This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

14482 

Vol. 77, No. 48 

Monday, March 12, 2012 

1The Council on Environmental Quality (CEQ) 

has issued ‘‘Instructions for Implementing 

Executive Order 13423’’ (CEQ Instructions). See 72 

FR 33504 (June 18, 2007) (also available at 

http://www.fedcenter.gov/programs/eo13423/). 

Among other things, the CEQ Instructions make 

clear that the definition of the term ‘‘nonpetroleum-based fuel’’ is consistent with the 

definition of the term ‘‘alternative fuel,’’ as 

presented in section 301 of the Energy Policy Act 

of 1992. 

DEPARTMENT OF ENERGY 

10 CFR Part 438 

RIN 1904–AB98 

Petroleum Reduction and Alternative 

Fuel Consumption Requirements for 

Federal Fleets 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Energy 

(DOE) today publishes a proposed rule 

to implement section 142 of the Energy 

Independence and Security Act of 2007, 

which amended the Energy Policy and 

Conservation Act and directed the 

Secretary of Energy to issue 

implementing regulations for a 

statutorily-required reduction in 

petroleum consumption and increase in 

alternative fuel consumption for Federal 

fleets. 

DATES: Public comment on this 

proposed rule will be accepted until 

April 11, 2012. 

ADDRESSES: You may submit comments, 

identified by RIN 1904–AB98, by any of 

the following methods: 

1. Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

2. Email to 

EISA_142_Comments@ee.doe.gov. 

Include RIN 1904–AB98 in the subject 

line of the email. Please include the full 

body of your comments in the text of the 

message or as an attachment. 

3. Mail: Address written comments to 

Cyrus Nasseri, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Federal Energy 

Management Program (EE–2L), 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Due to potential delays in DOE’s 

receipt and processing of mail sent 

through the U.S. Postal Service, we 

encourage respondents to submit 

comments electronically to ensure 

timely receipt. 

This notice of proposed rulemaking 

and any comments that DOE receives 

will be made available on the Federal 

Energy Management Program’s Federal 

Fleet Management Web site at http:// 

www1.eere.energy.gov/femp/about/ 

fleet_mgmt.html. 

FOR FURTHER INFORMATION CONTACT: 

Cyrus Nasseri, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Federal Energy 

Management Program (EE–2L), 1000 

Independence Avenue SW., 

Washington, DC 20585–0121; 

cyrus.nasseri@ee.doe.gov. For legal 

issues, contact: Michael Jensen, U.S. 

Department of Energy, Office of the 

General Counsel, Forrestal Building, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585; 

michael.jensen@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction and Background 

II. Applicability 

III. Discussion 

IV. Public Comment Procedures 

V. Regulatory Review 

I. Introduction and Background 

The Energy Independence and 

Security Act of 2007 (EISA, Pub. L. 110– 

140) was signed into law on December 

19, 2007. Section 142 of EISA modified 

Part J of title III of the Energy Policy and 

Conservation Act (EPCA, Pub. L. 94– 

163) by adding a new section 400FF 

entitled ‘‘Federal Fleet Conservation 

Requirements.’’ Section 400FF 

establishes mandatory reductions in 

annual petroleum consumption and 

mandatory increases in annual 

alternative fuel consumption for Federal 

fleets and directs the Secretary of 

Energy (Secretary) to issue 

implementing regulations. The purpose 

of this notice is to present the U.S. 

Department of Energy’s (DOE) proposed 

regulations pursuant to this statutory 

directive. 

New section 400FF(a)(1) provides that 

the Secretary shall issue regulations for 

Federal fleets subject to the alternative 

fueled vehicle (AFV) acquisition 

requirements of section 400AA of EPCA 

to require that, beginning in fiscal year 

(FY) 2010, Federal fleets ‘‘shall reduce 

petroleum consumption and increase 

alternative fuel consumption each year 

by an amount necessary to meet the 

goals described in paragraph (2).’’ 

Section 400FF(a)(2) provides, pursuant 

to paragraph (1), not later than October 

1, 2015, and for each year thereafter, 

Federal fleets ‘‘shall achieve at least a 20 

percent reduction in annual petroleum 

consumption and a 10 percent increase 

in annual alternative fuel consumption, 

as calculated from the baseline 

established by the Secretary for [FY] 

2005.’’ Section 400FF(a)(3) requires the 

regulations to include ‘‘interim numeric 

milestones’’ to assess annual progress 

towards accomplishing the goals 

described in section 400FF(a)(2) and an 

annual Federal fleet reporting 

requirement ‘‘on progress towards 

meeting each of the milestones and the 

2015 goals.’’ Section 400FF(b) sets forth 

requirements for the development and 

implementation of Federal fleet plans 

‘‘to meet the required petroleum 

reduction levels and the alternative fuel 

consumption increases, including the 

milestones specified by the Secretary.’’ 

Section 142 of EISA addresses similar 

matters as the fleet provisions in 

Executive Order (E.O.) 13423, 

‘‘Strengthening Federal Environmental, 

Energy, and Transportation 

Management,’’ 72 FR 3919 (Jan. 26, 

2007), and E.O. 13514, ‘‘Federal 

Leadership in Environmental, Energy, 

and Economic Performance,’’ 74 FR 

52117 (Oct. 8, 2009). However, there are 

notable differences between both 

Executive Orders and EISA section 142. 

Section 2(g) of E.O. 13423 provides, in 

part, that if a fleet consists of at least 20 

motor vehicles, the fleet must reduce its 

‘‘total consumption of petroleum 

products by 2 percent annually through 

the end of [FY] 2015,’’ relative to a 

baseline of FY 2005. Section 2(a)(iii)(C) 

of E.O. 13514 extends the petroleum 

reduction requirements set forth in E.O. 

13423 through the end of FY 2020. 

Section 2(g) of E.O. 13423 also provides, 

in part, that if a fleet consists of at least 

20 motor vehicles, the fleet must 

increase ‘‘the total fuel consumption 

that is non-petroleum-based by 10 

percent annually’’ 1 relative to its FY 

2005 baseline level. 

The language set forth in E.O. 13423 

and E.O. 13514 regarding requirements 


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2The definition of the term ‘‘low-speed electric 

vehicle,’’ as used throughout this proposed rule, is 

synonymous with the definition of the term 

‘‘neighborhood electric vehicles’’ referenced in 

section 142 of EISA. 

for fleet petroleum reductions and 

alternative fuel increases is not identical 

to the language contained in EISA 

section 142. Regarding annual fleet 

alternative fuel consumption, the 

Council on Environmental Quality’s 

‘‘Instructions for Implementing 

Executive Order 13423’’ (CEQ 

Instructions) provides that the 

requirement in E.O. 13423 to increase 

‘‘the total fuel consumption that is nonpetroleum-based by 10 percent 

annually’’ ‘‘is measured relative to the 

prior year’s alternative fuel usage 

levels.’’ The language in EISA, however, 

requires at least a 10 percent increase in 

annual alternative fuel consumption as 

measured relative to a FY 2005 baseline. 

Accordingly, pursuant to this proposed 

rule, for each FY after FY 2015, each 

Federal fleet would be required to 

achieve an increase in its annual 

alternative fuel consumption that is at 

least 10 percent greater than its FY 2005 

alternative fuel consumption level. 

Regarding annual Federal fleet 

petroleum consumption reductions, the 

proposed regulations are 

complementary and consistent with 

those of E.O. 13514. DOE’s positions on 

these matters are discussed in detail in 

section III of the SUPPLEMENTARY

INFORMATION to this proposed rule. 

On May 24, 2011, the President issued 

a memorandum to provide guidance to 

Federal agencies to help achieve the 

Administration’s Federal fleet 

performance goals and to ensure that 

agencies are in compliance with 

Executive Order 13514. See Presidential 

Memorandum, Federal Fleet 

Performance, available at http:// 

www.whitehouse.gov/the-press-office/ 

2011/05/24/presidential-memorandumfederal-fleet-performance. The 

Presidential Memorandum directs that 

by December 31, 2015, all new light 

duty vehicles leased or purchased by 

agencies must be alternative fueled 

vehicles, as that term is defined in the 

memorandum. The Presidential 

Memorandum also directs the U.S. 

General Services Administration (GSA) 

to develop a methodology to determine 

optimal fleet size and composition and 

instructs agencies to use this 

methodology to determine fleet 

inventory targets and to prepare fleet 

management plans to achieve these 

targets no later than December 31, 2015. 

Furthermore, the Presidential 

Memorandum recognizes the need to 

acquire advanced vehicles and to 

decrease Federal fleet petroleum 

consumption in a cost-effective manner. 

Regarding Federal fleet petroleum 

consumption reductions, the proposed 

regulations are complementary and 

consistent with the requirements set 

forth in the May 2011 Presidential 

Memorandum. As with Executive Order 

13514, the Presidential Memorandum 

complements the statutory requirements 

established in section 142 of EISA and 

the implementing regulations proposed 

in this document. 

Today’s proposed rule would 

establish regulations implementing the 

requirements for Federal fleet 

reductions in petroleum and increases 

in alternative fuel. In addition to section 

2(g) of E.O. 13423, section 2(a)(iii)(C) of 

E.O. 13514, and the May 2011 

Presidential Memorandum, fleets also 

would be subject to section 303 of the 

Energy Policy Act of 1992 (Pub. L. 102– 

486), as amended by section 141 of 

EISA, section 400AA(a) of EPCA, as 

amended by section 701 of the Energy 

Policy Act of 2005 (Pub. L. 109–58), and 

sections 246 and 526 of EISA, which 

impose certain requirements related to 

Federal fleet vehicle emissions, Federal 

fleet fueling centers, the procurement 

and acquisition of AFVs, and the use of 

alternative fuels by dual fueled vehicles. 

II. Applicability 

As specified in section 400FF of 

EPCA, today’s proposed rule would 

apply to those ‘‘Federal fleets subject to 

section 400AA’’ of EPCA. 42 U.S.C. 

6374e(a). However, neither section 

400AA nor section 400FF of EPCA 

contains a definition of the term 

‘‘Federal fleet.’’ Accordingly, DOE 

proposes to define the term ‘‘Federal 

fleet’’ to reconcile the applicability of 

the requirements of section 400AA of 

EPCA, E.O. 13423, E.O. 13514, and the 

May 2011 Presidential Memorandum. 

Both E.O. 13423 and E.O. 13514 

establish requirements for agency fleets, 

defining the term ‘‘agency’’ to mean ‘‘an 

executive agency as defined in section 

105 of title 5, United States Code, 

excluding the Government 

Accountability Office.’’ 72 FR at 3922; 

74 FR at 52125. The May 2011 

Presidential Memorandum also defines 

the term ‘‘agency’’ consistent with both 

Executive Orders. Moreover, both E.O. 

13423 and E.O. 13514 apply to agencies 

operating fleets ‘‘of at least 20 motor 

vehicles.’’ 72 FR at 3919; 74 FR at 

52118. Section 400AA of EPCA 

establishes AFV acquisition 

requirements for ‘‘vehicles acquired 

annually for use by the Federal 

Government.’’ 42 U.S.C. 6374(a)(1). The 

AFV acquisition requirements under 

section 400AA of EPCA apply both to 

vehicles acquired by ‘‘agencies’’ and to 

certain vehicles acquired by the U.S. 

Postal Service. See 42 U.S.C. 

6374(a)(3)(B)). 

Upon consideration of the 

requirements of section 400AA of EPCA, 

E.O. 13423, E.O. 13514, and the May 

2011 Presidential Memorandum, DOE 

proposes to define the term ‘‘Federal 

fleet’’ to mean 20 or more Federallyoperated motor vehicles operated within 

the United States. The term ‘‘Federallyoperated’’ would include motor vehicles 

that are operated by an ‘‘Executive 

agency’’ as that term is defined in 

section 105 of title 5, United States 

Code; however, for consistency with the 

requirements of 400AA of EPCA, E.O. 

13423, E.O. 13514, and the May 2011 

Presidential Memorandum, the term 

‘‘Federally-operated’’ would exclude the 

Government Accountability Office and 

would include the U.S. Postal Service. 

DOE further proposes that the term 

‘‘Federal fleet’’ would include 

Federally-operated motor vehicles and 

motor vehicles operated by contractors 

or sub-contractors to the Federal 

Government. However, the term 

‘‘Federal fleet’’ would not include those 

motor vehicles defined under proposed 

10 CFR 438.2(j) as ‘‘exempt vehicles’’ 

and certain motor vehicles that are both 

contractor- or sub-contractor-owned and 

operating under Federal contract. 

Under the proposed rule, a 

determination of annual petroleum and 

alternative fuel consumption levels 

would be required for all Federal fleet 

motor vehicles. The term ‘‘alternative 

fuel consumption,’’ as defined in 

proposed 10 CFR 438.2(d), also would 

include the alternative fuel used in 

exempt vehicles as well as the 

alternative fuel used in low-speed 

electric vehicles (LSEVs) 2 regardless of 

whether the LSEV is intended for use as 

an on-road or non-road vehicle. 

The inclusion in the definition of the 

term ‘‘alternative fuel consumption’’ of 

alternative fuel used in LSEVs and 

exempt vehicles is consistent with the 

existing approach under E.O. 13423, 

and DOE believes such a definition 

would provide a strong incentive for 

Federal fleets to use alternative fuel to 

the maximum extent possible. Similarly, 

including in this definition the 

alternative fuel used in LSEVs would 

encourage the replacement of petroleum 

with alternative fuel. Under the 

proposed definition of ‘‘petroleum 

consumption’’ in 10 CFR 438.2(v), 

though, petroleum used in exempt 

vehicles and LSEVs would not be 

included as part of a Federal fleet’s 

‘‘petroleum consumption.’’ Once again, 


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3Table III.1 does not contain an exhaustive list of 

petroleum consumption and alternative fuel 

consumption requirements for all Federal fleets. 

Rather, Table III.1 includes those Federal fleets that 

comprised 99% of the Federal Government’s 

petroleum consumption in FY 2005. 

this approach is consistent with the 

extant approach under E.O. 13423. 

Under proposed 10 CFR 438.1(j)(2), 

law enforcement motor vehicles would 

be exempt from the proposed 

requirements on Federal fleets. 

Proposed 10 CFR 438.1(o) defines the 

term ‘‘law enforcement motor vehicle’’ 

as ‘‘any motor vehicle that engages in, 

or is equipped to engage in, protective, 

high-speed, or law enforcement 

activities.’’ However, in accordance 

with the May 2011 Presidential 

Memorandum on Federal fleet 

performance, GSA has been directed to 

issue guidance on the applicability and 

implementation of AFV requirements on 

law enforcement vehicles. DOE will 

consider all future GSA guidance in 

development and preparation of the 

final rule. 

While certain vehicles would be 

exempt from inclusion as part of a 

Federal fleet, it is important to recognize 

that the statutory requirements would 

not apply to individual vehicles. 

Instead, the petroleum reduction and 

alternative fuel use requirements are 

fleet-level requirements. 

Under proposed 10 CFR 438.1(b), 

Federal motor vehicles not subject to 

Part 438 because they do not meet the 

definition of the term ‘‘Federal fleet’’ 

under proposed 10 CFR 438.2(l) 

nevertheless would be encouraged to 

comply voluntarily with the regulations. 

III. Discussion 

Pursuant to Table III.1 and the 

discussion contained in this section, 

each Federal fleet subject to this 

proposed rule would be subject to a 

statutorily-required reduction in 

petroleum consumption and increase in 

alternative fuel consumption. 

TABLE III.1—FEDERAL FLEET PETROLEUM REDUCTION AND ALTERNATIVE FUEL CONSUMPTION REQUIREMENTS 3

Agency 

Petroleum Alternative fuel 

FY 2005 

petroleum 

consumption 

baseline 

(GGE) a

FY 2015 

petroleum 

consumption 

requirement 

(GGE) 

FY 2005 

alternative 

fuel 

consumption 

baseline 

(GGE) 

FY 2015 

alternative 

fuel 

consumption 

requirement 

(GGE) 

U.S. Postal Service .................................................................................. 144,801,193 115,840,954 b 1,051,106 1,156,217 

Department of Defense ........................................................................... 79,898,347 63,918,678 b 2,323,322 2,555,654 

Department of the Interior ....................................................................... 18,734,809 14,987,847 d 500,000 550,000 

Department of Agriculture ........................................................................ 18,473,766 14,779,013 d 500,000 550,000 

Department of Veterans Affairs ............................................................... 8,729,032 6,983,226 c 438,282 482,111 

Department of Energy ............................................................................. 7,401,460 5,921,168 b 624,704 687,174 

U.S. Army Corps of Engineers ................................................................ 4,933,502 3,946,802 c 246,944 271,639 

Department of Homeland Security .......................................................... 3,801,408 3,041,126 b 222,648 244,913 

Department of Transportation .................................................................. 3,660,906 2,928,725 c 186,458 205,104 

Department of Labor ................................................................................ 3,318,384 2,654,707 c 168,628 185,491 

Tennessee Valley Authority ..................................................................... 2,929,403 2,343,522 c 146,474 161,121 

Department of Health and Human Services ........................................... 2,043,622 1,634,898 c 103,463 113,809 

National Aeronautics and Space Administration ..................................... 1,277,165 1,021,732 b 148,723 163,595 

Department of Commerce ....................................................................... 1,211,082 968,866 c 60,609 66,669 

Department of Justice .............................................................................. 599,643 479,714 b 113,462 124,808 

General Services Administration ............................................................. 573,245 458,596 c 30,171 33,188 

aGGE is a gasoline gallon equivalent, or the volume of fuel having the same energy content as a gallon of gasoline. 

bFY 2005 alternative fuel consumption baseline established per 10 CFR 438.102(b)(1): Actual FY 2005 alternative fuel consumption. cFY 2005 alternative fuel consumption baseline established per 10 CFR 438.102(b)(2)(a): 5% of FY 2005 total fuel consumption. 

dFY 2005 alternative fuel consumption baseline established per 10 CFR 438.102(b)(2)(b): 500,000 GGE. 

Petroleum Reduction Requirement 

Consistent with section 142 of EISA, 

beginning in FY 2010, each Federal fleet 

would be required to achieve a 

reduction in its annual petroleum 

consumption by an amount necessary to 

meet the October 1, 2015, requirement 

of at least a 20 percent lower annual 

petroleum consumption as relative to its 

FY 2005 baseline level. For FYs 2010 

through 2014, proposed 10 CFR 

438.103(a) sets forth non-mandatory 

interim milestones to assess Federal 

fleet progress in meeting the FY 2015 

annual petroleum reduction 

requirements. Although these interim 

milestones are non-mandatory, the 

milestones are consistent with the 

petroleum reduction requirements set 

forth in E.O. 13514. 

As required under section 142 of EISA 

and as set forth under proposed 10 CFR 

438.101(a), Federal fleets must achieve 

at least a 20 percent reduction in annual 

petroleum consumption ‘‘not later than 

October 1, 2015, and for each year 

thereafter’’; i.e., by October 1, 2015, 

each Federal fleet must achieve at least 

a 20 percent reduction in its annual 

petroleum consumption as calculated 

from the applicable FY 2005 baseline. 

That is, by the end of FY 2015 and for 

each year thereafter, annual Federal 

fleet petroleum consumption must be 

equal to or less than 80 percent of the 

amount that Federal fleet consumed in 

FY 2005. This interpretation is 

complementary of the requirement set 

forth in E.O. 13514 that each Federal 

fleet reduce its ‘‘total consumption of 

petroleum products by a minimum or 2 

percent annually through the end of 

[FY] 2020, relative to a baseline of [FY] 

2005.’’ Accordingly, compliance with 

E.O. 13514 would result in full 

compliance with the petroleum 

reduction requirements set forth in 

EISA. 

Alternative Fuel Use Requirement 

As required under section 142 of 

EISA, beginning in FY 2010, each 

Federal fleet would be required to 

achieve an increase in its annual 

alternative fuel consumption by an 

amount necessary to meet the October 1, 


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2015, requirement established by 

Congress in EISA of at least a 10 percent 

increase in annual alternative fuel 

consumption relative to FY 2005 

baseline levels. For FYs 2010 through 

2014, proposed 10 CFR 438.103(b) sets 

forth non-mandatory interim milestones 

to assess Federal fleet progress in 

meeting the FY 2015 annual alternative 

fuel consumption requirements. 

As noted above, the language set forth 

in E.O. 13423 and E.O. 13514 regarding 

requirements for Federal fleet petroleum 

consumption reductions and alternative 

fuel consumption increases is not 

identical to the language contained in 

EISA section 142. EISA provides that 

each Federal fleet shall achieve at least 

‘‘a 10 percent increase in annual 

alternative fuel consumption’’ whereas 

E.O. 13423 provides that each fleet must 

increase ‘‘the total fuel consumption 

that is non-petroleum-based by 10 

percent annually.’’ The CEQ 

Instructions provide that the 

requirement in E.O. 13423 that fleets 

increase alternative fuel usage ‘‘by 10 

percent annually’’ is ‘‘measured relative 

to the prior year’s alternative fuel usage 

levels.’’ As required under section 142 

of EISA and as set forth in proposed 10 

CFR 438.101(b), however, each Federal 

fleet by October 1, 2015, would be 

required to achieve at least a 10 percent 

increase in its annual alternative fuel 

consumption as calculated from the 

applicable FY 2005 baseline. Therefore, 

by the end of FY 2015 and for each year 

thereafter, annual Federal fleet 

alternative fuel consumption would be 

required to be equal to or greater than 

110 percent of the amount that Federal 

fleet consumed in FY 2005. 

Accordingly, consistent with the 

approach for calculating reductions in 

annual petroleum consumption under 

proposed 10 CFR 438.101(a), increases 

in annual Federal fleet alternative fuel 

consumption under proposed 10 CFR 

438.101(b) would be calculated as 

measured relative to its FY 2005 

baseline. 

For purposes of the proposed rule, 

DOE believes that requiring increases in 

annual alternative fuel consumption 

levels potentially would lead to 

required levels of alternative fuel 

consumption that far exceed the current 

total of fuel use without regard to actual 

demand levels. Therefore, DOE 

proposes that ‘‘not later than October 1, 

2015, and for each year thereafter,’’ each 

Federal fleet would be required to 

ensure that its annual alternative fuel 

consumption is at least 10 percent 

greater than its FY 2005 alternative fuel 

consumption level. DOE notes that the 

EISA section 142 alternative fuel 

consumption requirement and the 

proposed non-mandatory interim 

milestones are not as stringent as the 

annual alternative fuel usage 

requirements set forth in E.O. 13423; 

however, compliance with E.O. 13423 

would result in full compliance with the 

alternative fuel requirements set forth in 

EISA. 

Milestones and Annual Reporting 

EISA section 142 requires that DOE 

establish interim numeric milestones to 

assess annual progress towards 

accomplishing Federal fleet 

requirements for petroleum reduction 

and alternative fuel use. EISA further 

requires the submission of annual 

Federal fleet reports in order to measure 

progress towards meeting each of the 

milestones and the FY 2015 

requirements. 

Under proposed 10 CFR 438.101, not 

later than October 1, 2015, the annual 

petroleum consumption for each 

Federal fleet must be equal to or less 

than 80 percent of the Federal fleet’s FY 

2005 baseline level, and the annual 

alternative fuel consumption for each 

Federal fleet must be equal to or greater 

than 110 percent of the Federal fleet’s 

FY 2005 baseline level. As explained 

above, proposed 10 CFR 438.103(a) and 

(b) set forth non-mandatory interim 

milestones for each Federal fleet to 

reduce its annual petroleum 

consumption and to increase its annual 

alternative fuel consumption between 

FYs 2010 and 2014. 

Progress towards meeting these 

interim milestones would be required to 

be reported annually pursuant to 

proposed 10 CFR 438.104. Under this 

section, DOE would require submission 

of annual reports to DOE containing 

information on the petroleum and 

alternative fuel used in Federal fleet 

motor vehicles. This report also would 

include the alternative fuel used in 

exempt vehicles and LSEVs. All reports 

under this section would be required to 

be submitted through the Federal 

Automotive Statistical Tool Web-based 

reporting system (FAST) (https:// 

fastweb.inel.gov/) no later than 

December 15 of each calendar year. 

Written Plan 

Consistent with section 142 of EISA, 

proposed 10 CFR 438.201 requires the 

development and submission of a 

written plan, including implementation 

dates, to meet the required Federal fleet 

petroleum reduction and alternative fuel 

increase levels under the proposed rule. 

This written plan would contain similar 

information as the fleet management 

plan that agencies are directed to submit 

to GSA under the May 2011 Presidential 

Memorandum. Accordingly, DOE has 

attempted to identify areas in which 

compliance with the proposed 

requirements under 10 CFR 438.201 also 

would be useful in satisfying the 

requirements of the Presidential 

Memorandum. Under proposed 10 CFR 

438.201, the written plan would be 

required to: 

1. Identify the specific measures the 

Federal fleet would use to meet the 

petroleum reduction and alternative 

fuel consumption requirements and 

interim milestones set forth in proposed 

10 CFR 438.101 and 438.103. The plan 

would include some or all of the 

following petroleum reduction 

measures: the Federal fleet’s use of 

alternative fuels; the acquisition of dual 

fueled vehicles; the acquisition of 

vehicles with higher fuel economy, 

including but not limited to hybrid 

electric vehicles, LSEVs, electric 

vehicles, and plug-in hybrid electric 

vehicles if such vehicles are 

commercially available; the substitution 

of light trucks with cars; an increase in 

vehicle load factors; a decrease in 

vehicle miles traveled; a decrease in 

fleet size; and other measures. 

2. Quantify the reductions in 

petroleum consumption and increases 

in alternative fuel consumption 

projected to be achieved by each 

measure for each FY. For each specific 

measure identified above, the plan 

would be required to contain estimates, 

for each FY, of the reduction in 

petroleum consumption or increase in 

alternative fuel consumption in both 

gasoline gallon equivalents (GGEs) and 

percentage increases or decreases from 

the Federal fleet’s FY 2005 baseline 

level. 

3. Specify the date by which each 

measure in the plan will be 

implemented. For each measure 

identified above, the plan would be 

required to contain the estimated date 

when the measure would be fully 

implemented. 

4. Projecting the size and composition 

of the fleet by vehicle class and fuel type 

that corresponds with mission 

requirements. Similar to the direction 

under the Presidential Memorandum for 

agencies to determine their optimal fleet 

inventory, the plan would be required to 

contain an evaluation of minimum 

vehicle requirements needed to support 

mission needs at each fleet location and 

identify opportunities to eliminate 

vehicles that exceed requirements. In 

order to meet this requirement, Federal 

fleets could develop a vehicle 

acquisition and management plan to: (1) 

Acquire AFVs where alternative fuel is 

available; (2) increase overall Federal 

fleet fuel economy through the 

acquisition of smaller-sized vehicles 


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and/or hybrid, electric, or other 

advanced technology vehicles; and (3) 

ensure that the most fuel efficient 

vehicle is used for the required task. 

Federal fleets would be encouraged to 

use the GSA Vehicle Allocation 

Methodology for determining optimum 

fleet inventory in developing the written 

plan under proposed 10 CFR 438.201. 

5. Specify actions to ensure that AFVs 

are acquired and located where the 

appropriate alternative fuel is available. 

The plan would identify the specific 

actions Federal fleets would implement 

to ensure that AFVs are acquired and 

located where alternative fuel is 

available, including the identification of 

areas for future improvement of 

infrastructure to support AFVs in the 

Federal fleet. 

6. Projecting the use of alternative fuel 

by AFVs and LSEVs in each FY. The 

plan would be required to contain 

projections on the use of alternative fuel 

and existing fuel infrastructure by AFVs 

and LSEVs and plans for the installation 

of new alternative fuel infrastructure to 

support those alternative fuel use 

projections. The plan also would be 

required to address actions to reduce or 

eliminate the deployment of AFVs in 

locations where the appropriate 

alternative fuel is not available. 

Each written plan would require 

senior management approval, clearly 

assign responsibility for 

implementation, put forth assumptions 

made in developing projections, and 

address resource requirements 

necessary for success. 

Petroleum and Alternative Fuel 

Consumption FY 2005 Baseline Values 

EISA section 142 directs the Secretary 

to establish FY 2005 Federal fleet 

petroleum consumption and alternative 

fuel consumption baseline values. As 

discussed above, beginning on October 

1, 2015, the annual petroleum 

consumption for each Federal fleet 

would be equal to or less than 80 

percent of that Federal fleet’s FY 2005 

baseline level, and the annual 

alternative fuel consumption for each 

Federal fleet would be equal to or 

greater than 110 percent of that Federal 

fleet’s FY 2005 baseline level. In the 

event that a Federal fleet was not in 

existence in FY 2005, DOE would take 

steps to establish reasonable baselines 

and would prorate the requirements 

based on the date that the Federal fleet 

was established. 

DOE initially has determined under 

the proposed rule that the petroleum 

consumption and alternative fuel 

consumption baseline values should be 

those reported for Federal fleets through 

FAST for FY 2005. DOE would 

encourage that this information be 

reviewed and, if it is found that any 

value is incorrect, contact DOE to 

request a correction. For example, a 

correction might be requested in the 

event that the Federal fleet’s alternative 

fuel use value for FY 2005 submitted 

through FAST did not include the 

electricity used in the Federal fleet’s 

LSEVs. 

Federal fleets with extremely low 

alternative fuel use would be subject to 

a proposed minimum alternative fuel 

baseline. The minimum baseline would 

be the greater of (1) the amount of 

alternative fuel consumed by that 

Federal fleet in FY 2005, expressed in 

GGEs, as reflected in FY 2005 FAST 

data, or (2) the lesser of (a) five percent 

of total Federal fleet vehicle fuel 

(petroleum and alternative fuel) 

consumption and (b) 500,000 GGEs. For 

example, if a Federal fleet reported 

using 1,400,000 gallons of petroleum 

and 600,000 GGEs of alternative fuel in 

its FY 2005 FAST data, that Federal 

fleet’s FY 2005 alternative fuel baseline 

level would be 600,000 GGEs, as 

600,000 GGEs is the greater of (1) the 

amount of alternative fuel consumed by 

that Federal fleet in 2005 (600,000 

GGEs) and (2) five percent of total 

vehicle consumption in FY 2005 

(100,000 gallons, which is less than 

500,000 GGEs). However, if a Federal 

fleet reported using 1,950,000 gallons of 

petroleum and 50,000 GGEs of 

alternative fuel in its FY 2005 FAST 

data, that Federal fleet’s FY 2005 

baseline level would be 100,000 GGEs, 

as 100,000 GGEs is the greater of (1) the 

amount of alternative fuel consumed by 

that Federal fleet in 2005 (50,000 GGEs) 

and (2) five percent of total vehicle 

consumption in FY 2005 (100,000 

gallons, which is less than 500,000 

GGEs). 

Using only actual FY 2005 levels as 

the baseline would require limited (in 

volume) increases in alternative fuel for 

Federal fleets with low FY 2005 

alternative fuel usage and large (in 

volume) increases in alternative fuel for 

Federal fleets with high FY 2005 

alternative fuel usage, thereby requiring 

less alternative fuel use by those Federal 

fleets with historically low alternative 

fuel usage. This approach is being taken 

to encourage those Federal fleets that 

have not been aggressive in substituting 

alternative fuel for petroleum to begin 

doing so and to bring these Federal 

fleets up to levels similar to other 

Federal fleets. 

IV. Public Comment Procedures 

Interested persons are invited to 

participate in this proceeding by 

submitting data, views, or arguments. 

Written comments should be submitted 

to the address, and in the form, 

indicated in the ADDRESSES section of 

this notice of proposed rulemaking. To 

help DOE review the comments, 

interested persons are asked to refer to 

specific proposed rule provisions, if 

possible. 

If you submit information that you 

believe to be exempt by law from public 

disclosure, you should submit one 

complete copy, as well as one copy from 

which the information claimed to be 

exempt by law from public disclosure 

has been deleted. DOE is responsible for 

the final determination with regard to 

disclosure or nondisclosure of the 

information and for treating it 

accordingly under the DOE Freedom of 

Information Act regulations at 10 CFR 

1004.11. 

V. Regulatory Review 

A. Executive Order 12866 

Today’s proposed rule has been 

determined to be a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ 58 FR 51735 

(October 4, 1993). Accordingly, this 

action was subject to review under that 

Executive Order by the Office of 

Information and Regulatory Affairs 

(OIRA) of the Office of Management and 

Budget (OMB). 

B. National Environmental Policy Act 

DOE has determined that this 

proposed rule is covered by the 

categorical exclusion (CX) found in 

DOE’s National Environmental Policy 

Act (NEPA) regulations at paragraph A7 

of Appendix A to subpart D, 10 CFR 

part 1021. The categorical exclusion in 

paragraph A7 (CX A7) encompasses the 

‘‘transfer, lease, disposition or 

acquisition of interests in personal 

property (e.g., equipment and materials) 

* * * if property use is to remain 

unchanged; i.e., the type and magnitude 

of impacts would remain essentially the 

same.’’ DOE’s proposed action in this 

rulemaking is limited to reflecting 

statutory standards and deadlines, 

establishing voluntary milestones, and 

collecting reports. These actions have 

almost no impact on the human 

environment. However, to the extent 

that DOE might be deemed to have some 

role in the agencies’ proposals to change 

the composition of their federal fleets, 

DOE’s proposed action would comprise 

the transfer, lease, disposition or 

acquisition of personal property (i.e., 

vehicles and related infrastructure) 

without changing vehicle use to an 

extent that results in significant impacts 

to the environment. 


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DOE has experience with determining 

that CX A7 encompasses changes to the 

composition of fleets that are not under 

DOE’s control. For example, DOE 

determined that a grant to the Texas 

Railroad Commission for the installation 

of propane refueling infrastructure and 

vehicle purchases was categorically 

excluded from further NEPA review 

under CX A7. See http:// 

cxnepa.energy.gov/docs/002488.PDF. 

DOE made more than twenty additional 

CX determinations under CX A7 for 

Clean Cities grants to State and local 

governments for reducing petroleum 

consumption associated with their 

fleets. This past practice supports DOE’s 

determination that the proposed rule is 

categorically excluded under CX A7. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA, 

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. 

As required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process (68 FR 7990). DOE 

has made its procedures and policies 

available on the Office of General 

Counsel’s Web site: http:// 

www.gc.doe.gov. 

DOE has reviewed today’s proposed 

rule under the provisions of the RFA 

and the procedures and policies 

published on February 19, 2003. The 

proposed rule would apply only to 

Federal agencies, which are not small 

entities under the RFA. For this reason, 

DOE certifies that this proposed rule, if 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, DOE has not prepared an 

initial regulatory flexibility analysis for 

this rulemaking. DOE’s certification and 

supporting statement of factual basis 

will be provided to the Chief Counsel 

for Advocacy of the Small Business 

Administration pursuant to 5 U.S.C. 

605(b). 

D. Paperwork Reduction Act 

This rulemaking does not include any 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (44 U.S.C. 3501 et seq.). 

E. Unfunded Mandates Reform Act of 

1995 

DOE reviewed this regulatory action 

under Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA, Pub. L. 

104–4), which requires each Federal 

agency to assess the effects of Federal 

regulatory actions on State, local, and 

Tribal governments and the private 

sector. For proposed regulatory actions 

likely to result in a rule that may cause 

expenditures by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement assessing the resulting costs, 

benefits and other effects of the rule on 

the national economy (2 U.S.C. 1532(a) 

and (b)). Section 204 of UMRA requires 

a Federal 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’’ (2 U.S.C. 

1534). Section 203 of UMRA requires an 

agency plan for giving notice and 

opportunity for timely input to 

potentially affected small governments 

that may be affected before establishing 

any requirements that might 

significantly or uniquely affect small 

governments (2 U.S.C. 1533). On March 

18, 1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA (62 FR 12820) (also available at: 

http://www.gc.doe.gov). Today’s 

proposed rule, which would apply only 

to Federal fleets, contains neither an 

intergovernmental mandate nor a 

mandate that may result in the 

expenditure by State, local or Tribal 

governments in the aggregate, or by the 

private sector, of $100 million or more 

in any year. Accordingly, no assessment 

or analysis is required under UMRA. 

F. Treasury and General Government 

Appropriations Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any 

proposed rule that may affect family 

well being. This proposed rule would 

not have any impact on the autonomy 

or integrity of the family as an 

institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

G. Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. DOE has examined this 

proposed rule and initially has 

determined that it would not preempt 

State law and would 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. Therefore, no 

further action is required by Executive 

Order 13132. 

H. 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 the applicable standards in 

sections 3(a) and 3(b) to determine 

either that those standards 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, the proposed 

rule meets the relevant standards of 

Executive Order 12988. 


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I. Treasury and General Government 

Appropriations Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516 note), provides for 

agencies to review most disseminations 

of information to the public under 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (February 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (October 7, 2002). DOE has 

reviewed today’s proposed rule under 

the OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

J. Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OMB a Statement 

of Energy Effects for any proposed 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates or is 

expected to lead to the promulgation of 

a final rule or regulation, and that: (1) 

Is a significant regulatory action under 

Executive Order 12866, or any successor 

order; and (2) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy; or (3) is 

designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

As discussed in Part V.A above, this 

proposed rule has been determined to 

be a ‘‘significant regulatory action’’ 

under Executive Order 12866. Today’s 

action, however, is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy and, 

therefore, is not a significant energy 

action. Nor has this action been 

designated by OIRA as a significant 

energy action. Accordingly, DOE has not 

prepared a Statement of Energy Effects. 

List of Subjects in 10 CFR Part 438 

Energy, Energy conservation, Fuel, 

Motor vehicles, Petroleum, and 

Recordkeeping and reporting 

requirements. 

Issued in Washington, DC, on January 20, 

2012. 

Henry Kelly, 

Acting Assistant Secretary, Energy Efficiency 

and Renewable Energy. 

For the reasons set forth in the 

preamble, the Department of Energy is 

proposing to amend title 10 of the Code 

of Federal Regulations by adding a new 

Part 438 as set forth below: 

PART 438—PETROLEUM REDUCTION 

AND ALTERNATIVE FUEL USE 

REQUIREMENTS FOR FEDERAL 

FLEETS 

Subpart A—General Provisions 

Sec. 

438.1 Purpose and scope. 

438.2 Definitions. 

Subpart B—Petroleum Reduction and 

Alternative Fuel Consumption 

Requirements 

Sec. 

438.100 Purpose and scope. 

438.101 Consumption requirements. 

438.102 FY 2005 baseline. 

438.103 Interim milestones. 

438.104 Annual reporting. 

Subpart C—Plans 

Sec. 

438.200 Purpose and scope. 

438.201 Written plan. 

438.202 Requisite elements. 

438.203 Revision. 

Authority: 42 U.S.C. 6374e; 42 U.S.C. 7101 

et seq. 

Subpart A—General Provisions 

§ 438.1 Purpose and scope. 

(a) The provisions of this part 

implement section 142 of the Energy 

Independence and Security Act of 2007 

(Pub. L. 110–140). 

(b) This part applies to each Federal 

fleet, as that term is defined in section 

438.2(l). Federal motor vehicles not 

subject to this part because they do not 

meet the definition of the term ‘‘Federal 

fleet’’ under 438.2(l) are encouraged to 

comply voluntarily with the 

requirements of this part. 

§ 438.2 Definitions. 

The following definitions apply to 

this part: 

(a) ‘‘Acquire’’ means to take into 

possession or control. 

(b) ‘‘Act’’ means the Energy 

Independence and Security Act of 2007 

(Pub. L. 110–140). 

(c) ‘‘Alternative fuel’’ means the same 

as the definition of ‘‘alternative fuel’’ set 

forth at section 490.2 of this chapter. 

(d) ‘‘Alternative fuel consumption’’ 

means alternative fuel consumed in all 

motor vehicles, including light duty, 

medium duty, and heavy duty motor 

vehicles, in a Federal fleet. The term 

also includes alternative fuel consumed 

in exempt vehicles and the alternative 

fuel consumed in low-speed electric 

vehicles. 

(e) ‘‘Alternative fueled vehicle’’ means 

a dedicated vehicle or a dual fueled 

vehicle, and includes a ‘‘new qualified 

fuel cell motor vehicle’’ as defined in 26 

U.S.C. 30B(b)(3), a ‘‘new advanced lean 

burn technology motor vehicle’’ as 

defined in 26 U.S.C. 30B(c)(3), a ‘‘new 

qualified hybrid motor vehicle’’ as 

defined in 26 U.S.C. 30B(d)(3), and any 

other type of vehicle that the 

Administrator of the Environmental 

Protection Agency demonstrates to the 

Secretary would achieve a significant 

reduction in petroleum consumption. 

(f) ‘‘Dedicated vehicle’’ means— 

(1) a motor vehicle that operates 

solely on alternative fuel; or 

(2) a low-speed electric vehicle. 

(g) ‘‘DOE’’ means the U.S. Department 

of Energy. 

(h) ‘‘Dual fueled vehicle’’ means a 

motor vehicle that meets the criteria for 

a dual fueled automobile as that term is 

defined in section 513(h)(1)(C) of the 

Motor Vehicle Information and Cost 

Savings Act, 49 U.S.C. 32901(a)(9); 

(i) ‘‘Emergency motor vehicle’’ means 

any motor vehicle that is used in an 

emergency capacity at least 75 percent 

of the time. 

(j) ‘‘Exempt vehicle’’ means— 

(1) A motor vehicle used for motor 

vehicle manufacturer product 

evaluations or tests; 

(2) A law enforcement motor vehicle; 

(3) An emergency motor vehicle; 

(4) A military tactical vehicle; 

(5) A motor vehicle owned and 

operated by the Central Intelligence 

Agency; 

(6) A motor vehicle that is not 

licensed for use on roads and highways; 

or 

(7) A Federally-owned motor vehicle 

that is operated solely by an Indian 

nation or a State-run Fish and Wildlife 

service. 

(k) ‘‘FAST’’ means the Federal 

Automotive Statistical Tool developed 

by DOE. 

(l) ‘‘Federal fleet’’ means 20 or more 

Federally-operated motor vehicles 

operated within the United States or 

motor vehicles operated within the 

United States by any contractor or subcontractor to the Federal Government, 

except that the term does not include— 

(1) Exempt vehicles as defined in 

section 438.2(j); 

(2) Motor vehicles owned by a 

contractor or sub-contractor that 

qualifies as a small business under 13 

CFR part 121; 

(3) Motor vehicles owned by a 

contractor or sub-contractor when the 


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relevant contract, including options and 

renewals, is for a period of less than 12 

months; and 

(4) Motor vehicles owned by a 

contractor or sub-contractor when a 

central purpose of the relevant contract 

is neither the provision of motor 

vehicles nor the provision of 

transportation services for people or 

materials on site. 

(m) ‘‘Federally-operated’’ means 

operated by an executive agency as 

defined in section 105 of title 5, United 

States Code, excluding the Government 

Accountability Office, and including the 

U.S. Postal Service. 

(n) ‘‘Fiscal year’’ means, for a given 

year, the 12-month period running from 

October 1 of the prior calendar year 

through September 30 of the given 

calendar year. For example, Fiscal Year 

(FY) 2010 means October 1, 2009, 

through September 30, 2010. 

(o) ‘‘Heavy duty motor vehicle’’ means 

a motor vehicle with a gross vehicle 

weight rating of at least 16,000 pounds 

before any after-market conversion to 

alternative fuel operation. 

(p) ‘‘Law enforcement motor vehicle’’ 

means any motor vehicle that engages 

in, or is equipped to engage in, 

protective, high-speed, or law 

enforcement activities. 

(q) ‘‘Light duty motor vehicle’’ means 

a light duty truck or light duty vehicle, 

as such terms are defined under section 

216(7) of the Clean Air Act (42 U.S.C. 

7550(7)), having a gross vehicle weight 

rating of 8,500 pounds or less before any 

after-market conversion to alternative 

fuel operation. 

(r) ‘‘Low-speed electric vehicle’’ 

means a 4-wheeled on-road or non-road 

vehicle that 

(1) Has a top attainable speed in 1 

mile of more than 20 mph and not more 

than 25 mph on a paved level surface; 

and 

(2) Is propelled by an electric motor 

and an on-board, rechargeable energy 

storage system that is rechargeable using 

an off-board source of electricity. 

(s) ‘‘Medium duty motor vehicle’’ 

means a motor vehicle with a gross 

vehicle weight rating of greater than 

8,500 pounds but less than 16,000 

pounds before any after-market 

conversion to alternative fuel operation. 

(t) ‘‘Military tactical vehicle’’ means a 

motor vehicle designed or modified to 

military specification and used for the 

purpose of providing direct 

transportation support of combat or 

tactical operations or the protection of 

nuclear weapons, and which is not used 

for any other purpose. 

(u) ‘‘Motor vehicle’’ means a selfpropelled vehicle designed for 

transporting persons or property on a 

street or highway. The term includes 

light duty, medium duty, and heavy 

duty motor vehicles. 

(v) ‘‘Petroleum consumption’’ means 

petroleum consumed in all Federal fleet 

motor vehicles, including light duty, 

medium duty, and heavy duty motor 

vehicles. The term excludes both 

petroleum consumed in exempt vehicles 

and petroleum consumed in low-speed 

electric vehicles. 

(w) ‘‘Secretary’’ means the Secretary 

of Energy. 

Subpart B—Petroleum Reduction and 

Alternative Fuel Consumption 

Requirements 

§ 438.100 Purpose and scope. 

This subpart sets forth requirements 

and interim milestones for reductions in 

Federal fleet petroleum consumption 

and increases in Federal fleet alternative 

fuel consumption. 

§ 438.101 Consumption requirements. 

Not later than October 1, 2015, and for 

each year thereafter: 

(a) The annual petroleum 

consumption of each Federal fleet must 

be equal to or less than 80 percent of 

that Federal fleet’s FY 2005 baseline 

level, as determined in accordance with 

section 438.102(a); and 

(b) The annual alternative fuel 

consumption of each Federal fleet plus 

the annual alternative fuel consumption 

by each low-speed electric vehicle and 

exempt vehicle must be equal to or 

greater than 110 percent of the Federal 

fleet’s FY 2005 baseline level, as 

determined in accordance with section 

438.102(b). 

In the event that a Federal fleet was 

not in existence in FY 2005, DOE will 

prorate the requirements set forth in this 

section based on the date that the 

Federal fleet was established. 

§ 438.102 FY 2005 baseline. 

The applicable FY 2005 baseline 

under section 438.101 for each Federal 

fleet is: 

(a) With respect to annual petroleum 

consumption, the amount of petroleum 

consumed by that Federal fleet in FY 

2005 expressed in gasoline gallon 

equivalents, as reflected in the FAST 

data submitted to DOE for that Federal 

fleet for FY 2005; and 

(b) With respect to annual alternative 

fuel consumption, the greater of: 

(1) The amount of alternative fuel 

consumed by that Federal fleet in FY 

2005 expressed in gasoline gallon 

equivalents, as reflected in the FAST 

data submitted to DOE for that Federal 

fleet for FY 2005, or 

(2) The lesser of: 

a. Five percent of the Federal fleet’s 

total vehicle fuel (petroleum plus 

alternative fuel) consumption in FY 

2005, and 

b. 500,000 gasoline gallon 

equivalents. 

In the event that a Federal fleet was 

not in existence in FY 2005, DOE will 

establish reasonable baselines for that 

Federal fleet. 

§ 438.103 Interim milestones. 

The following non-mandatory interim 

milestones are to be used by each 

Federal fleet to assess its annual 

progress towards meeting the 

consumption requirements in section 

438.101, as calculated from the 

applicable FY 2005 baseline: 

(a) Petroleum consumption 

(1) By September 30, 2010—10 

percent reduction; 

(2) By September 30, 2011—12 

percent reduction; 

(3) By September 30, 2012—14 

percent reduction; 

(4) By September 30, 2013—16 

percent reduction; and 

(5) By September 30, 2014—18 

percent reduction. 

(b) Alternative fuel consumption 

(1) By September 30, 2010—5 percent 

increase; 

(2) By September 30, 2011—6 percent 

increase; 

(3) By September 30, 2012—7 percent 

increase; 

(4) By September 30, 2013—8 percent 

increase; and 

(5) By September 30, 2014—9 percent 

increase. 

§ 438.104 Annual reporting. 

Beginning in FY 2010, the status of 

each Federal fleet must be reported 

annually in order to measure Federal 

fleet progress towards meeting the 

interim milestones set forth in section 

438.103 and the consumption 

requirements set forth in section 

438.101. Reports under this section 

must be submitted to DOE through the 

FAST system no later than December 15 

of each calendar year. Each report must 

include the petroleum and alternative 

fuel used in all Federal fleet motor 

vehicles. Each report also must include 

the alternative fuel used in exempt 

vehicles and the alternative fuel used in 

low-speed electric vehicles. 

Subpart C—Plans 

§ 438.200 Purpose and scope. 

This subpart sets forth provisions 

concerning Federal fleet plans for 

meeting the petroleum consumption 

reductions and alternative fuel 

consumption increases set forth in 

subpart B. 


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§ 438.201 Written plan. 

No later than December 31, 2012, a 

written plan must be submitted to DOE 

that specifies each Federal fleet’s 

strategy for meeting the consumption 

requirements set forth in section 

438.101, including the interim 

milestones provided in section 438.103. 

Plans must be sent to the U.S. 

Department of Energy, Office of Energy 

Efficiency and Renewable Energy, 

Federal Energy Management Program 

(EE–2L), 1000 Independence Avenue 

SW., Washington, DC 20585, or such 

other address as DOE may provide by 

notice in the Federal Register. 

§ 438.202 Requisite elements. 

The written plan must: 

(a) Identify the specific measures that 

the Federal fleet will rely upon to meet 

the consumption requirements and 

interim milestones, such as plans for 

right-sizing the Federal fleet and 

strategies for reducing vehicle miles 

traveled; 

(b) Quantify (in percentage and in 

gasoline gallon equivalents), for each 

measure set forth in the plan, the 

reduction in petroleum consumption, 

and the increase in alternative fuel 

consumption projected to be achieved 

by the measure in each FY; 

(c) Specify the date by which each 

measure set forth in the plan will be 

implemented; 

(d) Quantify the composition of the 

Federal fleet by vehicle class and fuel 

type, ensuring that it is correctly sized 

to support mission requirements in each 

FY; 

(e) Specify actions to ensure that 

alternative fueled vehicles are acquired 

and located where the appropriate 

alternative fuel is available; and 

(f) Quantify (in percentage) the use of 

alternative fuel by alternative fueled 

vehicles and low-speed electric vehicles 

in each FY. 

§ 438.203 Revision. 

Whenever an annual report under 

section 438.104 indicates that the 

Federal fleet failed to meet an interim 

milestone under section 438.103, the 

plan previously developed and 

submitted under this subpart must be 

revised and resubmitted to the DOE 

Federal Energy Management Program 

within 180 days of submission of the 

annual report. 

[FR Doc. 2012–5876 Filed 3–9–12; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

RIN 0750–AH57 

Defense Federal Acquisition 

Regulation Supplement: Alleged 

Crimes By or Against Contractor 

Personnel (DFARS Case 2012–D006) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

expand coverage on contractor 

requirements and responsibilities 

relating to alleged crimes by or against 

contractor personnel. 

DATES: Comment Date: Comments on 

the proposed rule should be submitted 

in writing to the address shown below 

on or before May 11, 2012, to be 

considered in the formation of a final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2012–D006, 

using any of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘DFARS Case 2012–D006’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2012– 

D006.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2012– 

D006’’ on your attached document. 

• Email: dfars@osd.mil. Include 

DFARS Case 2012–D006 in the subject 

line of the message. 

• Fax: 571–372–6094. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Meredith 

Murphy, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: 

Meredith Murphy, telephone 571–372– 

6098. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

clause at 252.225–7040, Contractor 

Personnel Authorized to Accompany 

U.S. Armed Forces Deployed Outside 

the United States, to expand coverage 

on contractor requirements and 

responsibilities regarding alleged crimes 

by or against contractor personnel. The 

expanded coverage is proposed to apply 

to contingency operations, humanitarian 

or peacekeeping operations, or other 

military operations when the latter are 

designated by the combatant 

commander. These requirements 

currently apply only to DoD contracts 

performed in Iraq and Afghanistan. 

Expanding the coverage worldwide will 

provide contractors the guidance they 

need to take actions if such alleged 

offenses occur. 

Currently, the clause at 252.225–7040 

is prescribed at 225.7402–5(a). The 

clause prescription requires insertion of 

the clause in solicitations and contracts 

that authorize contractor personnel to 

accompany U.S. Armed Forces 

deployed outside the United States in 

(1) contingency operations; (2) 

humanitarian or peacekeeping 

operations; or (3) other military 

operations or military exercises, when 

designated by the combatant 

commander. The expanded DFARS 

clause will require the contractor to 

provide information to contractor 

personnel who perform work on a 

contract in those countries about how 

and where to report an alleged crime 

and, for contractor personnel seeking 

whistleblower protection, where to seek 

assistance. The crimes referred to are 

alleged offenses under the Uniform 

Code of Military Justice (10 U.S.C. 47) 

or the Military Extraterritorial 

Jurisdiction Act (18 U.S.C. 212). The 

clause also provides a list of the 

appropriate investigative authorities to 

which suspected offenses can be 

reported, e.g., ‘‘U.S. Army Criminal 

Investigations Division at http:// 

www.cid.army.mil/reportacrime.html,’’ 

and contact information for contractor 

personnel seeking whistleblower 

protection. This information is required 

by the terms of the clause to be provided 

to contractor personnel before they 

begin work on a contract in a deployed 

area. 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 


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