[Federal Register Volume 65, Number 125 (Wednesday, June 28, 2000)]
[Rules and Regulations]
[Pages 39784-39786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16298]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 436

RIN 1904-AB07


Energy Savings Performance Contracting; Technical Amendments

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is amending the sunset 
provision

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in its regulations on energy savings performance contracting to 
incorporate the new sunset date established by the Energy Conservation 
Reauthorization Act of 1998. In addition, DOE is updating references to 
certain Federal Acquisition Regulation (FAR) provisions in a section of 
these regulations that deals with unsolicited energy savings 
performance contract proposals.

EFFECTIVE DATE: The final rule is effective on June 28, 2000.

FOR FURTHER INFORMATION CONTACT: Tatiana Strajnic Muessel, Office of 
Federal Energy Management Programs, EE-90, 1000 Independence Ave., 
S.W., Washington, DC 20585; telephone: 202-586-9230.

SUPPLEMENTARY INFORMATION:

I. Explanation of Technical Amendments

    When first enacted, section 801(c) of the National Energy 
Conservation Policy Act provided that the authority to enter into new 
energy savings performance contracts under that Act ``shall cease to be 
effective five years after the date procedures and methods are 
established under subsection (b)'' (42 U.S.C. 8287(c)). DOE 
incorporated this sunset provision in regulations it promulgated on 
April 10, 1995 (60 FR 18334), and codified in Subpart B of 10 CFR Part 
436. Thus, under the original provision, the authority of Federal 
agencies to award energy savings performance contracts expired on April 
10, 2000.
    In the Energy Conservation Reauthorization Act of 1998, Public Law 
105-388, Congress amended the sunset provision relating to energy 
savings performance contracts (42 U.S.C. 8287(c)) to provide that the 
authority to enter into new energy savings performance contracts ceases 
to be effective on October 1, 2003. DOE is promulgating a technical 
amendment to 10 CFR 436.30(a) to incorporate the new statutory sunset 
date in its regulations.
    Today's rule also revises 10 CFR 436.33(b)(1) to update the 
references to the FAR in that paragraph, which relates to DOE's 
consideration of unsolicited proposals for energy savings performance 
contracts.

II. Regulatory and Procedural Requirements

A. Review Under Executive Order 12866

    DOE determined that today's regulatory action is not ``a 
significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729, February 7, 1996) imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
this final rule meets the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. Because DOE 
is not required by the Administrative Procedure Act (5 U.S.C. 553) or 
any other law to propose this technical amendment for public comment, 
DOE did not prepare a regulatory flexibility analysis for this rule.

D. Review Under the Paperwork Reduction Act

    No new collection of information is imposed by this interim final 
rule. Accordingly, no clearance by the Office of Management and Budget 
is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, this rule is covered under the 
Categorical Exclusion in paragraph A5 to subpart D, 10 CFR part 1021, 
which covers rulemakings that interpret or amend an existing regulation 
without changing the environmental effect of the regulation. 
Accordingly, neither an environmental assessment nor an environmental 
impact statement is required.

F. Review under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires 
agencies to develop an accountable process to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that have federalism implications. ``Policies that 
have federalism implications'' is defined in the Executive Order to 
include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' DOE has examined today's rule and has 
determined that it does not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. No further action is required by 
Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each federal agency to prepare a written assessment of the 
effects of any federal mandate in a proposed or final rule that may 
result in the expenditure by state, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million in any one 
year. The Act also requires a federal

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agency to develop an effective process to permit timely input by 
elected officers of state, local, and tribal governments on a proposed 
``significant intergovernmental mandate,'' and it requires an agency to 
develop a plan for giving notice and opportunity for timely input to 
potentially affected small governments before establishing any 
requirement that might significantly or uniquely affect them. This 
final rule does not contain any federal mandate, so these requirements 
do not apply.

H. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule prior to the effective 
date set forth at the outset of this notice. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 436

    Energy, Government contracts.

    Issued in Washington, DC, on June 21, 2000.
Dan W. Reicher
Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set out in the preamble, DOE amends part 436 of 
Chapter II, Title 10 of the Code of Federal Regulations, as follows:

PART 436--FEDERAL ENERGY MANAGEMENT AND PLANNING PROGRAMS [AMENDED]

    1. The authority citation for Part 436 continues to read as 
follows:

    Authority: 42 U.S.C. 6361; 42 U.S.C. 8251-8263; 42 U.S.C. 8287-
8287(c).

    2. Section 436.30 in Subpart B, is amended in paragraph (a) by 
revising the first sentence to read as follows:


Sec. 436.30  Purpose and scope.

    (a) General. This subpart provides procedures and methods which 
apply to Federal agencies with regard to the award and administration 
of energy savings performance contracts awarded on or before September 
30, 2003. * * *
* * * * *

    3. Section 436.33 in Subpart B is amended by revising paragraph 
(b)(1) to read as follows:


Sec. 436.33  Procedures and methods for contractor selection.

* * * * *
    (b) * * *
    (1) Consider unsolicited energy savings performance contract 
proposals from firms on a qualified contractor list under this subpart 
which include technical and price proposals and the text of any 
financing agreement (including a lease-acquisition) without regard to 
the requirements of 48 CFR 15.602 and 15.602-2(a)(1); 48 CFR 15.603; 
and 48 CFR 15.607(a), (a)(2), (a)(3), (a)(4) and (a)(5).
* * * * *

[FR Doc. 00-16298 Filed 6-27-00; 8:45 am]
BILLING CODE 6450-01-P