of these comments, the definition was
modified.
One comment expressed concern with the definition of ``recovered
materials.'' The concern was that rebuilt parts and similar products
may not fall within the definition. Suggested revisions to the
definition were not accepted. The definition used in the regulation is
the statutory definition in the Resource Conservation and Recovery Act
(42 U.S.C. 6903(19)) and is unchanged in this final rule. However, as a
result of this comment and a second comment that also alluded to
remanufactured products, a definition of ``remanufactured products''
was added to the regulation for clarity.
The majority of the remaining comments involved informational
aspects of the regulation. The significant issues were the potential
conflict with the guidance currently being developed by the EPA for
purchasing environmentally preferable products, the amount and kinds of
information necessary to substantiate environmental claims, and
verification of those claims.
One organization suggested the criteria is used by the GSA is too
limited and not consistent with the approach the EPA is taking. A
second opposed the interim rule ``on the grounds that no compelling
reasons for its issuance were presented and its issuance is premature
in light of EPA's work under Executive Order 12873.'' Several comments
were made that the regulation may encourage the purchase of products
based upon one or two favorable environmental characteristics while
ignoring potentially significant adverse environmental impacts in other
stages of their life cycle or that the regulation may encourage
questionable and unfounded claims. One stated that listing specific
environmental attributes should be avoided because suppliers ``would
have little enticement to innovate outside the attributes listed.'' It
continued, ``Federal procurement programs should encourage the
submission of information on the broad life cycle of a product in the
areas of energy usage, raw material usage, air emissions, water
emissions and solid waste production.'' To shortcut unfounded claims,
another urged the GSA to require offerors to supply it with complete
information about the specific evidence, test procedures and results to
support any claim.
Several comments questioned the GSA's decision to rely upon third
party certifications. The significant issues raised were (1) the GSA
should not delegate this responsibility, (2) ecolabels tend to be based
upon limited or narrow criteria and are not consistent with the broad
life cycle approach favored by an EPA concept paper, and (3) third
party certification can be costly to suppliers.
The GSA considered all of these comments in light of its limited
objectives and anticipated benefits. GSA notes that its regulation does
not limit contractors only to those environmental attributes expressly
identified in the regulation, but instead merely requires them to have
a reasonable basis substantiating any claim to an environmental
attribute that is made. Neither does the GSA dictate to contractors how
it must substantiate the environmental claim, but again provides
flexibility. Third party verification is one option available to
suppliers.
The GSA also considered the anticipated benefits of the
informational models suggested in the EPA concept paper and favored by
some organizations that commented on the regulation. The burden
involved in collecting and evaluating information involved in such an
approach is not consistent with the GSA's MAS programs where contracts
are awarded to multiple suppliers that offer the same generic types of
products at various prices. Ordering activities are thus provided the
opportunity to satisfy their requirements with the lowest cost product
that has the features specifically meeting their needs. Life cycle
analysis applied to environmental attributes does not further this
objective because it has not been demonstrated to be a cost-effective
tool. The GSA agrees with one organization's comment that more work is
needed before information requests on the broad life cycle of a product
would be useful because ``the tools to translate these concepts into
practice--such as life cycle assessment and life cycle costing--are, on
this date, still under development.''
The GSA also notes that it is not unaware of the work the EPA is
doing in developing guidance on purchasing environmentally preferable
products. While the GSA will continue to work with the EPA, the
objectives of this rule and the EPA's objectives do not coincide.
Though there are common elements, the achievement of the GSA's limited
objectives is not dependent upon the approach ultimately decided upon
by the EPA to assist Federal agencies in the purchase of
environmentally preferable products. Moreover, to satisfy the NPR
recommendation, the GSA cannot defer its final rule pending the
development and issuance of the EPA's guidance.
Consequently, the GSA made no substantive changes to the final rule
as a result of comments on the informational aspects of the regulation.
Since it cannot anticipate when EPA's final guidance will be published,
the GSA believes its regulation will encourage the identification of
current and new products with environmental attributes and identify
those products for Federal agencies that place orders against GSA MAS
contracts. Such an outcome will be consistent with the policies
expressed in various statutes and executive orders and satisfy the
recommendation in the NPR report, Reinventing Federal Procurement.
B. Executive Order 12866
This rule was reviewed by the Office of Management and Budget (OMB)
in accordance with Executive Order 12866, Regulatory Planning and
Review.
C. Regulatory Flexibility Act
The rule is not expected to have an economic impact on a
substantial number of small entities as defined under the Regulatory
Flexibility Act.
Under multiple award schedules, contractors currently are required
to submit certain marketing information with their offers and to
publish and distribute to ordering agencies commercial catalogs and/or
pricelists. This rule would require those contractors to identify and
describe those products that have environmental attributes.
An initial regulatory flexibility analysis was prepared and
submitted to the Chief Counsel for Advocacy of the Small Business
Administration. Copies of the initial regulatory flexibility analysis
were available for public comment. No comments were received on the
impact of the rule on small business.
The final regulatory flexibility analysis reflects the policy of
the Federal Government to accommodate and encourage technological
innovation and the development of products that reduce energy
consumption, conserve natural resources, and are less harmful to
consumers and the environment. The final regulatory flexibility
analysis indicates that the rule will affect contractors, including
small businesses under MAS solicitations. In FY 1992 the GSA awarded
approximately 2,800 such contracts. Of this total, more than 2,000 (74
percent) were awarded to small business concerns.
D. Paperwork Reduction Act
The information collection requirement contained in this rule has
been approved by OMB under section 3504(h) of the Paperwork Reduction
Act and assigned OMB Control Number 3090-0262. The title of this
collection is Identification of Products with Environmental Attributes.
Requiring contractors to identify and describe products with
environmental attributes is intended to stimulate the development of
products that incorporate pollution prevention technologies and
facilitate the marketing of such products to the Federal Government,
the Nation's largest single consumer. Federal agencies are required to
give preference to such products, when doing so is cost-effective and
meets performance requirements. The estimated annual burden for this
collection is 14,000 hours. This is based on an estimated average
burden hour per response of 5 hours, a proposed frequency of one
response per respondent, and an estimated number of likely respondents
or 2,800.
Any comments concerning the accuracy of the burden may be directed
to the Director, Office of GSA Acquisition Policy (VP), 18th and F
Streets, NW, Room 4006, Washington, DC 20405 and to the Office of
Information and Regulatory Affairs of OMB, Attention Desk Officer for
GSA, Washington, DC 20503.
List of Subjects in 48 CFR Parts 501, 538, and 552
Government procurement.
Accordingly, 48 CFR Parts 501, 538, and 552 are amended as follows:
1. The authority citation for 48 CFR Parts 501, 538, and 552
continues to read as follows:
Authority: 40 U.S.C. 486(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
2. Section 501.105 is revised to read as follows:
501.105 OMB Approval under the Paperwork Reduction Act.
The following OMB control numbers apply:
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OMB control
GSAR reference No.
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509.105-1(a)............................................. 3090-0007
510.004-70............................................... 3090-0203
510.011(i)............................................... 3090-0246
512.104(a)(2)............................................ 3090-0204
512.104(a)(4)............................................ 3090-0204
514.201(7)(a)............................................ 3090-0200
516.203-4(b)............................................. 3090-0243
516.505.................................................. 3090-0248
519.708(b)............................................... 3090-0252
522.406-6................................................ 1215-0140
523.370.................................................. 3090-0205
525.105-70(d)............................................ 3090-0198
525.205.................................................. 3090-0240
532.502-3................................................ 3090-0229
532.905-70............................................... 9000-0102
532.905-71............................................... 3090-0080
537.110(a)............................................... 3090-0197
537.110(b)............................................... 3090-0006
538.203-71(a)............................................ 3090-0121
538.203-71(b)............................................ 3090-0250
538.203-71(d)............................................ 3090-0262
542.1107................................................. 3090-0027
546.302-70............................................... 3090-0027
546.302-71............................................... 3090-0027
546.570.................................................. 3090-0227
552.210-74............................................... 3090-0203
552.210-79............................................... 3090-0246
552.212-1................................................ 3090-0204
552.212-71............................................... 3090-0204
552.214-75............................................... 3090-0200
552.216-71............................................... 3090-0243
552.216-73............................................... 3090-0248
552.216-74............................................... 3090-0248
552.219-73............................................... 3090-0252
552.223-71............................................... 3090-0205
552.225-70............................................... 3090-0198
552.225-75............................................... 3090-0240
552.228-74............................................... 3090-0189
552.232-74............................................... 3090-0229
552.232-79............................................... 3090-0080
552.237-70............................................... 3090-0197
552.237-71............................................... 3090-0006
552.238-70............................................... 3090-0250
552.238-72............................................... 3090-0121
552.238-75............................................... 3090-0262
552.242-70............................................... 3090-0027
552.246-70............................................... 3090-0027
552.246-72............................................... 3090-0027
552.249-71............................................... 3090-0227
GSA-72................................................... 3090-0121
GSA-72-A................................................. 3090-0121
GSA-527.................................................. 3090-0007
GSA-618-D................................................ 1215-0149
GSA-1142................................................. 3090-0080
GSA-1364................................................. 3090-0086
GSA-1678................................................. 3090-0027
GSA-2419................................................. 9000-0102
570.802(c)............................................... 3090-0086
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PART 538--GSA SCHEDULE CONTRACTING
3. Section 538.203-71 is amended to revise paragraph (d) to read as
follows:
538.203-71 Solicitation provisions and contract clauses.
* * * * *
(d) The contracting officer shall insert the clause at 552.238-75,
Identification of Energy-Efficient Office Equipment and Supplies
Containing Recovered Materials or Other Environmental Attributes, in
solicitations and contracts awarded for supplies under the multiple
award schedule program.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 552.238-75 is revised to read as follows:
552.238-75 Identification of Energy-Efficient Office Equipment and
Supplies Containing Recovered Materials or Other Environmental
Attributes.
As prescribed in 538.203-71(d), insert the following clause:
Identification of Energy-Efficient Office Equipment and Supplies
Containing Recovered Materials or Other Environmental Attributes (Sept
1994)
(a) Definitions. ``Energy-efficient office equipment,'' as used
in this clause, means office equipment that, in representative use,
provides equivalent or better performance and value to users, but
uses significantly less energy than most functionally equivalent
models.
``Recovered materials,'' as used in this clause, means waste
material and by-products which have been recovered or diverted from
solid waste, but such term does not include those materials and by-
products generated from, and commonly reused, within an original
manufacturing process (42 U.S.C. 6903(19)). For paper, it also
includes postconsumer materials, and manufacturing and certain other
wastes. (42 U.S.C. 6962(h)).
``Remanufactured products,'' as used in this clause, means
equipment or parts that have been factory remanufactured or rebuilt
to meet new equipment or part performance specifications and have
had no use subsequent to their remanufacture.
(b) The offeror shall identify in its offer and include in any
commercial catalogs and pricelists and any resultant Government
catalogs or pricelists submitted to the Contracting Officer, energy-
efficient office equipment and supplies that contain recovered
material, remanufactured products, or other environmental
attributes. Examples of energy-efficient office equipment are
microcomputers and associated equipment that meet the requirements
of the Environmental Protection Agency's (EPA's) Energy Star
Computers Program. Supplies that contain recovered materials and
other environmental attributes include, but are not limited to,
products identified in EPA procurement guidelines (40 CFR subchapter
I) and products that are either degradable, ozone safe, recyclable,
contain low volatile organic content compounds, contribute to source
reduction, or otherwise are designed or manufactured to achieve
environmental improvement. For example, an offeror can identify
products that are safe or safer alternatives for more toxic or
hazardous products and products that can be substituted for ones
manufactured with toxic or hazardous materials. Such supplies shall
satisfy the guidance contained in 16 CFR part 260, Guides for the
Use of Environmental Marketing Claims.
(c) An offeror, in identifying an item with an environmental
attribute, shall possess evidence or rely upon a reasonable basis to
substantiate the claim (see 16 CFR 260.5). The Government will
accept an offeror's claim of an item's environmental attribute on
the basis of--
(1) Participation in a Federal agency sponsored program, e.g.,
EPA's Energy Star Computers Program;
(2) Verification by an independent organization that specializes
in certifying such claims; or
(3) Possession of competent and reliable evidence. For any test,
analysis, research, study or other evidence to be ``competent and
reliable,'' it must have been conducted and evaluated in an
objective manner by persons qualified to do so, using procedures
generally accepted in the profession to yield accurate and reliable
results.
(End of Clause)
Dated: September 23, 1994.
Arthur E. Ronkovich,
Acting Associate Administrator, Office of Acquisition Policy.
[FR Doc. 94-30197 Filed 12-7-94; 8:45 am]
BILLING CODE 6820-61-M
