FAR 23.106—Exemptions.
Plain-English Summary
FAR 23.106 explains when the sustainability requirements in FAR Part 23 can be exempted, and who has authority to grant those exemptions. It covers four main topics: the Director of National Intelligence’s authority to exempt intelligence activities and related resources; an agency head’s authority to exempt particular agency activities for national security, intelligence protection, or undercover law enforcement needs; an agency head’s authority to exempt certain vehicles, vessels, aircraft, non-road equipment, and spaceflight vehicles used for combat, tactical, relief, or training missions; and the ability of an agency head to request a broader exemption from the President through the Chair of the Council on Environmental Quality (CEQ). It also includes a special rule that contracting officers are encouraged, but not required, to buy sustainable products and services when the agency head determines the supplies or services will support defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack, international disaster assistance, or emergency/major disaster response. In practice, this section matters because it tells contracting personnel when sustainability preferences and requirements may be set aside for mission, security, or emergency reasons, and it establishes the approval and notification steps that must be followed when an exemption is used.
Key Rules
Intelligence activity exemption
The Director of National Intelligence may exempt an intelligence activity of the United States, along with related personnel, resources, and facilities, when necessary to protect intelligence sources and methods from unauthorized disclosure. This is a targeted authority tied to intelligence protection, not a general waiver for all procurement rules.
Agency activity exemptions
The head of an agency may exempt particular agency activities and related personnel, resources, and facilities when needed for national security, to protect intelligence sources and methods, or to protect undercover law enforcement operations from unauthorized disclosure. If this exemption is issued under paragraph (b)(1), the agency must notify the Chair of CEQ in writing within 30 days.
Mission vehicle and equipment exemptions
The head of an agency may exempt, on an individual or class basis, manned and unmanned vehicles, vessels, aircraft, non-road equipment, and spaceflight vehicles, including associated ground-support equipment, when they are used in combat support, combat service support, military tactical or relief operations, or training for those operations. This recognizes that mission-critical equipment may need to be treated differently from ordinary commercial items.
Encouraged but not required purchases
Contracting officers are encouraged, but not required, to procure sustainable products and services when the agency head determines the supplies or services will be used for defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate international disaster assistance; or to support response to an emergency or major disaster. This is a discretionary preference, not a mandatory green procurement rule, in these mission contexts.
Broader presidential exemption request
The head of an agency may submit a request to the President, through the Chair of CEQ, for an exemption of an agency activity and related personnel, resources, and facilities from this subpart for any reason not otherwise covered in the section. This provides a path for exceptional circumstances that do not fit the specific exemptions already listed.
Responsibilities
Director of National Intelligence
Determine when an intelligence activity of the United States, and related personnel, resources, and facilities, should be exempted to protect intelligence sources and methods from unauthorized disclosure.
Head of Agency
Decide whether to exempt particular agency activities for national security, intelligence protection, or undercover law enforcement needs; decide whether to exempt covered vehicles, vessels, aircraft, non-road equipment, and spaceflight vehicles used for specified mission purposes; and, when appropriate, submit a broader exemption request to the President through the Chair of CEQ.
Agency
If an exemption is issued under paragraph (b)(1), provide written notice to the Chair of CEQ within 30 days of issuance.
Contracting Officer
Consider sustainable products and services when appropriate, but recognize that in the specified defense, disaster assistance, and emergency response situations, procurement of sustainable products and services is encouraged rather than mandatory.
Chair of the Council on Environmental Quality (CEQ)
Receive written notice of agency exemptions under paragraph (b)(1) and serve as the channel through which broader exemption requests are submitted to the President.
President
Consider agency requests, submitted through the Chair of CEQ, for exemptions from this subpart that are not otherwise addressed in FAR 23.106.
Practical Implications
Contracting officers should verify whether an exemption has actually been approved before treating sustainability requirements as inapplicable; the authority is limited and not automatic.
The 30-day CEQ notification requirement for agency activity exemptions is an administrative step that can be missed, so agencies need a process to track issuance dates and reporting deadlines.
The vehicle/equipment exemption is broad in scope but narrow in purpose: it applies to specific mission uses, not to all agency fleets or all equipment purchases.
The “encouraged, but not required” language means contracting officers may still buy sustainable products and services in emergency or defense-related situations, but they are not compelled to do so if mission needs point elsewhere.
When a situation does not fit the listed exemptions, agencies should not improvise; the proper path is a formal request to the President through CEQ for a broader exemption.
Official Regulatory Text
(a) The Director of National Intelligence may exempt an intelligence activity of the United States and related personnel, resources, and facilities to the extent the Director determines necessary to protect intelligence sources and methods from unauthorized disclosure. (b) The head of an agency may exempt the following: (1) Particular agency activities and related personnel, resources, and facilities when it is in the interest of national security, to protect intelligence sources and methods from unauthorized disclosure, or where necessary to protect undercover law enforcement operations from unauthorized disclosure. The agency shall notify the Chair of the Council on Environmental Quality (CEQ) in writing within 30 days of issuance of the exemption under this paragraph (b)(1). (2) On an individual or class basis, any manned and unmanned vehicle, vessel, aircraft, or non-road equipment that is used in combat support, combat service support, military tactical or relief operations, or training for such operations or spaceflight vehicles, including associated ground-support equipment. (c) Contracting officers are encouraged, but not required, to procure sustainable products and services if the head of the agency determines the supplies or services are to be used to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster. (d) The head of the agency may submit to the President, through the Chair of CEQ, a request for an exemption of an agency activity, and related personnel, resources, and facilities from this subpart for any reason not otherwise addressed in this section.