57690 Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 

State and location Community 

No. 

Effective date authorization/cancellation of 

sale of flood insurance in community 

Current effective 

map date 

Date certain 

Federal assistance no longer 

available in 

SFHAs 

Maud, City of, Bowie County ................. 480057 June 2, 1975, Emerg; December 12, 1978, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

Nash, City of, Bowie County ................. 480058 April 7, 1975, Emerg; June 21, 1977, Reg; 

October 19, 2010, Susp.

......do ............... Do. 

Redwater, Town of, Bowie County ........ 480309 April 17, 2009, Emerg; October 19, 2010, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

Upshur County, Unincorporated Areas 481036 February 27, 1981, Emerg; May 1, 1987, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

Wake Village, City of, Bowie County .... 480061 September 24, 1974, Emerg; October 15, 

1985, Reg; October 19, 2010, Susp.

......do ............... Do. 

Region VII 

Kansas: 

Cowley County, Unincorporated Areas 200563 February 26, 1979, Emerg; August 5, 1991, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

Winfield, City of, Cowley County ........... 200071 May 30, 1974, Emerg; March 16, 1981, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

Region VIII 

South Dakota: 

Doland, Town of, Spink County ............ 460079 May 11, 1978, Emerg; November 12, 1985, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

Redfield, City of, Spink County ............. 460081 May 22, 1975, Emerg; November 15, 1985, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

Spink County, Unincorporated Areas .... 460076 March 28, 1978, Emerg; August 5, 1986, 

Reg; October 19, 2010, Susp.

......do ............... Do. 

......do and Do = Ditto. 

Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension. 

Dated: September 15, 2010. 

Edward L. Connor, 

Acting Federal Insurance and Mitigation 

Administrator, Department of Homeland 

Security Federal Emergency Management 

Agency. 

[FR Doc. 2010–23710 Filed 9–21–10; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF ENERGY 

48 CFR Parts 907, 923, 936, 952, and 

970 

RIN 1991–AB95 

Acquisition Regulation: Sustainable 

Acquisition 

AGENCY: Department of Energy. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: The Department of Energy 

(DOE) is amending the Department of 

Energy Acquisition Regulation (DEAR) 

to implement Executive Order 13514, 

Federal Leadership in Environmental, 

Energy and Economic Performance. The 

intent of the rule is to leverage agency 

acquisitions to foster markets for 

sustainable technologies and energy 

efficient and environmentally 

sustainable materials, products, and 

services. 

DATES: Effective Date: October 22, 2010. 

Comment Date: Submit comments to 

the address below by October 22, 2010. 

ADDRESSES: You may submit comments 

on this interim final rule, identified by 

RIN 1991–AB95, by any of the following 

methods: 

• Federal eRulemaking Portal at 

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

instructions for submitting documents. 

• E-mail to 

DEARrulemaking@hq.doe.gov. Include 

Sustainable Acquisition and RIN 1991– 

AB95 in the subject line of the e-mail 

with a copy to 

Richard.langston@hq.doe.gov. 

• Mail to Richard Langston, MA–61, 

U.S. Department of Energy, 1000 

Independence Avenue, SW., 

Washington, DC 20585. 

FOR FURTHER INFORMATION CONTACT: 

Richard Langston at 202–287–1339 or 

Richard.Langston@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Section by Section Analysis 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

B. Review Under Executive Order 12988 

C. Review Under the Regulatory Flexibility 

Act 

D. Review Under the Paperwork Reduction 

Act 

E. Review Under the National 

Environmental Policy Act 

F. Review Under Executive Order 13132 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 13211 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under the Small Business 

Regulatory Enforcement Fairness Act of 

1996 

L. Approval by the Office of the Secretary 

of Energy 

I. Background 

Executive Order (E.O.) 13514, Federal 

Leadership in Environmental, Energy 

and Economic Performance was issued 

October 5, 2009. It is being implemented 

in Federal contracting by FAR Case 

2010–001 which is being processed 

concurrently with this rulemaking. This 

rulemaking will implement and 

supplement FAR Case 2010–001. 

FAR Case 2010–001 was drafted in 

recognition of changing environmental 

circumstances and our Nation’s 

heightened energy demands. These 

circumstances demand that the Federal 

Government lead by example to create 

a clean energy economy that will 

increase prosperity, promote energy 

security, protect the interests of 

taxpayers, and safeguard the health of 

our environment. Executive Order 

13514 requires Federal agencies to 

leverage agency acquisitions to foster 

markets for sustainable technologies and 

energy efficient and environmentally 

sustainable materials, products, and 


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Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 57691 

services. Federal agencies are 

additionally required to design, 

construct, maintain and operate high 

performance sustainable buildings in 

sustainable locations. 

FAR Case 2010–001 carries forward 

certain elements of earlier Executive 

Order 13423, ‘‘Strengthening Federal 

Environmental, Energy, and 

Transportation Management,’’ issued on 

January 26, 2007. That Order 

established the policy that Federal 

agencies shall conduct their 

environmental, transportation, and 

energy-related activities in an 

environmentally, economically, and 

fiscally sound, integrated, continuously 

improving, efficient, and sustainable 

manner. 

This rulemaking implements the 

Executive Orders and FAR Case in DOE 

contracting and more specifically in 

contracts for the operation of DOE 

facilities and motor vehicle fleets. 

The FAR Case is being issued as an 

Interim Final Rule, prior to the receipt 

of public comment. That is because 

urgent and compelling reasons exist to 

promulgate this action as an interim 

final rule, principal of which are the 

prior issuance of both Executive Order 

13514 and E.O. 13423, which the FAR 

rulemaking and this rulemaking are 

intended to implement. The same 

factors warrant our issuance of this 

document as an Interim Final Rule. In 

light of Public Law 98–577, Small 

Business and Federal Procurement 

Competition Enhancement Act of 1989, 

and FAR 1.501, both of which require 

we afford the opportunity for public 

comment before any significant revision 

of the FAR System, this Interim Final 

Rule solicits public comments which 

will be fully considered before 

finalizing this Interim Final Rule. 

II. Section by Section Analysis 

1. Part 907 is amended to add a new 

subpart 907.1, Acquisition Plans, 

consisting of section 907.105(b)(16), 

Environmental and energy conservation 

objectives. 

2. A new section 923.002 is added to 

restate a requirement of E.O. 13423 and 

to prescribe a clause to be used in DOE 

contracts for contractor operation of 

DOE owned facilities or fleets. 

3. A new subpart 923.1, Sustainable 

Acquisition, is added to implement 

23.101 and to explain the Department’s 

Sustainable Acquisition Program. FAR 

Subpart 23.1, Sustainable Acquisition is 

a new Part created by FAR Case 2010– 

001. The new DEAR subpart 923.1 will 

contain sections 923.101, Policy, 

923.102, Applicability to contractors, 

and 923.103, Contract clause. 

4. Subpart 923.4, Use of Recovered 

Materials, containing section 923.4, 

Procedures, is removed as its content is 

duplicative of the updated FAR 23.4. 

5. Subpart 923.7, Contracting for 

Environmentally Preferable and Energy 

Efficient Products and Services 

containing section 923.703, Policy, is 

removed as it is outdated. 

6. A new subpart 923.9, Contractor 

Compliance with Environmental 

Management Systems, is added to 

implement the new FAR 23.9. It consists 

of section 923.903, Contract clause, 

7. A new subpart 936.2, Special 

Aspects of Contracting for Construction, 

is added consisting of section 936.202– 

70 Specifications. 

8. Part 952, Solicitation Provisions 

and Contract Clauses is amended to add 

a new clause titled 952.223–78, 

Sustainable acquisition program. 

9. A new section 970.2301, 

Sustainable Acquisition is added. It 

consists of sections 970.2301–1, Policy, 

and 970.2301–2, Contract clauses. 

10. Section 970.2307, Contracting for 

Environmentally Preferable and Energy 

Efficient Products and Services, 

including 970.2307–1, Motor vehicle 

fleet operations, and 970.2307–2, 

Contract clause, are removed. 

11. The clause at 970.5223–2, 

Affirmative procurement program, is 

removed. 

12. The clause at 970.5223–5, DOE 

Motor Vehicle Fleet Fuel Efficiency, is 

removed. 

13. A new clause 970.5223–6, 

Executive Order 13423, Strengthening 

Federal Environmental, Energy, and 

Transportation Management is added. 

14. A new clause 970.5223–7, 

Sustainable acquisition program, is 

added. 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

This regulatory action has been 

determined not to be a significant 

regulatory action under Executive Order 

12866, Regulatory Planning and Review 

(58 FR 51735, October 4, 1993). 

Accordingly, this interim final rule is 

not subject to review under the 

Executive Order by the Office of 

Information and Regulatory Affairs 

(OIRA) within the Office of Management 

and Budget (OMB). 

B. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, Civil Justice 

Reform (61 FR 4729, February 7, 1996), 

imposes on executive agencies the 

general duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) promote simplification 

and burden reduction. With regard to 

the review required by section 3(a), 

section 3(b) of Executive Order 12988 

specifically requires that executive 

agencies make every reasonable effort to 

ensure that the regulation: (1) Clearly 

specifies the preemptive effect, if any; 

(2) clearly specifies any effect on 

existing Federal law or regulation; (3) 

provides a clear legal standard for 

affected conduct while promoting 

simplification and burden reduction; (4) 

specifies the retroactive effect, if any; (5) 

adequately defines key terms; and (6) 

addresses other important issues 

affecting clarity and general 

draftsmanship under any guidelines 

issued by the Attorney General. Section 

3(c) of Executive Order 12988 requires 

executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or that 

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, these 

regulations meet the relevant standards 

of Executive Order 12988. 

C. Review Under the Regulatory 

Flexibility Act 

This rule has been reviewed under the 

Regulatory Flexibility Act, 5 U.S.C. 601 

et seq., which requires preparation of an 

initial regulatory flexibility analysis for 

any rule that must be proposed for 

public comment and which is likely to 

have a significant economic impact on 

a substantial number of small entities. 

The rule would not have a significant 

economic impact on small entities 

because it imposes no significant 

burdens. Any costs incurred by DOE 

contractors complying with the rule 

would be reimbursed under the 

contract. 

Accordingly, DOE certifies that this 

rule would not have a significant 

economic impact on a substantial 

number of small entities, and, therefore, 

no regulatory flexibility analysis is 

required and none has been prepared. 

D. Review Under the Paperwork 

Reduction Act 

This final rule contains no new 

information collection or recordkeeping 

requirements. Information collection or 

recordkeeping requirements mentioned 

in this rule relative to the 

Environmentally Preferable and 

Sustainable Purchasing Practices clause 


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57692 Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 

of 970.5223–2 are the same burdens 

previously contained in the Affirmative 

Procurement clause being replaced by 

this rule. The clearance number is 

1910–4100 with an expiration date of 

August 31, 2011. 

E. Review Under the National 

Environmental Policy Act 

DOE has concluded that promulgation 

of this rule falls into a class of actions 

which would not individually or 

cumulatively have significant impact on 

the human environment, as determined 

by DOE’s regulations (10 CFR Part 1021, 

Subpart D) implementing the National 

Environmental Policy Act (NEPA) of 

1969 (42 U.S.C. 4321 et seq.). 

Specifically, this rule is categorically 

excluded from NEPA review because 

the amendments to the DEAR would be 

strictly procedural (categorical 

exclusion A6). Therefore, this rule does 

not require an environmental impact 

statement or environmental assessment 

pursuant to NEPA. 

F. Review Under Executive Order 13132 

Executive Order 13132 (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 today’s 

rule and has determined that it does not 

preempt state law and does not have a 

substantial direct effect on the states, on 

the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. No further action 

is required by Executive Order 13132. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4) requires a 

federal agency to perform a detailed 

assessment of costs and benefits of any 

rule imposing a federal mandate with 

costs to state, local or tribal 

governments, or to the private sector, of 

$100 million or more in any single year. 

This rule does not impose a federal 

mandate on state, local or tribal 

governments or on the private sector. 

H. Review Under the 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 rule 

or policy that may affect family wellbeing. This rule will have no impact on 

family well being. 

I. Review Under 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 the OIRA, OMB, 

a Statement of Energy Effects for any 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates or is 

expected to lead to promulgation of a 

final rule, and that: (1) Is a significant 

regulatory action under Executive Order 

12866, or any successor order; or (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 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. 

Today’s rule is not a significant 

energy action. Accordingly, DOE has not 

prepared a Statement of Energy Effects. 

J. Review Under the 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 

implementing 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 rule under the OMB 

and DOE guidelines and has concluded 

that it is consistent with applicable 

policies in those guidelines. 

K. Review Under the Small Business 

Regulatory Enforcement Fairness Act of 

1996 

As required by 5 U.S.C. 801, the 

Department will report to Congress 

promulgation of this rule prior to its 

effective date. The report will state that 

it has been determined that the rule is 

not a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

L. Approval by the Office of the 

Secretary of Energy 

The Office of the Secretary of Energy 

has approved issuance of this final rule. 

List of Subjects in 48 CFR Parts 907, 

923, 936, 952 and 970 

Government procurement. 

Issued in Washington, DC, on September 

14, 2010. 

Patrick M. Ferraro, 

Acting Director, Office of Procurement and 

Assistance Management, Office of 

Management, Department of Energy. 

Stephen Law, 

Acting Director, Office of Acquisition and 

Supply Management, National Nuclear 

Security Administration. 

■ For the reasons set out in the 

preamble, DOE amends Chapter 9 of 

Title 48 of the Code of Federal 

Regulations as set forth below: 

PART 907—ACQUISITION PLANNING 

■ 1. The authority citation for part 907 

is revised to read as follows: 

Authority: 42 U.S.C. 7101 et seq., and 50 

U.S.C. 2401 et seq. 

■ 2. Add new subpart 907.1, consisting 

of section 907.105, to read as follows: 

Subpart 907.1—Acquisition Plans 

907.105 Contents of written acquisition 

plans. 

(b)(16) Environmental and energy 

conservation objectives. 

Incorporate sustainable building 

considerations including building 

location and regional planning 

considerations into planning for new 

Federal facilities and leases. 

PART 923—ENVIRONMENT, 

CONSERVATION, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

■ 3. The authority citation for part 923 

continues to read as follows: 

Authority: 42 U.S.C. 7101 et seq. and 50 

U.S.C. 2401 et seq. 

■ 4. The heading of part 923 is revised 

as set forth above. 

■ 5. Add a new section 923.002, to part 

923 to read as follows: 

923.002 Policy. 

(a) Requirement. FAR 23.002 and 

Section 3(e) of Executive Order 13423, 

Strengthening Federal Environmental, 

Energy and Transportation 

Management, require contracts for the 

operation of Government-owned 

facilities or Government-owned motor 

vehicle fleets to include provisions that 

obligate the contractor to comply with 


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Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 57693 

the requirements of Executive Order 

13423 to the same extent as the Federal 

agency would be required to comply if 

the agency operated the facility or fleet. 

(b) Contract clause. Insert the clause 

at 970.5223–6, Executive Order 13423, 

Strengthening Federal Environmental, 

Energy, and Transportation 

Management, in contracts for Contractor 

operation of a DOE facility or motor 

vehicle fleet. 

■ 6. Add a new subpart 923.1 to part 

923, to read as follows: 

Subpart 923.1—Sustainable 

Acquisition 

Sec. 

923.101 Policy. 

923.102 Applicability to contractors. 

923.103 Contract clauses. 

923.101 Policy. 

The Department has promoted energy 

efficient products as well as products 

with recycled or biobased content as 

these products have become more 

common and the market has become 

more energy and resource aware. All of 

these products and services and others 

with environmentally preferable 

attributes are captured in the DOE 

Sustainable Acquisition Program. 

Guidance on all these products may be 

found at: http://www.hss.energy.gov/pp/ 

epp/. 

923.102 Applicability to contractors. 

Many of the Department’s major 

facilities are operated by contractors. 

Provisions regarding those contracts 

may be found at Part 970 of this chapter. 

At other locations, the Department 

makes significant use of contractors to 

operate and maintain its facilities. As 

such, the Department encourages the 

greatest possible use of energy efficient 

and environmentally sustainable 

products and services by its facility 

support contractors. The DOE 

Sustainable Acquisition Program is to be 

followed by all contractors operating 

DOE facilities or motor vehicle fleets. 

923.103 Contract clauses. 

Insert the clause at 952.223–78, 

Sustainable Acquisition Program, or its 

Alternate I, in all contracts under which 

the contractor operates Governmentowned facilities or Government-owned 

fleets or performs construction at a 

Government-owned facility. All such 

contracts should also include the 

following clauses: FAR 52.223–2, 

Affirmative Procurement of Biobased 

Products under Service and 

Construction Contracts; FAR 52.223–10, 

Waste Reduction Program; FAR 52.223– 

XX, Compliance with Environmental 

Management Systems (see 923.903 

regarding the applicability of this clause 

to specific DOE contracts); FAR 52.223– 

15, Energy Efficiency in Energy 

Consuming Products; and FAR 52.223– 

17, Affirmative Procurement of EPAdesignated Items in Service and 

Construction Contracts. 

Subpart 923.4 [Removed] 

■ 7. Remove subpart 923.4, including 

sections 923.405 and 923.471. 

Subpart 923.7 [Removed] 

■ 8. Remove subpart 923.7 including 

section 923.703. 

■ 9. Add a new subpart 923.9 consisting 

of section 923.903 to read as follows: 

Subpart 923.9—Contractor Compliance 

With Environmental Management 

Systems 

§ 923.903 Contract clause. 

The FAR Environmental Management 

Systems clause at 52.223–XX should be 

used in contracts where the contractor 

operates a DOE site or portion thereof. 

Some DOE sites have a single 

Environmental Management System for 

the site while others have separate 

Environmental Management Systems for 

various portions of the site which may 

be operated by different contractors. 

Check with local environmental 

management personnel regarding the 

applicability of the FAR 52.223–XX 

clause to a specific contract. 

PART 936—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

■ 10. The authority citation for part 936 

continues to read as follows: 

Authority: 42 U.S.C. 7101 et seq. and 50 

U.S.C. 2401 et seq. 

■ 11. Add a new section 936.202–71 to 

subpart 936.2 to read as follows: 

936.202–71 Specifications. 

When developing specifications for 

the work to be performed, plan for ways 

to ensure that construction and 

demolition debris can be diverted or 

recycled in sufficient quantities as to 

ensure that the Agency goal from 

section 2(e) of Executive Order 13514 of 

diverting at least 50% of the debris 

stream may be attained. 

PART 952—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 12. The authority citation for part 952 

continues to read as follows: 

Authority: 42 U.S.C. 7101 et seq. and 50 

U.S.C. 2401 et seq. 

■ 13. Add a new section 952.223–78, to 

read as follows: 

952.223–78 Sustainable acquisition 

program. 

In accordance with 923.103 insert the 

following clause or its Alternate I in all 

contracts under which the contractor 

operates Government-owned facilities, 

motor vehicle fleets, or significant 

portions thereof or performs 

construction at a DOE facility. 

SUSTAINABLE ACQUISITION PROGRAM 

(OCT 2010) 

(a) Pursuant to Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, and 

Executive Order 13514, Federal Leadership 

in Environmental, Energy, and Economic 

Performance, the Department of Energy 

(DOE) is committed to managing its facilities 

in an environmentally preferable and 

sustainable manner that will promote the 

natural environment and protect the health 

and well being of its Federal employees and 

contractor service providers. In the 

performance of work under this contract, the 

Contractor shall provide its services in a 

manner that promotes the natural 

environment, reduces greenhouse gas 

emissions and protects the health and well 

being of Federal employees, contract service 

providers and visitors using the facility. 

(b) Green purchasing or sustainable 

acquisition has several interacting initiatives. 

The Contractor must comply with initiatives 

that are current as of the contract award date. 

DOE may require compliance with revised 

initiatives from time to time. The Contractor 

may request an equitable adjustment to the 

terms of its contract using the procedures in 

the Changes clause of the contract. The 

initiatives important to these Orders are 

explained on the following Government or 

Industry Internet Sites: 

(1) Recycled Content Products are 

described at http://epa.gov/cpg. 

(2) Biobased Products are described at 

http://www.biopreferred.gov/. 

(3) Energy efficient products are at http:// 

energystar.gov/products for Energy Star 

products. 

(4) Energy efficient products are at http:// 

www.femp.energy.gov/procurement for FEMP 

designated products. 

(5) Environmentally preferable and energy 

efficient electronics including desktop 

computers, laptops and monitors are at 

http://www.epeat.net the Electronic Products 

Environmental Assessment Tool (EPEAT) the 

Green Electronics Council site. 

(6) Green house gas emission inventories 

are required, including Scope 3 emissions 

which include contractor emissions. These 

are discussed at Section 13 of Executive 

Order 13514 which can be found at http:// 

www.archives.gov/federal-register/executiveorders/disposition.html. 

(7) Non-Ozone Depleting Alternative 

Products are at http://www.epa.gov/ozone/ 

strathome.html. 

(8) Water efficient plumbing products are 

at http://epa.gov/watersense. 

(c) The clauses at FAR 52.223–2, 

Affirmative Procurement of Biobased 


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57694 Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 

Products under Service and Construction 

Contracts, 52.223–15, Energy Efficiency in 

Energy Consuming Products, and 52.223–17 

Affirmative Procurement of EPA–Designated 

Items in Service and Construction Contracts, 

require the use of products that have 

biobased content, are energy efficient, or 

have recycled content. To the extent that the 

services provided by the Contractor require 

provision of any of the above types of 

products, the Contractor must provide the 

energy efficient and environmentally 

sustainable type of product unless that type 

of product— 

(1) Is not available; 

(2) Is not life cycle cost effective or does 

not exceed 110% of the price of alternative 

items if life cycle cost data is unavailable 

(EPEAT is an example of lifecycle costs that 

have been analyzed by DOE and found to be 

acceptable at the silver and gold level); 

(3) Does not meet performance needs; or, 

(4) Cannot be delivered in time to meet a 

critical need. 

(d) In the performance of this contract, the 

Contractor shall comply with the 

requirements of Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, (http:// 

www.epa.gov/greeningepa/practices/ 

eo13423.htm) and Executive Order 13514, 

Federal Leadership in Environmental, 

Energy, and Economic Performance (http:// 

www.archives.gov/federal-register/executiveorders/disposition.html). The Contractor 

shall also consider the best practices within 

the DOE Acquisition Guide, Chapter 23, 

Acquisition Considerations Regarding 

Federal Leadership in Environmental, 

Energy, and Economic Performance. This 

guide includes information concerning 

recycled content products, biobased 

products, energy efficient products, water 

efficient products, alternative fuels and 

vehicles, non-ozone depleting substances and 

other environmentally preferable products 

and services. This guide is available on the 

Internet at: http://management.energy.gov/ 

documents/AcqGuide23pt0Rev1.pdf. 

(e) Contractors must establish and maintain 

a documented energy management program 

which includes requirements for energy and 

water efficient equipment, EnergyStar or 

WaterSense, as applicable and procedures for 

verification of purchases, following the 

criteria in DOE Order 430.2B, Departmental 

Energy, Renewable Energy, and 

Transportation Management, Attachment 1, 

or its successor to the extent required 

elsewhere in the contract. This requirement 

should not be flowed down to 

subcontractors. 

(f) In complying with the requirements of 

paragraph (c) of this clause, the Contractor(s) 

shall coordinate its activities with and 

submit required reports through the 

Environmental Sustainability Coordinator or 

equivalent position. Reporting under this 

paragraph and paragraphs (g) and (h) of this 

clause is only required if the contract or 

subcontract offers subcontracting 

opportunities for energy efficient and 

environmentally sustainable products or 

services exceeding $100,000 in any contract 

year. 

(g) The Contractor shall prepare and 

submit performance reports, if required, 

using prescribed DOE formats, at the end of 

the Federal fiscal year, on matters related to 

the acquisition of environmentally preferable 

and sustainable products and services. This 

is a material delivery under the contract. 

Failure to perform this requirement may be 

considered a failure that endangers 

performance of this contract and may result 

in termination for default. 

(h) These provisions shall be flowed down 

only to first tier subcontracts exceeding the 

simplified acquisition threshold that support 

operation of the DOE facility and offer 

significant subcontracting opportunities for 

energy efficient or environmentally 

sustainable products or services. The 

Subcontractor, if subcontracting 

opportunities for sustainable and 

environmentally preferable products or 

services exceed the threshold in paragraph (f) 

of this clause, will comply with the 

procedures in paragraphs (c) through (f) of 

this clause regarding the collection of all data 

necessary to generate the reports required 

under paragraphs (c) through (f) of this 

clause, and submit the reports directly to the 

Prime Contractor’s Environmental 

Sustainability Coordinator at the supported 

facility. The Subcontractor will advise the 

Contractor if it is unable to procure energy 

efficient and environmentally sustainable 

items and cite which of the reasons in 

paragraph (c) of this clause apply. The 

reports may be submitted at the conclusion 

of the subcontract term provided that the 

subcontract delivery term is not multi-year in 

nature. If the delivery term is multi-year, the 

Subcontractor shall report its 

accomplishments for each Federal fiscal year 

in a manner and at a time or times acceptable 

to both parties. Failure to comply with these 

reporting requirements may be considered a 

breach of contract with attendant 

consequences. 

(i) When this clause is used in a 

subcontract, the word ‘‘Contractor’’ will be 

understood to mean ‘‘Subcontractor.’’ 

(End of Clause) 

Alternate I for Construction Contracts and 

Subcontracts (OCT 2010)—When contracting 

for construction, alteration, or renovation of 

DOE facilities, substitute the following 

paragraphs (d) through (i): 

(d) In the performance of this contract, the 

Contractor shall comply with the 

requirements of Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, (http:// 

www.epa.gov/greeningepa/practices/ 

eo13423.htm) and Executive Order 13514, 

Federal Leadership in Environmental, 

Energy, and Economic Performance (http:// 

www.archives.gov/federal-register/executiveorders/disposition.html). The Contractor 

shall also consider the best practices within 

the DOE Acquisition Guide, Chapter 23, 

Acquisition Considerations Regarding 

Federal Leadership in Environmental, 

Energy, and Economic Performance. This 

guide includes information concerning 

recycled content products, biobased 

products, energy efficient products, water 

efficient products, alternative fuels and 

vehicles, non-ozone depleting substances and 

other environmentally preferable products 

and services. This guide is available on the 

Internet at: http://management.energy.gov/ 

documents/AcqGuide23pt0Rev1.pdf. When 

developing the Bill of Materials for approval 

of the Contracting Officer or Representative, 

the contractor shall specify energy efficient 

and environmentally sustainable materials to 

the extent possible within the constraints of 

the general design specifications. Compliance 

with the Guiding Principles for Federal 

Leadership in High Performance and 

Sustainable Buildings (Guiding Principles) 

shall be achieved through certification to the 

Leadership in Energy and Environmental 

Design (LEED) Gold level under the LEED 

rating system most suited to the building 

type. 

(e) [Reserved] 

(f) In complying with the requirements of 

paragraph (c) of this clause, the Contractor(s) 

shall coordinate its activities with and 

submit required reports through the 

Environmental Sustainability Coordinator or 

equivalent position. Reporting under this 

paragraph and paragraphs (g) and (h) of this 

clause is only required if the contract or 

subcontract offers subcontracting 

opportunities for energy efficient and 

environmentally sustainable products or 

services exceeding $100,000 in any contract 

year, except for reporting on high 

performance sustainable buildings which 

may be required elsewhere in this contract. 

(g) The Contractor shall prepare and 

submit performance reports using prescribed 

DOE formats, at the end of the Federal fiscal 

year, on matters related to the acquisition of 

energy efficient and environmentally and 

sustainable products and services. This is a 

material delivery under the contract. Failure 

to perform this requirement may be 

considered a failure that endangers 

performance of this contract and may result 

in termination for default. 

(h) These provisions shall be flowed down 

only to first tier construction subcontracts 

exceeding the simplified acquisition 

threshold that support operation of the DOE 

facility and offer significant opportunities for 

designating energy efficient or 

environmentally sustainable products or 

services in the materials selection process. 

The subcontractor, if subcontracting 

opportunities for sustainable and 

environmentally preferable products or 

services exceed the threshold in paragraph (f) 

of this clause, will comply with the 

procedures in paragraphs (c) through (f) of 

this clause regarding the collection of all data 

necessary to generate the reports required 

under paragraphs (c) through (f) of this 

clause, and submit the reports directly to the 

Prime Contractor’s Environmental 

Sustainability Coordinator at the supported 

facility. The subcontractor will advise the 

contractor if it is unable to procure energy 

efficient and environmentally sustainable 

items and cite which of the reasons in 

paragraph (c) of this clause apply. The 

reports may be submitted at the conclusion 

of the subcontract term provided that the 

subcontract delivery term is not multi-year in 

nature. If the delivery term is multi-year, the 

subcontractor shall report its 

accomplishments for each Federal fiscal year 

in a manner and at a time or times acceptable 

to both parties. Failure to comply with these 


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Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 57695 

reporting requirements may be considered a 

breach of contract with attendant 

consequences. 

(i) When this clause is used in a 

subcontract, the word ‘‘Contractor’’ will be 

understood to mean ‘‘Subcontractor.’’ 

(End of Clause) 

PART 970—DOE MANAGEMENT AND 

OPERATING CONTRACTS 

■ 14. The authority citation for part 970 

continues to read as follows: 

Authority: 42 U.S.C. 2201, 2282a, 2282b, 

2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 

et seq. 

■ 15. Add new sections 970.2301, 

970.2301–1, and 970.2301–2 to subpart 

970.23 to read as follows: 

970.2301 Sustainable acquisition. 

970.2301–1 Policy. 

There are many environmentally 

beneficial and resource efficient 

programs described in various subparts 

of FAR Part 23. For ease of use, DOE 

refers to all of these as the DOE 

Sustainable Acquisiton Program with 

guidance for the many products at 

http://www.hss.energy.gov/pp/epp. 

Contractors operating DOE facilities 

shall comply with the requirements of 

Executive Order 13423, Strengthening 

Federal Environmental, Energy and 

Transportation Management, and 

Executive Order 13514, Federal 

Leadership in Environmental, Energy, 

and Economic Performance. The 

contractor shall also consider the best 

practices within the DOE Acquisition 

Guide, Chapter 23, Acquisition 

Considerations Regarding Federal 

Leadership in Environmental, Energy, 

and Economic Performance. 

970.2301–2 Contract clauses. 

(a) Section 3(f) of Executive Order 

13423 requires contractors to comply 

with the provisions of the Order to the 

same extent as the Federal agency 

would be required to comply if it 

operated the facility or fleet. Insert the 

clause at 970.5223–6, Executive Order 

13423, Strengthening Federal 

Environmental, Energy, and 

Transportation Management, in such 

contracts. 

(b) Insert the clause at 970.5223–6, 

Sustainable and Environmentally 

Preferable Purchasing Practices, or its 

Alternate I in contracts for the 

management and operation of DOE 

facilities, or other contracts under 

which the contractor manages 

Government facilities or fleets, or 

conducts mission operations at 

Government facilities, or performs 

construction at DOE facilities. Inclusion 

of this contract clause applies to 

contractors that are responsible for the 

management and operation of the DOE’s 

facilities or the conduct of mission 

operations at the Department’s facilities, 

including elements of the National 

Nuclear Security Administration 

(NNSA), the Power Marketing 

Administrations, and the National 

Laboratories. All such contracts should 

also include the following clauses: FAR 

52.223–2, Affirmative Procurement of 

Biobased Products under Service and 

Construction Contracts; FAR 52.223–10, 

Waste Reduction Program; FAR 52.223– 

XX, Compliance with Environmental 

Management Systems (see 923.903 

regarding the applicability of this clause 

to specific DOE contracts); FAR 52.223– 

15, Energy Efficiency in Energy 

Consuming Products; and FAR 52.223– 

17, Affirmative Procurement of EPAdesignated Items in Service and 

Construction Contracts. 

970.2304, 970.2304–1 and 970.2304–2 

[Removed] 

■ 16. Remove sections 970.2304, 

970.2304–1 and 970.2304–2. 

970.2307, 970.2307–1, and 970.2307–2 

[Removed] 

■ 17. Remove sections 970.2307, 

970.2307–1 and 970.2307–2. 

970.5223–2 and 970.5223–5 [Removed] 

■ 18. Remove 970.5223–2 and 

970.5223–5. 

■ 19. Add 970.5223–6 to subpart 970.52 

to read as follows: 

970.5223–6 Executive Order 13423, 

Strengthening Federal Environmental, 

Energy, and Transportation Management. 

In accordance with the prescriptions 

at 923.002(b) or 970.2301–2(b), insert 

the following in contracts for the 

operation of a DOE facility or motor 

vehicle fleet. 

EXECUTIVE ORDER 13423, 

STRENGTHENING FEDERAL 

ENVIRONMENTAL, ENERGY, AND 

TRANSPORTATION MANAGEMENT (OCT 

2010) 

Since this contract involves Contractor 

operation of Government-owned facilities 

and/or motor vehicles, the provisions of 

Executive Order 13423 are applicable to the 

Contractor to the same extent they would be 

applicable if the Government were operating 

the facilities or motor vehicles. Information 

on the requirements of the Executive Order 

may be found at http://www.archives.gov/ 

federal-register/executive-orders/. 

(End of Clause) 

■ 20. Add a new section 970.5223–7 to 

part 970, to read as follows: 

970.5223–7 Sustainable acquisition 

program. 

As prescribed in 970.2301–2, insert 

the following clause in contracts: 

SUSTAINABLE ACQUISITION PROGRAM 

(OCT 2010) 

(a) Pursuant to Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, and 

Executive Order 13514, Federal Leadership 

in Environmental, Energy, and Economic 

Performance, the Department of Energy 

(DOE) is committed to managing its facilities 

in an environmentally preferable and 

sustainable manner that will promote the 

natural environment and protect the health 

and well being of its Federal employees and 

contractor service providers. In the 

performance of work under this contract, the 

Contractor shall provide its services in a 

manner that promotes the natural 

environment, reduces greenhouse gas 

emissions and protects the health and well 

being of Federal employees, contract service 

providers and visitors using the facility. 

(b) Green purchasing or sustainable 

acquisition has several interacting initiatives. 

The Contractor must comply with initiatives 

that are current as of the contract award date. 

DOE may require compliance with revised 

initiatives from time to time. The Contractor 

may request an equitable adjustment to the 

terms of its contract using the procedures at 

48 CFR 970.5243–1 Changes. The initiatives 

important to these Orders are explained on 

the following Government or Industry 

Internet Sites: 

(1) Recycled Content Products are 

described at http://epa.gov/cpg. 

(2) Biobased Products are described at 

http://www.biopreferred.gov/. 

(3) Energy efficient products are at http:// 

energystar.gov/products for Energy Star 

products. 

(4) Energy efficient products are at http:// 

www.femp.energy.gov/procurement for FEMP 

designated products. 

(5) Environmentally preferable and energy 

efficient electronics including desktop 

computers, laptops and monitors are at 

http://www.epeat.net the Electronic Products 

Environmental Assessment Tool (EPEAT) the 

Green Electronics Council site. 

(6) Green house gas emission inventories 

are required, including Scope 3 emissions 

which include contractor emissions. These 

are discussed at Section 13 of Executive 

Order 13514 which can be found at http:// 

www.archives.gov/federal-register/executiveorders/disposition.html. 

(7) Non-Ozone Depleting Alternative 

Products are at http://www.epa.gov/ozone/ 

strathome.html. 

(8) Water efficient plumbing products are 

at http://epa.gov/watersense. 

(c) The clauses at FAR 52.223–2, 

Affirmative Procurement of Biobased 

Products under Service and Construction 

Contracts, 52.223–15, Energy Efficiency in 

Energy Consuming Products, and 52.223–17 

Affirmative Procurement of EPA–Designated 

Items in Service and Construction Contracts, 

require the use of products that have 

biobased content, are energy efficient, or 


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57696 Federal Register / Vol. 75, No. 183 / Wednesday, September 22, 2010 / Rules and Regulations 

have recycled content. To the extent that the 

services provided by the Contractor require 

provision of any of the above types of 

products, the Contractor must provide the 

energy efficient and environmentally 

sustainable type of product unless that type 

of product— 

(1) Is not available; 

(2) Is not life cycle cost effective (or does 

not exceed 110% of the price of alternative 

items if life cycle cost data is unavailable), 

EPEAT is an example of lifecycle costs that 

have been analyzed by DOE and found to be 

acceptable at the silver and gold level; 

(3) Does not meet performance needs; or, 

(4) Cannot be delivered in time to meet a 

critical need. 

(d) In the performance of this contract, the 

Contractor shall comply with the 

requirements of Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, (http:// 

www.epa.gov/greeningepa/practices/ 

eo13423.htm) and Executive Order 13514, 

Federal Leadership in Environmental, 

Energy, and Economic Performance (http:// 

www.archives.gov/federal-register/executiveorders/disposition.html). The Contractor 

shall also consider the best practices within 

the DOE Acquisition Guide, Chapter 23, 

Acquisition Considerations Regarding 

Federal Leadership in Environmental, 

Energy, and Economic Performance. This 

guide includes information concerning 

recycled content products, biobased 

products, energy efficient products, water 

efficient products, alternative fuels and 

vehicles, non ozone depleting substances and 

other environmentally preferable products 

and services. This guide is available on the 

Internet at: http://management.energy.gov/ 

documents/AcqGuide23pt0Rev1.pdf. 

(e) Contractors must establish and maintain 

a documented energy management program 

which includes requirements for energy and 

water efficient equipment, EnergyStar or 

WaterSense, as applicable and procedures for 

verification of purchases, following the 

criteria in DOE Order 430.2B, Departmental 

Energy, Renewable Energy, and 

Transportation Management, Attachment 1, 

or its successor. This requirement should not 

be flowed down to subcontractors. 

(f) In complying with the requirements of 

paragraph (c) of this clause, the Contractor 

shall coordinate its activities with and 

submit required reports through the 

Environmental Sustainability Coordinator or 

equivalent position. 

(g) The Contractor shall prepare and 

submit performance reports using prescribed 

DOE formats, at the end of the Federal fiscal 

year, on matters related to the acquisition of 

environmentally preferable and sustainable 

products and services. This is a material 

delivery under the contract. Failure to 

perform this requirement may be considered 

a failure that endangers performance of this 

contract and may result in termination for 

default [see FAR 52.249–6, Termination (Cost 

Reimbursement)]. 

(h) These provisions shall be flowed down 

only to first tier subcontracts exceeding the 

simplified acquisition threshold that support 

operation of the DOE facility and offer 

significant subcontracting opportunities for 

energy efficient or environmentally 

sustainable products or services. The 

Subcontractor will comply with the 

procedures in paragraphs (c) through (f) of 

this clause regarding the collection of all data 

necessary to generate the reports required 

under paragraphs (c) through (f) of this 

clause, and submit the reports directly to the 

Prime Contractor’s Environmental 

Sustainability Coordinator at the supported 

facility. The Subcontractor will advise the 

Contractor if it is unable to procure energy 

efficient and environmentally sustainable 

items and cite which of the reasons in 

paragraph (c) of this clause apply. The 

reports may be submitted at the conclusion 

of the subcontract term provided that the 

subcontract delivery term is not multi-year in 

nature. If the delivery term is multi-year, the 

Subcontractor shall report its 

accomplishments for each Federal fiscal year 

in a manner and at a time or times acceptable 

to both parties. Failure to comply with these 

reporting requirements may be considered a 

breach of contract with attendant 

consequences. 

(i) When this clause is used in a 

subcontract, the word ‘‘Contractor’’ will be 

understood to mean ‘‘Subcontractor.’’ 

(End of Clause) 

Alternate I for Construction Contracts and 

Subcontracts (OCT 2010)—When contracting 

for construction, alteration, or renovation of 

DOE facilities, substitute the following 

paragraphs (d) through (i): 

(d) In the performance of this contract, the 

Contractor shall comply with the 

requirements of Executive Order 13423, 

Strengthening Federal Environmental, Energy 

and Transportation Management, (http:// 

www.epa.gov/greeningepa/practices/ 

eo13423.htm) and Executive Order 13514, 

Federal Leadership in Environmental, 

Energy, and Economic Performance (http:// 

www.archives.gov/federal-register/executiveorders/disposition.html). The Contractor 

shall also consider the best practices within 

the DOE Acquisition Guide, Chapter 23, 

Acquisition Considerations Regarding 

Federal Leadership in Environmental, 

Energy, and Economic Performance. This 

guide includes information concerning 

recycled content products, biobased 

products, energy efficient products, water 

efficient products, alternative fuels and 

vehicles, non-ozone depleting substances and 

other environmentally preferable products 

and services. This guide is available on the 

Internet at: http://management.energy.gov/ 

documents/AcqGuide23pt0Rev1.pdf. When 

developing the Bill of Materials for approval 

of the Contracting Officer or Representative, 

the contractor shall specify energy efficient 

and environmentally sustainable materials to 

the extent possible within the constraints of 

the general design specifications. Compliance 

with the Guiding Principles for Federal 

Leadership in High Performance and 

Sustainable Buildings (Guiding Principles) 

shall be achieved through certification to the 

Leadership in Energy and Environmental 

Design (LEED) Gold level under the LEED 

rating system most suited to the building 

type. 

(e) [Reserved] 

(f) In complying with the requirements of 

paragraph (c) of this clause, the Contractor(s) 

shall coordinate its activities with and 

submit required reports through the 

Environmental Sustainability Coordinator or 

equivalent position. 

(g) The Contractor shall prepare and 

submit performance reports using prescribed 

DOE formats, at the end of the Federal fiscal 

year, on matters related to the acquisition of 

energy efficient and environmentally 

sustainable products and services. This is a 

material delivery under the contract. Failure 

to perform this requirement may be 

considered a failure that endangers 

performance of this contract and may result 

in termination for default, see 48 CFR 

52.249–6, Termination (Cost 

Reimbursement). 

(h) These provisions shall be flowed down 

only to first tier construction subcontracts 

exceeding the simplified acquisition 

threshold that support operation of the DOE 

facility and offer significant opportunities for 

designating energy efficient or 

environmentally sustainable products or 

services in the materials selection process. 

The subcontractor will comply with the 

procedures in paragraphs (c) through (f) of 

this clause regarding the collection of all data 

necessary to generate the reports required 

under paragraphs (c) through (f) of this 

clause, and submit the reports directly to the 

Prime Contractor’s Environmental 

Sustainability Coordinator at the supported 

facility. The subcontractor will advise the 

contractor if it is unable to procure energy 

efficient and environmentally sustainable 

items and cite which of the reasons in 

paragraph (c) of this clause apply. The 

reports may be submitted at the conclusion 

of the subcontract term provided that the 

subcontract delivery term is not multi-year in 

nature. If the delivery term is multi-year, the 

subcontractor shall report its 

accomplishments for each Federal fiscal year 

in a manner and at a time or times acceptable 

to both parties. Failure to comply with these 

reporting requirements may be considered a 

breach of contract with attendant 

consequences. 

(i) When this clause is used in a 

subcontract, the word ‘‘Contractor’’ will be 

understood to mean ‘‘Subcontractor.’’ 

(End of Clause) 

[FR Doc. 2010–23655 Filed 9–21–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 385 

Change to FMCSA Policy on 

Calculating and Publicizing the Driver, 

Vehicle, and Hazardous Materials Outof-Service Rates and Crash Rates 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of enforcement policy 

amendment. 


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