[Federal Register Volume 71, Number 235 (Thursday, December 7, 2006)]
[Proposed Rules]
[Pages 70937-70939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9523]


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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:
    <bullet> 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.
    <bullet> Fax: 202-501-4067.
    <bullet> 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 
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://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[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://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[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://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[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://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