Notices. Proposed rule

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BILLING CODE 3510-22-S 72 85 Thursday, May 3, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 925 [Docket No. AMS-FV-07-0029; FV07-925-2 PR] Grapes Grown in a Designated Area of Southeastern California; Increased Assessment Rate AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule. SUMMARY: This rule would increase the assessment rate established for the California Desert Grape Administrative Committee (committee) for the 2007 and subsequent fiscal periods from $0.0175 to $0.0200 per 18-pound lug of grapes handled.

The committee locally administers the marketing order, which regulates the handling of grapes grown in a designated area of southeastern California. Assessments upon desert grape handlers are used by the committee to fund reasonable and necessary expenses of the program. The fiscal period began January 1 and ends December 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated. DATES: Comments must be received by June 4, 2007. ADDRESSES:

Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:

(202)720-8938; or Internet: *http://www.regulations.gov.* Comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Program Analyst, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA; Telephone:

(559)487-5901, Fax:

(559)487-5906, or E-mail: *Toni.Sasselli@usda.gov* or *Kurt.Kimmel@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:

(202)720-2491, Fax:

(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 925, both as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California grape handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable grapes beginning on January 1, 2007, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule would increase the assessment rate established for the committee for the 2007 and subsequent fiscal periods from $0.0175 to $0.0200 per 18-pound lug of grapes. The California grape marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are producers and handlers of California grapes. They are familiar with the committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 2005 and subsequent fiscal periods, the committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other information available to USDA. The committee met on February 6, 2007, and unanimously recommended expenditures of $160,768 and an assessment rate of $0.0200 per 18-pound lug of grapes for the 2007 fiscal period. In comparison, last year's budgeted expenditures were $131,318. The assessment rate of $0.0200 is $0.0025 higher than the rate currently in effect. The increased assessment rate is needed to permit the committee to fund a research project on Vineyard Mealy Bugs and to ensure that an adequate carryover of reserve funds is available for the 2008 fiscal year. The major expenditures recommended by the committee for the 2007 fiscal period include $18,000 for research, $5,000 for compliance activities, $109,068 for salaries and payroll expenses, and $28,700 for other expenses. In comparison, budgeted expenses for these items in 2006 were $5,000 for compliance activities, $103,668 for salaries and payroll expenses, and $22,650 for other expenses. The committee did not budget for research projects in 2006. The assessment rate recommended by the committee was derived by subtracting the committee's total available funds from their anticipated 2007 expenses and dividing the remainder by the estimated 2007 shipments. The total anticipated 2007 expenses are $160,768, and the desired ending reserve is $39,432. The available carry-in funds are $70,000, and the anticipated interest income is $200. The 2007 estimated shipments are 6.5 million 18-pound lugs. Based on this calculation, (($160,768 + $39,432) − ($70,000 + $200)) ÷ ( 6.5 million = $0.0200, the $0.0200 assessment rate would provide sufficient funds to meet anticipated expenses of $160,768 and would allow for an adequate December 2007 ending reserve of $39,432. Thus, the December 2007 ending reserve would be kept within the maximum permitted by the order, approximately one fiscal period's expenses, as required under § 925.41 of the order. It would also be adequate to cover early-season

(2008)expenses before assessment income is received. The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information. Although this assessment rate would be in effect for an indefinite period, the committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The committee's 2007 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service

(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 50 producers of grapes in the production area and approximately 20 handlers subject to regulation under the marketing order. The Small Business Administration (13 CFR 121.201) defines small agricultural producers as those having annual receipts less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000. Last year, six of the 20 handlers subject to regulation had annual grape sales of at least $6,500,000. In addition, 10 of the 50 producers had annual sales of at least $750,000. Therefore, a majority of handlers and producers may be classified as small entities. This rule would increase the assessment rate established for the committee and collected from handlers for the 2007 and subsequent fiscal periods from $0.0175 to $0.0200 per 18-pound lug of grapes. The committee unanimously recommended expenditures of $160,768 and an assessment rate of $0.0200 per 18-pound lug of grapes for the 2007 fiscal period. The proposed assessment rate of $0.0200 is $0.0025 higher than the 2006 rate. The number of assessable grapes is estimated at 6.5 million 18-pound lugs. Thus, the $0.0200 rate should provide $130,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the committee's authorized carry-in reserve should be adequate to cover budgeted expenses. The major expenditures recommended by the committee for the 2007 fiscal period include $18,000 for research, $5,000 for compliance activities, $109,068 for salaries and payroll expenses, and $28,700 for other expenses. In comparison, budgeted expenses for these items in 2006 were $5,000 for compliance activities, $103,668 for salaries and payroll expenses, and $22,650 for other expenses. The committee did not budget for research projects in 2006. The committee reviewed and unanimously recommended 2007 expenditures of $160,768, which included an increase due to a new research project. Prior to arriving at this budget, the committee considered alternative expenditure and assessment rate levels, but ultimately decided that the recommended levels were reasonable to properly administer the order. The assessment rate recommended by the committee was derived by the following formula: Anticipated expenses ($160,768) plus desired 2007 ending reserve ($39,432), minus the 2007 beginning reserve ($70,000) and the anticipated interest income ($200), divided by total shipments (6.5 million 18-pound lugs), equals the recommended assessment rate ($0.0200 per 18-pound lug). This rate would provide sufficient funds in combination with interest and reserve funds to meet the anticipated expenses of $160,768 and result in a December 2007 ending reserve of $39,432, which is acceptable to the committee. Thus, the December 2007 ending reserve would be kept within the maximum permitted by the order, approximately one fiscal period's expense, as required under § 925.41 of the order. A review of historical information and preliminary information pertaining to the 2007 fiscal period indicates that the on-vine grower price for the season could range between $5.00 and $9.00 per 18-pound lug of grapes. Therefore, the estimated assessment revenue for the 2007 fiscal period as a percentage of total grower revenue could range between 0.2 and 0.4 percent. This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, the committee's meeting was widely publicized throughout the grape production area and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the February 6, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large California grape handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because:

(1)The 2007 fiscal period began on January 1, 2007, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable grapes handled during such period;

(2)the industry could be shipping grapes beginning April 20, 2007;

(3)the committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and

(4)handlers are aware of this action which was unanimously recommended by the committee at a public meeting and is similar to other assessment rate actions issued in past years. List of Subjects in 7 CFR Part 925 Grapes, Marketing agreements, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 925 is proposed to be amended as follows: PART 925—GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN CALIFORNIA 1. The authority citation for 7 CFR part 925 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 925.215 is revised to read as follows: § 925.215 Assessment rate. On and after January 1, 2007, an assessment rate of $0.0200 per 18-pound lug is established for grapes grown in a designated area of southeastern California. Dated: April 27, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-8458 Filed 5-2-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 930 [Docket No. AMS-FV-06-0186; FV06-930-610 REVIEW] Tart Cherries Grown in the States of Michigan, et al.; Section 610 Review AGENCY: Agricultural Marketing Service, USDA. ACTION: Confirmation of regulations. SUMMARY: This action summarizes the results under the criteria contained in section 610 of the Regulatory Flexibility Act (RFA), of an Agricultural Marketing Service

(AMS)review of Marketing Order No. 930 regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. ADDRESSES: Interested persons may obtain a copy of the review. Requests for copies should be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:

(202)720-8938; or e-mail: *moab.docketclerk@usda.gov.* The review may also be viewed online at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Patricia A. Petrella or Kenneth G. Johnson, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Unit 155, 4700 River Road, Riverdale, MD 20737; Telephone:

(301)734-5243, Fax:

(301)734-5275; or E-mail: *Patricia.Petrella@usda.gov* or *Kenneth.Johnson@usda.gov.* SUPPLEMENTARY INFORMATION: Marketing Order 930, as amended (7 CFR part 930), regulates the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. The marketing order is effective under the Agricultural Marketing Agreement Act of 1937 (Act), as amended (7 U.S.C. 601-674). The tart cherry marketing order establishes the Cherry Industry Administrative Board (Board) as the administrative body charged with overseeing program operations. Staff is hired to conduct the daily administration of the program. The Board consists of 18 producer and handler members, plus one member who represents the public. There are seven grower members and seven handler members, and four members that can be either growers or handlers. Each member has an alternate. Members and alternate members are elected through a mail balloting process. Currently, there are approximately 900 tart cherry growers and approximately 40 handlers. The majority of the growers and handlers may be classified as small entities. The regulations implemented under the order are applied uniformly to all size entities, and are designed to benefit all entities, regardless of size. AMS published in the **Federal Register** (64 FR 8014; February 18, 1999), its plan to review certain regulations, including Marketing Order 930, under criteria contained in section 610 of the RFA (5 U.S.C. 601-612). Updated plans were published in the **Federal Register** on January 4, 2002 (67 FR 525), August 14, 2003 (68 FR 48574), and again on March 24, 2006 (71 FR 14827). Accordingly, AMS published a notice of review and request for written comments on the tart cherry marketing order in the February 21, 2006, issue of the **Federal Register** (71 FR 8810). The deadline for comments ended April 24, 2006. No comments were received. The review was undertaken to determine whether the tart cherry marketing order should be continued without change, amended, or rescinded to minimize the impacts on small entities. In conducting this review, AMS considered the following factors:

(1)The continued need for the marketing order;

(2)the nature of complaints or comments received from the public concerning the marketing order;

(3)the complexity of the marketing order;

(4)the extent to which the marketing order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and

(5)the length of time since the marketing order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the marketing order. The marketing order authorizes the following activities: Volume control in the form of free and restricted percentages and establishment of a reserve pool; production and processing research, marketing research and development, and promotional activities; reporting requirements for collection and dissemination of production, shipment, and other marketing information; and quality control, including inspection requirements. The volume control provisions of the order have helped stabilize supplies and prices of tart cherries. Recently, a generic domestic promotion program has been implemented with the intent of increasing consumer demand. The compilation and dissemination of aggregate statistical information collected from handlers is used by the industry to make informed production and marketing decisions. Minimum quality standards and inspection requirements, and production and marketing research, have not been implemented by the industry but the marketing order contains provisions for such programs should the industry determine it would be beneficial to implement them. Funds to administer the marketing order are obtained from handler assessments. Based on the potential benefits of the marketing order to producers, handlers, and consumers, AMS has determined that the order should continue without change. In regard to complaints or comments received from the public regarding this review, USDA has not received any comments from interested parties on this action. In considering the order's complexity, AMS has determined that the marketing order is not unduly complex. During the review, the order was also checked for duplication and overlap with other regulations. AMS did not identify any relevant Federal rules, or State and local regulations that duplicate, overlap, or conflict with the marketing order for tart cherries. The marketing order was established in 1996. Since its inception, AMS and the tart cherry industry have continuously monitored its operations. Changes in regulations have been implemented to reflect current industry operating practices, and to solve marketing problems as they occur. The goal of these evaluations is to assure that the order and the regulations implemented under it fit the needs of the industry and are consistent with the Act. The Board meets whenever needed, but at least bi-annually, to discuss the marketing order and the various regulations issued thereunder, and to determine if, or what, changes may be necessary to reflect current industry practices. As a result, numerous regulatory changes have been made over the years to address industry operation changes and to improve program administration. The marketing order has been amended three times since its inception and several changes to the administrative rules and regulations have been implemented over the years to ensure the program continues to meet the industry's needs. Accordingly, AMS has determined that the tart cherry marketing order should be continued. The marketing order was established to help the tart cherry industry work with USDA to solve marketing problems. The marketing order continues to be beneficial to producers, handlers, and consumers. AMS will continue to work with the tart cherry industry in maintaining an effective program. Dated: April 27, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-8443 Filed 5-2-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 12, 23, 42, and 52 [FAR Case 2005-039; Docket 2007-0001; Sequence 2] RIN 9000-AK69 Federal Acquisition Regulation; FAR Case 2005-039, Use of Products Containing Recovered Materials In Service and Construction Contracts AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation

(FAR)to clarify language within the FAR on the use of products containing recovered materials, pursuant to the *Resource Conservation and Recovery Act of 1976* , and Executive Order 13101 “Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition.” DATES: Interested parties should submit written comments to the FAR Secretariat on or before July 2, 2007 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAR case 2005-039 by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Search for any document by first selecting the proper document types and selecting “Federal Acquisition Regulation” as the agency of choice. At the “Keyword” prompt, type in the FAR case number (for example, FAR Case 2006-001) and click on the “Submit” button. Please include any personal and/or business information inside the document. You may also search for any document by clicking on the “Advanced search/document search” tab at the top of the screen, selecting from the agency field “Federal Acquisition Regulation”, and typing the FAR case number in the keyword field. Select the “Submit” button. • Fax: 202-501-4067. • Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405. *Instructions* : Please submit comments only and cite FAR case 2005-039 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 FAR Secretariat at

(202)501-4755. Please cite FAR case 2005-039. SUPPLEMENTARY INFORMATION: A. Background DOD, GSA, and NASA propose to amend the Federal Acquisition Regulation

(1)Provide for consistency when referring to products containing recovered materials;

(2)Clarify that the requirement for products containing recovered materials applies when agencies require the delivery or specify the use of EPA-designated items, and when agencies award contracts for services or construction unless the service or construction contract will not involve the use of such items;

(3)Prescribe a new clause for use in service and construction contracts when appropriate; and

(4)Revise the Recovered Material Certification provision to reflect the changes proposed by this rule. The Resource Conservation and Recovery Act

(RCRA)was enacted by Congress in 1976 to establish a system for managing non-hazardous and hazardous solid wastes in an environmentally sound manner. Specifically, it provides for the management of hazardous wastes from the point of origin to the point of final disposal. RCRA also promotes resource recovery and waste minimization. RCRA is designed to protect human health and the environment; reduce or eliminate the generation of hazardous wastes; and conserve energy and natural resources. Section 6002 of the RCRA acknowledges the importance of recycling by mandating that government agencies increase their purchases of products containing recovered materials. RCRA also specifies that the Environmental Protection Agency

(EPA)develop and issue procurement guidelines that designate specific items made with recovered materials. EPA-designated items containing recovered materials are items listed by EPA in a procurement guideline, and for which EPA has provided purchasing recommendations in a related Recovered Materials Advisory Notice (RMAN). Agencies shall purchase and require maximum use of EPA-designated items, taking into consideration competition, price, availability, and performance. Other RCRA sections mandate the revision of specifications requiring the exclusive use of virgin materials (RCRA Section 6002(d)), and the development of an affirmative procurement program (RCRA Section 6002(i)) that sets forth each agency's policies and procedures for implementing the requirements of Section 6002 of RCRA. Under the EPA program, Federal agencies may choose not to acquire (or require the use of) products containing recovered materials if they are not available in a reasonable timeframe, not reasonably priced, or do not meet performance standards. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. *Solicitation of Public Comment* . The Councils, along with the Office of Federal Procurement Policy (OFPP), wish to ensure that the EPA preference program includes the acquisition of products and services (including construction). In furtherance of its responsibility under section 6002, OFPP seeks to better understand the application of acquisition of services coverage and welcomes feedback. In commenting, please include citations, as appropriate, to relevant sources of information that may be used to substantiate the basis for your comments. B. 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 proposed rule prescribes a new clause when agencies purchase Environmental Protection Agency (EPA)-designated items, and when purchasing services (including construction) that could include the use of such items. The proposed rule applies to all small business entities who contract with the Federal Government for delivery of EPA-designated items or performance of services or construction contracts that involve the use of EPA-designated items. The Councils recognize that the EPA preference program has not been consistently implemented by Government agencies in services and construction acquisitions. However, with some exceptions, many agencies have fully implemented the program. To assess the impact of the rule, the Councils requested information and assistance from the Office of the Federal Environmental Executive (OFEE). The Councils considered the information provided by OFEE in preparation of the Initial Regulatory Flexibility Analysis (IRFA), the content of which is summarized as follows: Executive Order (E.O.) 13101 requires that agencies track and report annually to OFEE on their environmental accomplishments in waste prevention, recycling, and acquisition. Reporting is required on solid waste prevention practices, recycling and waste minimization goals and practices, implementation of environmentally preferable purchasing programs, contract compliance information, management controls, goals for training, auditing, purchasing and waste diversion, and purchases of EPA-designated recycled-content products. In addition, Section 6002 of the Resource Conservation and Recovery Act

(RCRA)requires the Office of Federal Procurement Policy to report to Congress every two

(2)years on the actions taken by the Federal agencies to implement the statute. Information obtained from OFEE indicates that many agencies have fully implemented the recovered material content program. The content of the RCRA reports, combined with

(1)an OFEE baseline study conducted on Federal agency green building activities,

(2)annual White House Closing the Circle Awards nominations in the green purchasing, green building, and pollution/waste prevention categories, and

(3)discussions with agencies (including tours of facilities and reviews of training programs), indicates that most agencies have been incorporating the requirement to use products with recycled content in services and construction contracts for some time. The Councils recognize that the rule may affect small entities performing contracts for those agencies that have not fully implemented the program in service and construction contracts, the number of entities affected, and the extent to which they will be affected, may be significant. The rule may affect the types of products these businesses use during contract performance. Assistance is available to all firms at the EPA Comprehensive Procurement Guidelines website, *http://www.epa.gov/cpg* . EPA provides guidance on identifying products containing recovered materials, including Product Fact Sheets and a Supplier Database. Options to comply with the requirements of the rule can be as simple as purchasing products made with recovered materials to be used in service and construction contracts. The rule does not impose new requirements that impose a burden on contractors. The FAR Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. Interested parties may obtain a copy from the FAR Secretariat. We invite comments from small business concerns and other interested parties on this issue. The Councils will consider comments from small entities concerning the affected FAR parts 12, 23, 42, and 52 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, *et seq.* (FAR case 2005-039), in correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000-0134 on January 4, 2005. List of Subjects in 48 CFR Parts 12, 23, 42, and 52 Government procurement. Dated: April 24, 2007. Al Matera, Acting Director, Contract Policy Division. Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 12, 23, 42, and 52 as set forth below: 1. The authority citation for 48 CFR parts 12, 23, 42, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). PART 12—ACQUISITION OF COMMERCIAL ITEMS 2. Amend section 12.301 by revising paragraph (e)(3) to read as follows: 12.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

(e)* * *

(3)The contracting officer may use the provisions and clauses contained in Part 23 regarding the use of products containing recovered materials when appropriate for the item being acquired. PART 23—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE 23.000 [Amended] 3. Amend section 23.000 by removing from paragraph

(d)“that use” and adding “containing” in its place. 4. Revise Subpart 23.4, consisting of sections 23.400 through 23.406, to read as follows: SUBPART 23.4—USE OF PRODUCTS CONTAINING RECOVERED MATERIALS 23.400 Scope of subpart.

(a)The procedures in this subpart apply to all agency acquisitions of an Environmental Protection Agency (EPA)-designated item, if—

(1)The price of a designated item exceeds $10,000; or

(2)The aggregate amount paid for designated items, or for functionally-equivalent designated items, in the preceding fiscal year was $10,000 or more.

(b)While micro-purchases are included in determining the aggregate amount paid under paragraph (a)(2) of this section, it is not recommended that an agency track micro-purchases when—

(1)The agency anticipates the aggregate amount paid will exceed $10,000; or

(2)The agency intends to establish or continue an affirmative procurement program in the following fiscal year. 23.401 Definition. As used in this subpart— *EPA-designated item* means a product that is or can be made with recovered material—

(1)That is listed by EPA in a procurement guideline (40 CFR part 247); and

(2)For which EPA has provided purchasing recommendations in a related Recovered Materials Advisory Notice

(RMAN)(available at *http://www.epa.gov/epaoswer/non-hw/procure/backgrnd.htm* ). 23.402 Authorities.

(a)The Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6962, requires agencies responsible for drafting or reviewing specifications used in agency acquisitions to—

(1)Eliminate from those specifications any requirement excluding the use of recovered materials or requiring products to be manufactured from virgin materials; and

(2)Require, for EPA-designated products, using recovered materials to the maximum extent practicable without jeopardizing the intended end use of the item.

(b)RCRA also requires—

(1)EPA to prepare guidelines on the availability, sources, and potential uses of recovered materials and associated products, including solid waste management services; and

(2)Agencies to develop and implement affirmative procurement programs for EPA-designated products within 1 year after EPA's designation.

(c)Executive Order 13101 requires that the agency head—

(1)Work to increase and expand markets for recovered materials through greater Government preference and demand for such products consistent with the demands of efficiency and cost-effectiveness; and

(2)Develop and implement affirmative procurement programs in accordance with direction in RCRA and the Executive order. 23.403 Policy. Government policy on the use of products containing recovered materials considers cost, availability of competition, and performance. Agencies shall assure the use of products containing recovered materials to the maximum extent practicable without jeopardizing the intended use of the product while maintaining a satisfactory level of competition at a reasonable price. Such products shall meet the reasonable performance standards of the agency and be acquired competitively, in a cost-effective manner. Except as provided at 23.404(b), virgin material shall not be required by the solicitation (see 11.302). 23.404 Agency affirmative procurement programs.

(a)An agency must establish an affirmative procurement program for EPA-designated items if the agency's purchases of the designated items exceed the threshold set forth in 23.400.

(1)Agencies have a period of 1 year to revise their procurement program(s) after the designation of any new item by EPA.

(2)Technical or requirements personnel and procurement personnel are responsible for the preparation, implementation, and monitoring of affirmative procurement programs.

(3)Agency affirmative procurement programs must include—

(i)A recovered materials preference program;

(ii)An agency promotion program;

(iii)A program for requiring reasonable estimates, certification, and verification of recovered material used in the performance of contracts; and

(iv)Annual review and monitoring of the effectiveness of the program.

(b)Agency affirmative procurement programs must require that 100 percent of purchases of EPA-designated items contain recovered material, unless the item cannot be acquired—

(1)Competitively within a reasonable timeframe;

(2)Meeting reasonable performance standards; or

(3)At a reasonable price.

(c)Agency affirmative procurement programs must provide guidance for purchases of EPA-designated items at or below the micro-purchase threshold.

(d)Agencies may use their own specifications or commercial product descriptions when procuring products containing recovered materials. The contract should specify that the product—

(1)Contains the highest percent of recovered materials practicable; or

(2)Meets the minimum content standards in accordance with the recommendations in EPA's Recovered Materials Advisory Notices. 23.405 Procedures.

(a)*Designated items and procurement guidelines* . Contracting officers should refer to EPA's list of EPA-designated items (available via the Internet at *http://www.epa.gov/cpg/products.htm* ) and to their agencies' affirmative procurement programs when purchasing products that contain recovered material, or services or construction that could include the use of products that contain recovered material.

(b)*Procurement exemptions* .

(1)Once an item has been designated by EPA, agencies shall purchase conforming products unless it is determined that conforming products cannot be acquired—

(i)Competitively within a reasonable timeframe;

(ii)Meeting reasonable performance standards; or

(iii)At a reasonable price.

(2)When an exemption is used for an EPA-designated item or the procurement of a product containing recovered material specifies a content level lower than the EPA recommended recovered materials content levels, the contracting officer shall place a written justification in the contract file. 23.406 Solicitation provision and contract clauses.

(a)Insert the provision at 52.223-4, Recovered Material Certification, in solicitations that—

(1)Require the delivery or specify the use of EPA-designated items; or

(2)Include the clause at 52.223-XX, Affirmative Procurement of EPA-designated Items In Service and Construction Contracts.

(b)Insert the clause at 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-designated Items, in solicitations and contracts exceeding $100,000 that include the provision at 52.223-4. If technical personnel advise that estimates can be verified, use the clause with its Alternate I.

(c)Insert the clause at 52.223-XX, Affirmative Procurement of EPA-designated Items In Service and Construction Contracts, in service or construction solicitations and contracts unless the contract will not involve the use of EPA-designated items. PART 42—CONTRACT ADMINISTRATION AND AUDIT SERVICES 5. Amend section 42.302 by revising paragraph (a)(68)(ii) to read as follows: 42.302 Contract administration functions.

(a)* * *

(68)* * *

(ii)Monitoring contractor compliance with specifications or other contractual requirements requiring the delivery or use of environmentally preferable products, energy-efficient products, and products containing recovered materials. This must occur as part of the quality assurance procedures set forth in Part 46; and PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 6. Revise the provision in section 52.223-4 to read as follows: 52.223-4 Recovered Material Certification. RECOVERED MATERIAL CERTIFICATION

(DATE)As required by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6962(c)(3)(A)(i)), the offeror certifies, by signing this offer, that the percentage of recovered materials content for EPA-designated items to be delivered or used in the performance of the contract will be at least the amount required by the applicable contract specifications or other contractual requirements. (End of provision) 7. Amend section 52.223-9 by— a. Revising the section heading; b. Revising the clause heading; c. Revising paragraph (b)(1); and d. In Alternate I by— 1. Revising the date of Alternate I; and 2. Revising the introductory paragraph of the certification in paragraph (b). The revised text reads as follows. 52.223-9 Estimate of Percentage of Recovered Material Content for EPA-Designated Items. ESTIMATE OF PERCENTAGE OF RECOVERED MATERIAL CONTENT FOR EPA-DESIGNATED ITEMS

(b)* * *

(1)Estimate the percentage of the total recovered material content for EPA-designated item(s) delivered and/or used in contract performance, including, if applicable, the percentage of postconsumer material content; and Alternate I (Date). * * *

(b)* * * CERTIFICATION I, _______________ (name of certifier), am an officer or employee responsible for the performance of this contract and hereby certify that the percentage of recovered material content for EPA-designated items met the applicable contract specifications or other contractual requirements. 8. Add section 52.223-XX to read as follows: 52.223-XX Affirmative Procurement of EPA-designated Items In Service and Construction Contracts. As prescribed in 23.406(c), insert the following clause: AFFIRMATIVE PROCUREMENT OF EPA-DESIGNATED ITEMS IN SERVICE AND CONSTRUCTION CONTRACTS

(a)In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired—

(1)Competitively within a timeframe providing for compliance with the contract performance schedule;

(2)Meeting contract performance requirements; or

(3)At a reasonable price.

(b)Information about this requirement is available at EPA's Comprehensive Procurement Guidelines Web site, *http://www.epa.gov/cpg/* . The list of EPA-designated items is available at *http://www.epa.gov/cpg/products.htm* . (End of clause) [FR Doc. 07-2168 Filed 5-2-07; 8:45 am]

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