Federal Register / Vol. 71, No. 235 / Thursday, December 7, 2006 / Proposed Rules 70937 

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance.’’) 

Dated: November 30, 2006. 

David I. Maurstad, 

Director, Mitigation Division, Federal 

Emergency Management Agency, Department 

of Homeland Security. 

[FR Doc. E6–20790 Filed 12–6–06; 8:45 am] 

BILLING CODE 9110–12–P 

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. 

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:// 

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:// 

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 energyconsuming 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 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 energyefficient products. ENERGY STAR and 

FEMP are two Federal programs 

concerned with energy efficient 

products for Federal purchase. The 

ENERGY STAR and FEMP websites 

(http://www.energystar.gov/products 

and http://www.eere.energy.gov/femp/ 

procurement/eep_requirements.cfm, 

respectively) assist Federal purchasers 

and contractors to identify these types 

of highly efficient products. 

The ENERGY STAR 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 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 program allows 

manufacturers of products with superior 

energy efficiency that meet or exceed 

specified criteria to use the ENERGY 

STAR 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 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 and FEMP energyefficient 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 


sroberts on PROD1PC70 with PROPOSALS
70938 Federal Register / Vol. 71, No. 235 / Thursday, December 7, 2006 / Proposed Rules 

energy-consuming products must be 

ENERGY STAR 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 ‘‘FEMPdesignated product’’ vice ‘‘energyusing’’ and ‘‘FEMP Product Energy 

Efficiency Recommendations product 

list’’, respectively; 

(4) Transfers the responsibility for 

imposing the requirement for ENERGY 

STAR or FEMP-designated products 

from contract specifications to a 

contract clause; 

(5) Provides two exemptions for 

acquiring ENERGY STAR or FEMPdesignated 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 Federallycontrolled 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 and FEMP websites, http:// 

www.energystar.gov/products and 

http://www.eere.energy.gov/femp/ 

procurement/eep_requirements.cfm, 

respectively. Options to comply with 

the requirements of the rule can be as 

simple as purchasing ENERGY STAR 

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 energyconsuming product or system designed 

or procured for combat or combatrelated 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 

Program or Federal Energy Management 

Program (FEMP)—

(i) Agencies shall purchase ENERGY 

STAR 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 at http:// 

www.energystar.gov/products; and (2) 

FEMP at http://www.eere.energy.gov/

femp/ procurement/

eep_requirements.cfm. 

23.205 Procurement exemptions. 

An agency is not required to procure 

an ENERGY STAR or FEMPdesignated product if the head of the 

agency determines in writing that—

(a) No ENERGY STAR or FEMPdesignated product is reasonably 

available that meets the functional 

requirements of the agency; or 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 235 / Thursday, December 7, 2006 / Proposed Rules 70939 

(b) No ENERGY STAR or FEMPdesignated 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 Program or 

FEMP will be—

(a) Delivered by the contractor; 

(b) Furnished by the contractor in the 

performance of services at a Federallycontrolled 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) * * * 

l (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 Program or FEMP will 

be—

(A) Delivered by the Contractor; 

(B) Furnished by the Contractor in the 

performance of services at a Federallycontrolled 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 EnergyConsuming Products. 

As prescribed in 23.207, insert the 

following clause: 

ENERGY EFFICIENCY IN ENERGYCONSUMING 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 products, or FEMPdesignated products, for products that 

are—

(1) Delivered; 

(2) Furnished by the Contractor in 

performing services at a Federallycontrolled 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 

Program or FEMP; or 

(2) Otherwise approved in writing by 

the Contracting Officer. 

(d) Information about these products 

is available for—

(1) ENERGYSTAR at http:// 

www.energystar.gov/products; and 

(2) FEMP at http:// 

www.eere.energy.gov/femp/ 

procurement/eep_requirements.cfm. 

(End of clause) 

[FR Doc. 06–9523 Filed 12–6–06; 8:45 am] 

BILLING CODE 6820–EP–S 

AGENCY FOR INTERNATIONAL 

DEVELOPMENT 

48 CFR Part 719 

RIN 0412–AA58 

Mentor-Prote

 ́

ge

 ́

Program 

AGENCY: U.S. Agency for International 

Development (USAID). 

ACTION: Proposed rulemaking; 

correction. 

SUMMARY: The United States Agency for 

International Development (USAID) is 

correcting the date for receiving public 

comments on the proposed rule 

published on November 22, 2006 in Vol. 

71, No. 225, pp. 67518–67523. The date 

printed was December 8, 2006 but 

should read February 22, 2007. 

DATES: Written comments on the 

proposed rulemaking at 71 FR 67518 

must be received on or before February 

22, 2007. 

FOR FURTHER INFORMATION CONTACT: If 

further questions remain please contact 

Rockfeler P. Herisse, Ph.D. on 202–712–

0064 or rherisse@usaid.gov. 

Dated: December 1, 2006. 

Marilyn Marton, 

Director, Office of Small and Disadvantaged 

Business Utilization (OSDBU). 

[FR Doc. E6–20782 Filed 12–6–06; 8:45 am] 

BILLING CODE 6116–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 061113298–6298–01; I.D. 

110106A] 

RIN 0648–AU91 

Fisheries Off West Coast States; 

Highly Migratory Species Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 


sroberts on PROD1PC70 with PROPOSALS