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Conference Report 107-772 - National Defense Authorization Act for Fiscal Year 2003

Conference Report Section

Legislative History

(a) TRACKING SYSTEM- The Secretary of Defense shall develop and implement an effective and efficient tracking system to identify the extent to which the Defense Logistics Agency procures environmentally preferable procurement items or procurement items made with recovered material. The system shall provide for the separate tracking, to the maximum extent practicable, of the procurement of each category of procurement items that, as of the date of the enactment of this Act, has been determined to be environmentally preferable or made with recovered material.

(b) ASSESSMENT OF TRAINING AND EDUCATION- The Secretary of Defense shall assess the need to establish a program, or enhance existing programs, for training and educating Department of Defense procurement officials to ensure that they are aware of any Department requirements, preferences, or goals for the procurement of environmentally preferable procurement items or procurement items made with recovered material.

(c) REPORTING REQUIREMENT- Not later than March 1, 2004, and each March 1 thereafter through 2007, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report detailing the results obtained from the tracking system developed under subsection (a).

(d) RELATION TO OTHER LAWS- Nothing in this section shall be construed to alter the requirements of the Solid Waste Disposal Act (40 U.S.C. 6901 et seq.).

(e) DEFINITIONS- In this section:

(1) The term `environmentally preferable', in the case of a procurement item, means that the item has a lesser or reduced effect on human health and the environment when compared with competing products that serve the same purpose. The comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product.

(2) The terms `procurement item' and `recovered material' have the meanings given such terms in section 1004 of the Solid Waste Disposal Act (40 U.S.C. 6903).

Conference Report 107-772

The Senate amendment contained a provision (sec. 313) that would require the Secretary of Defense to establish: (1) goals for the increased purchase of procurement items that are environmentally preferable or are made with recovered materials; and (2) a tracking system to enable the Department to monitor its progress in achieving these goals.  (See S. 2514 and Senate Report 107-151 below.)

The House bill contained no similar provision.

The House recedes with an amendment that would eliminate the requirement to establish goals. The Secretary of Defense would be required to develop and implement an effective and efficient tracking system to identify the extent to which the Defense Logistics Agency procures items that have been determined to be environmentally preferable or made with recovered material. To the maximum extent practicable, the tracking system would be required to separately track the procurement of each category of such procurement items. In identifying categories of procurement items to be tracked, the conferees expect the Secretary to consider the Comprehensive Procurement Guidelines and Guidance on Acquisition of Environmentally Preferable Products and Services developed pursuant to Executive Order 13101 and products identified as environmentally preferable in the Federal Logistics Information System. The conferees also expect that the system will track the procurement of such items as a percentage of all purchases of procurement items that serve a similar purpose.

S. 2514

SEC. 313. INCREASED PROCUREMENT OF ENVIRONMENTALLY PREFERABLE PRODUCTS.

(a) PROCUREMENT GOALS- (1) The Secretary of Defense shall establish goals for the increased procurement by the Department of Defense of procurement items that are environmentally preferable or are made with recovered materials.

(2) The goals established under paragraph (1) shall be consistent with the requirements of section 6002 of the Solid Waste Disposal Act (42 U.S.C. 6962).

(3) In establishing goals under paragraph (1), the Secretary shall review the Comprehensive Procurement Guidelines and Guidance on Acquisition of Environmentally Preferable Products and Services developed pursuant to Executive Order 13101 and products identified as environmentally preferable in the Federal Logistics Information System.

(4) In establishing goals under paragraph (1), the Secretary shall establish a procurement goal for each category of procurement items that is environmentally preferable or is made with recovered materials.

(5) The goals established under paragraph (1) shall apply to Department purchases in each category of procurement items designated by the Secretary for purposes of paragraph (4), but shall not apply to--

(A) products or services purchased by Department contractors and subcontractors, even if such products or services are incorporated into procurement items purchased by the Department; or

(B) credit card purchases or other local purchases that are made outside the requisitioning process of the Department.

(b) ASSESSMENT OF TRAINING AND EDUCATION- The Secretary shall assess the need to establish a program, or enhance existing programs, for training and educating Department of Defense procurement officials and contractors to ensure that they are aware of Department requirements, preferences, and goals for the procurement of items that are environmentally preferable or are made with recovered materials.

(c) TRACKING SYSTEM- The Secretary shall develop a tracking system to identify the extent to which the Department of Defense is procuring items that are environmentally preferable or are made with recovered materials. The tracking system shall separately track procurement of each category of procurement items for which a goal has been established under subsection (a)(4).

(d) INITIAL REPORT- Not later than 120 days after the date of the enactment of this Act, the Secretary shall submit to the congressional defense committees a report that sets forth--

(1) the initial goals the Secretary plans to establish under subsection (a); and

(2) the findings of the Secretary as a result of the assessment under subsection (b), together with any recommendations of the Secretary as a result of the assessment.

(e) IMPLEMENTATION- Not later than 180 days after the date of the enactment of this Act, the Secretary shall--

(1) establish an initial set of goals in accordance subsection (a);

(2) begin the implementation of any recommendations of the Secretary under subsection (d)(2) as a result of the assessment under subsection (b); and

(3) implement the tracking system required by subsection (c).

(f) ANNUAL REPORT- Not later than March 1 of each year from 2004 through 2007, the Secretary shall submit to Congress a report on the progress made in the implementation of this section. Each report shall--

(1) identify each category of procurement items for which a goal has been established under

subsection (a) as of the end of such year; and

(2) provide information from the tracking system required by subsection (b) that indicates the extent to which the Department has met the goal for the category of procurement items as of the end of such year.

(g) DEFINITIONS- In this section:

(1) ENVIRONMENTALLY PREFERABLE- The term `environmentally preferable', in the case of a procurement item, means that the item has a lesser or reduced effect on human health and the environment when compared with competing procurement items that serve the same purpose. The comparison may be based upon consideration of raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the procurement item, or other appropriate matters.

(2) PROCUREMENT ITEM- The term `procurement item' has the meaning given that term in section 1004(16) of the Solid Waste Disposal Act (40 U.S.C. 6903(16)).

(3) RECOVERED MATERIALS- The term `recovered materials' means waste materials and by-products that have been recovered or diverted from solid waste, but does not include materials and by-products generated from, and commonly used within, an original manufacturing process.

 Senate Report 107-151

Increased procurement of environmentally preferable products and services (sec. 313)

The committee recommends a provision that would require the Secretary of Defense to establish a program for the acquisition of procurement items that are environmentally preferable or are made with recovered materials. At a minimum, the program would include three elements: (1) the establishment of goals for the increased purchase of procurement items that are environmentally preferable or are made with recovered materials; (2) a tracking system to enable the Department to monitor its progress in achieving these goals; and (3) training and education programs that the Secretary of Defense considers appropriate to ensure that Department of Defense (DOD) officials and contractors are aware of these goals.

Last year, the General Accounting Office (GAO) issued a report which criticized the performance of federal agencies, including the Department of Defense, in purchasing environmentally preferable products. The report concluded:

Even today, many procuring officials and other federal purchasers either do not know about or implement the [requirements of the Resource Conservation and Recovery Act of 1976] for establishing affirmative procurement programs, particularly promotion and review and monitoring. * * *

[Federal agencies] have not developed systems to track their purchases of such products, relying instead on

inadequate estimates. Nor have they put programs in place to review and monitor progress. * * * [The Department of] Defense, the largest procuring agency, believes efforts to monitor and report on recycled-content product purchases conflict with the streamlining goals of procurement reform.

The committee recognizes that the review and monitoring of purchases of procurement items that are environmentally preferable or are made with recovered materials entails administrative costs but agrees with the GAO conclusion that an effective program requires such review and monitoring. For this reason, the goals and tracking system required by the provision recommended by the committee would apply only to direct DOD purchases of procurement items, not to products and services purchased by DOD contractors and subcontractors (even if they are incorporated into procurement items purchased by the Department). The committee understands that the administration has modified the Federal Procurement Data System to collect limited information on products and services purchased by contractors and subcontractors and encourages the administration to continue this effort.

The provision would also exclude credit card purchases and other local purchases that are made outside the Department's requisitioning system, because the committee understands that the Department currently lacks the ability to track such purchases. The committee directs the Department to review its local purchasing practices and take appropriate steps to ensure compliance with the preference for procurement items that are environmentally preferable or are made with recovered materials.

In addition, the committee directs the Department to conduct a review of other DOD purchasing practices to determine the extent to which these practices are consistent with the objective of increasing the procurement of items that are environmentally preferable or are made with recovered materials. At a minimum, the Secretary should:

(1) review sample purchases of inventory items by the Defense Logistics Agency to determine the type of packaging being used for such items and the extent to which such packaging is made with recovered materials;

(2) review sample construction and renovation contracts to determine whether the contracts provide appropriate direction on the disposal and recycling of materials and/or any preference for the use of products that are made with recovered materials and other environmentally preferable products;

(3) review sample purchases of information technology products to determine the type of packaging being used for such items and the extent to which such packaging is made with recovered materials; and

(4) review sample fleet management contracts to determine the extent to which these contracts provide a preference for the use of re-refined motor oil.

The results of these reviews should be included in the Secretary's initial report required by subsection (d) of this provision.