[Federal Register: December 7, 2006 (Volume 71, Number 235)]
[Proposed Rules]
[Page 70937-70939]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de06-29]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 23, 36, and 52
[FAR Case 2006-008; Docket 2006-0020; Sequence 12]
RIN 9000-AK63
Federal Acquisition Regulation; FAR Case 2006-008, Implementation
of Section 104 of the Energy Policy Act of 2005
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to address implementation of
Section 104 of the Energy Policy Act of 2005.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before February 5, 2007 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2006-008 by any of
the following methods:
Federal eRulemaking Portal:http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 2006-008) and click on the ``Submit'' button. 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 2006-
008 in all correspondence related to this case. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT For clarification of content, contact
Mr. William Clark, Procurement Analyst, at (202) 219-1813. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. The TTY Federal Relay Number for
further information is 1-800-877-8973. Please cite FAR case 2006-008.
SUPPLEMENTARY INFORMATION:
A. Background
The Government's policy is to acquire supplies and services that
promote energy and water efficiency, advance the use of renewable
energy products, and help foster markets for emerging technologies.
This policy extends to all acquisitions, including those below the
simplified acquisition threshold, and those for the design,
construction, renovation, or maintenance of a facility.
The purpose of this rule is to ensure compliance with the Federal
mandate to promote energy efficiency when specifying or acquiring
energy-consuming products. This mandate stems from Section 104 of the
Energy Policy Act of 2005. Section 104 requires that all acquisitions
of energy consuming-products and all contracts for energy-consuming
products require acquisition of ENERGY STAR[reg] or Federal Energy
Management Program (FEMP) designated products.
As the world's largest volume-buyer of energy consuming products,
the Federal Government can reduce energy consumption and achieve
enormous cost savings by purchasing energy-efficient products. ENERGY
STAR[reg] and FEMP are two Federal programs concerned with energy
efficient products for Federal purchase. The ENERGY STAR[reg] and FEMP
websites (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.energystar.gov/products and http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eere.energy.gov/
[fxsp0]femp/procurement/[fxsp0]eep--
requirements.cfm, respectively) assist Federal purchasers and
contractors to identify these types of highly efficient products.
The ENERGY STAR[reg] program is jointly sponsored by the
Environmental Protection Agency and the Department of Energy. Begun in
1992, Energy Star's original focus was office equipment, but has been
expanded to include many other consumer products as well as business
products. Over the past decade, ENERGY STAR[reg] has been a driving
force behind the more widespread use of such technological innovations
as LED traffic lights, compact fluorescent lighting, power management
systems for office equipment and consumer electronics, and low standby
energy use. The ENERGY STAR[reg] program allows manufacturers of
products with superior energy efficiency that meet or exceed specified
criteria to use the ENERGY STAR[reg] logo on their products to assist
consumers in selecting the energy efficient products. It has been so
successful that, in 2005, it saved U.S. consumers, businesses, and
Government agencies enough energy to avoid greenhouse gas emissions
equivalent to those from 23 million cars while saving $12 billion on
utility bills.
FEMP was designed to reduce energy consumption in Federal
buildings. The program began in 1993 to assist Federal purchasers in
specifying and acquiring energy efficient products in direct
acquisitions, as part of capital projects, and as products supplied
through service contracts. FEMP publishes Energy Efficient Purchasing
specifications that identify the energy efficiency requirements. Energy
efficiency in the FEMP program is targeted to those products in the top
25% of energy efficiency in their class as well as products with low
standby power. FEMP has many other user aids for acquiring efficient
energy consuming products at their website.
When acquiring energy-using products, FAR 23.203 currently requires
the purchase of ENERGY STAR[reg] or other energy-efficient items listed
on the FEMP Product Energy Efficiency Recommendations list.
Furthermore, FAR 23.203(a)(2) requires that when contracting for
services that will include the provision of energy-using products,
including contracts for design, construction, renovation, or
maintenance of a public building, the specifications shall incorporate
ENERGY STAR[reg] and FEMP energy-efficient products. While these
requirements are stated at FAR 23.2, they are often overlooked in
services and construction contracts because there is no clause to
implement the requirements. Therefore, this proposed rule provides for
a clause to be inserted in solicitations and contracts to ensure that
suppliers and service and construction contractors recognize when
[[Page 70938]]
energy-consuming products must be ENERGY STAR[reg] or FEMP-designated.
The proposed rule--
(1) Defines ``FEMP-designated product,'' as used in FAR Subpart
23.2, as a product that is designated under the Federal Energy
Management Program of the Department of Energy as being among the
highest 25 percent of equivalent products for energy efficiency (42
U.S.C. 8259b);
(2) Provides that the term ``product,'' as used in the subpart,
does not include any energy consuming product or system designed or
procured for combat or combat-related missions (42 U.S.C. 8259b);
(3) Consistent with the Energy Policy Act of 2005, provides for use
of the terms ``energy-consuming'' and ``FEMP-designated product'' vice
``energy-using'' and ``FEMP Product Energy Efficiency Recommendations
product list'', respectively;
(4) Transfers the responsibility for imposing the requirement for
ENERGY STAR[reg] or FEMP-designated products from contract
specifications to a contract clause;
(5) Provides two exemptions for acquiring ENERGY STAR[reg] or FEMP-
designated products; and
(6) Prescribes a contract clause to be used in all solicitations
and contracts when energy-consuming products will be--
(a) Delivered by the contractor;
(b) Furnished by the contractor in the performance of services at a
Federally-controlled facility; or
(c) Specified in the design, construction, renovation, or
maintenance of a facility.
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.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to 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 it only emphasizes existing requirements. Whereas 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, is not expected to be
significant. The rule may affect the types of products these businesses
use during contract performance. Assistance (including product listings
and recommendations) is available to all firms at the ENERGY STAR[reg]
and FEMP websites, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.energystar.gov/products and http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www
.eere.energy.gov/[fxsp0]femp/procurement/[fxsp0]eep--
requirements.[fxsp0]cfm, respectively. Options to comply with the
requirements of the rule can be as simple as purchasing ENERGY
STAR[reg] or FEMP-designated products when performing service and
construction contracts. An Initial Regulatory Flexibility Analysis has,
therefore, not been performed. We invite comments from small businesses
and other interested parties. The Councils will consider comments from
small entities concerning the affected FAR Parts 23, 36, 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
20006-008), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 23, 36, and 52
Government procurement.
Dated: November 27, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
Therefore, DOD, GSA, and NASA propose amending 48 CFR parts 23, 36,
and 52 as set forth below:
1. The authority citation for 48 CFR parts 23, 36, 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 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
2. Amend Subpart 23.2 by--
a. Redesignating sections 23.201, 23.202, 23.203, and 23.204 as
23.202, 23.203, 23.204, and 23.206, respectively;
b. Adding a new sections 23.201, 23.205, and 23.207;
c. Removing from paragraph (b) of the newly designated section
23.202 ``8253,'' and adding ``8253, 8259b,'' in its place;
d. Revising the newly designated section 23.204.
The added and revised text reads as follows:
23.201 Definitions.
As used in this subpart--
FEMP-designated product means a product that is designated under
the Federal Energy Management Program of the Department of Energy as
being among the highest 25 percent of equivalent products for energy
efficiency (42 U.S.C. 8259b).
Product does not include any energy-consuming product or system
designed or procured for combat or combat-related missions (42 U.S.C.
8259b).
* * * * *
23.204 Energy-efficient products.
(a) Unless exempt as provided at 23.205--
(1) When acquiring energy-consuming products listed in the ENERGY
STAR[reg] Program or Federal Energy Management Program (FEMP)--
(i) Agencies shall purchase ENERGY STAR[reg] or FEMP-designated
products; and
(ii) For products that consume power in a standby mode and are
listed on FEMP's Low Standby Power Devices product listing, agencies
shall--
(A) Purchase items which meet FEMP's standby power wattage
recommendation or document the reason for not purchasing such items; or
(B) If FEMP has listed a product without a corresponding wattage
recommendation, purchase items which use no more than one watt in their
standby power consuming mode. When it is impracticable to meet the one
watt requirement, agencies shall purchase items with the lowest standby
wattage practicable; and
(2) When contracting for services or construction that will include
the provision of energy-consuming products, agencies shall specify
products that comply with the applicable requirements in paragraph
(a)(1) of this section.
(b) Information is available via the Internet about--
(1) ENERGY STAR[reg] at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.energystar.gov/products; and (2) FEMP at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eere.energy.gov/[fxsp0]femp/ procurement/
[fxsp0]eep--requirements.cfm.
23.205 Procurement exemptions.
An agency is not required to procure an ENERGY STAR[reg] or FEMP-
designated product if the head of the agency determines in writing
that--
(a) No ENERGY STAR[reg] or FEMP-designated product is reasonably
available that meets the functional requirements of the agency; or
[[Page 70939]]
(b) No ENERGY STAR[reg] or FEMP-designated product is cost
effective over the life of the product taking energy cost savings into
account. Such determinations should be rare as such products are
normally life cycle cost effective.
* * * * *
23.207 Contract clause.
Unless exempt pursuant to 23.205, insert the clause at 52.223-XX,
Energy Efficiency in Energy-Consuming Products, in solicitations and
contracts when energy-consuming products listed in the ENERGY STAR[reg]
Program or FEMP will be--
(a) Delivered by the contractor;
(b) Furnished by the contractor in the performance of services at a
Federally-controlled facility; or
(c) Specified in the design, construction, renovation, or
maintenance of a facility.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
3. Amend section 36.601-3 by redesignating paragraph (a) as
paragraph (a)(1) and adding a new paragraph (a)(2) to read as follows:
36.601-3 Applicable contracting procedures.
(a)(1) * * *
(2) Facility design solicitations and contracts that include the
specification of energy-consuming products must comply with the
requirements at Subpart 23.2.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Amend section 52.212-5 by revising the date of the clause;
redesignating paragraphs (b)(23) through (b)(35) as (b)(24) through
(b)(36), respectively; and adding a new paragraph (b)(23) to read as
follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS (DATE)
* * * * *
(b) * * *
-- (23) 52.223-XX, Energy Efficiency in Energy-Consuming Products
(Date).
* * * * *
5. Amend section 52.213-4 by revising the date of the clause;
redesignating paragraphs (b)(1)(viii) through (b)(1)(xi) as paragraphs
(b)(1)(ix) through (b)(1)(xii), respectively; and adding a new
paragraph (b)(1)(viii) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
TERMS AND CONDITIONS--SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL
ITEMS) (DATE)
* * * * *
(b) * * *
(1) * * *
(viii) 52.223-XX, Energy Efficiency in Energy-Consuming Products
(Date) (42 U.S.C. 8259b). Unless exempt pursuant to 23.205, applies to
contracts when energy-consuming products listed in the ENERGY STAR[reg]
Program or FEMP will be--
(A) Delivered by the Contractor;
(B) Furnished by the Contractor in the performance of services at a
Federally-controlled facility; or
(C) Specified in the design, construction, renovation, or
maintenance of a facility.
* * * * *
6. Add section 52.223-XX to read as follows:
52.223-XX Energy Efficiency in Energy-Consuming Products.
As prescribed in 23.207, insert the following clause:
ENERGY EFFICIENCY IN ENERGY-CONSUMING PRODUCTS (DATE)
(a) Definition. As used in this clause, FEMP-designated product
means a product that is designated under the Federal Energy Management
Program (FEMP) of the Department of Energy as being among the highest
25 percent of equivalent products for energy efficiency.
(b) The Contractor shall ensure that energy-consuming products are
ENERGY STAR[reg] products, or FEMP-designated products, for products
that are--
(1) Delivered;
(2) Furnished by the Contractor in performing services at a
Federally-controlled facility;
(3) Specified in architect-engineer designs, plans and
specifications; or
(4) Provided as an article, material, or supply brought to the
construction site for incorporation into the building or work.
(c) The requirements of paragraph (b) apply unless--
(1) The energy-consuming product is not listed in the
ENERGYSTAR[reg] Program or FEMP; or
(2) Otherwise approved in writing by the Contracting Officer.
(d) Information about these products is available for--
(1) ENERGYSTAR[reg] at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.energystar.gov/products; and (2) FEMP at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eere.energy.gov/[fxsp0]femp/ procurement/
[fxsp0]eep--requirements.cfm.
(End of clause)
[FR Doc. 06-9523 Filed 12-6-06; 8:45 am]
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