By Lynn L. Bergeson and Carla N. Hutton
 
On August 3, 2023, the U.S. Department of Defense (DOD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) proposed to amend the Federal Acquisition Regulation (FAR) to restructure and update the regulations to focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable. 88 Fed. Reg. 51672. Comments are due October 2, 2023.
 
The proposed rule would define “sustainable products and services” as products and services that are subject to and meet statutory purchasing program requirements or other U.S. Environmental Protection Agency (EPA) purchasing program requirements. The proposed rule states that for the statutory purchasing programs, the definition references the following types of products and includes a reference to the source statute, the lead agency implementing regulations, and the program website:

• Products containing recovered material designated by EPA under the Comprehensive Procurement Guidelines;
• Energy-efficient products that are ENERGY STAR^® certified or Federal Energy Management Program (FEMP)-designated products;
• Biobased products meeting the U.S. Department of Agriculture (USDA) content requirements under the BioPreferred^® program; and
• Acceptable chemicals, products, and manufacturing processes listed under EPA’s Significant New Alternatives Policy (SNAP) program, “which ensures a safe and smooth transition away from substances that contribute to the depletion of stratospheric ozone.”

The definition identifies the following required EPA purchasing programs and provides the link to each associated program website:

• WaterSense^® labeled (water efficient) products and services;
• Safer Choice-certified products (products that contain safer chemical ingredients); and
• Products and services that meet or exceed EPA Recommendations of Specifications, Standards, and Ecolabels.

Under the proposed rule, “biobased product” would be defined as “a product determined by the U.S. Department of Agriculture to be a commercial product or industrial product (other than food or feed) that is composed, in whole or in significant part, of biological products, including renewable domestic agricultural materials and forestry materials, or that is an intermediate ingredient or feedstock. The term includes, with respect to forestry materials, forest products that meet biobased content requirements, notwithstanding the market share the product holds, the age of the product, or whether the market for the product is new or emerging.”