10830 Federal Register / Vol. 74, No. 48 / Friday, March 13, 2009 / Rules and Regulations 

distribution is to be truncated so that 

the deep percolation rates vary between 

10 and 100 mm/year (0.39 and 3.9 in./ 

year). 

(3) DOE must assess the effects of 

general corrosion on engineered 

barriers. DOE may use a constant 

representative corrosion rate throughout 

the period of geologic stability or a 

distribution of corrosion rates correlated 

to other repository parameters. 

Dated at Rockville, Maryland, this 9th day 

of March 2009. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. E9–5448 Filed 3–12–09; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 436 

RIN 1904–AB68 

Federal Procurement of Energy 

Efficient Products 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE) today publishes a final 

rule to promote Federal procurement of 

energy-efficient products. The final rule 

establishes guidelines for Federal 

agencies regarding the implementation 

of amendments to the National Energy 

Conservation Policy Act (NECPA) that 

require Federal agencies to procure 

ENERGY STAR qualified and Federal 

Energy Management Program (FEMP) 

designated products in procurements 

involving energy consuming products 

and systems. Today’s final rule includes 

changes in response to comments 

received on the notice of proposed 

rulemaking published June 19, 2007. 

Most notably, today’s final rule does not 

establish a reporting requirement, as 

initially proposed, for federal agencies 

under procurement requirement of 

NECPA. 

DATES: This rule is effective April 13, 

2009. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues contact Mr. 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, (202) 586– 

9138, e-mail: cyrus.nasseri@ee.doe.gov. 

For legal issues contact Mr. Chris 

Calamita, U.S. Department of Energy, 

Office of the General Counsel, Forrestal 

Building, GC–72, 1000 Independence 

Avenue, SW., Washington, DC 20585, 

(202) 586–9507, e-mail: 

Christopher.Calamita@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction and Background 

A. The Energy Policy Act of 2005 

B. ENERGY STAR Qualified and FEMP 

Designated Products 

C. Proposed Rule 

D. Draft Guidance 

II. Discussion of Comments and the Final 

Rule 

A. Definition of ‘‘Covered Product’’ 

B. Reporting Agency Exceptions to the 

Procurement Requirement 

C. Compliance With Section 553 

D. Definition of Criteria for ENERGY STAR 

Qualification or FEMP Designation 

E. Supply Source for Excepted 

Procurement 

III. DOE Guidance 

A. Procurements 

B. Procurement Planning 

C. Exceptions 

IV. Regulatory Review 

A. National Environmental Policy Act 

B. Regulatory Flexibility Act 

C. Paperwork Reduction Act 

D. Unfunded Mandates Reform Act of 1995 

E. Treasury and General Government 

Appropriations Act, 1999 

F. Treasury and General Government 

Appropriations Act, 2001 

G. Executive Order 12866 

H. Executive Order 12988 

I. Executive Order 13132 

J. Executive Order 13211 

V. Congressional Notification 

VI. Approval of the Office of the Secretary 

I. Introduction and Background 

A. The Energy Policy Act of 2005 

The Energy Policy Act of 2005 

(EPACT 2005) (Pub. L. 109–58; August 

8, 2005), amended Part 3 of title V of 

NECPA (42 U.S.C. 8251–8259) by 

adding section 553. Section 553 of 

NECPA requires each Federal agency to 

procure ENERGY STAR qualified or 

FEMP designated products, unless the 

head of the agency determines in 

writing that a statutory exception 

applies. (42 U.S.C. 8259b(b)) Section 

553 of NECPA was further amended by 

section 525 of the Energy Independence 

and Security Act of 2007 (Pub. L. 140– 

110; December 19, 2007) to clarify that 

the procurement requirement applies to 

the procurement of a product in a 

category covered by the Energy Star 

program or the FEMP program for 

designated products. (42 U.S.C. 

8259b(b)(1)) Further, each Federal 

agency is required to incorporate into 

the specifications of all procurements 

involving energy consuming products 

and systems, and into the factors for 

evaluation of offers received for such 

procurements, criteria for energy 

efficiency that are consistent with the 

criteria used for rating ENERGY STAR 

qualified products and for rating FEMP 

designated products. (42 U.S.C. 

8259b(b)(3)) 

Section 553 also requires that all 

inventories or listings of products 

operated and maintained by the General 

Services Administration (GSA) and the 

Defense Logistics Agency (DLA) clearly 

identify and prominently display 

ENERGY STAR qualified and FEMP 

designated products in any listing or 

inventory of products, and it requires 

GSA and DLA to supply only ENERGY 

STAR qualified and FEMP designated 

products in all covered product 

categories, except in cases in which the 

head of the agency ordering a product 

specifies in writing that an exception 

applies. (42 U.S.C. 8259b(c)) 

Section 553 of NECPA contains two 

exceptions to the requirement to 

procure only ENERGY STAR qualified 

and FEMP designated products, and it 

excludes a specific category of energy 

consuming products from coverage. 

A procurement may be excepted if the 

head of an agency finds in writing that 

either: (1) An ENERGY STAR qualified 

product or FEMP designated product is 

not cost-effective over the life of the 

product taking energy cost savings into 

account; or (2) no ENERGY STAR 

qualified product or FEMP designated 

product is reasonably available that 

meets the functional requirements of the 

agency. (42 U.S.C. 8259b(b)(2)) In 

addition, section 553 excludes from the 

definition of products subject to these 

requirements any energy consuming 

product or system designed or procured 

for combat or combat-related missions. 

(42 U.S.C. 8259b(a)(5)) 

The subsection entitled 

‘‘REGULATIONS,’’ section 553(f) of 

NECPA, directs the Secretary of Energy 

to issue guidelines to carry out the 

statute. (42 U.S.C. 8259b(f)) NECPA 

section 553 imposes procurement 

requirements on agencies and additional 

requirements on GSA and DLA. DOE 

does not need to issue regulations to 

implement those statutory requirements. 

Moreover, DOE does not have the 

authority to change by regulation the 

statutory procurement requirements that 

are applicable to agencies or the 

additional requirements that govern 

GSA and DLA. 

Consistent with the direction 

provided in section 553(f), today’s final 

rule amends 10 CFR part 436, Federal 

Energy Management and Planning 

Programs, to establish guidelines for 

Federal agencies on compliance with 

section 553. 


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B. ENERGY STAR Qualified and FEMP 

Designated Products 

In 1992, the United States 

Environmental Protection Agency (EPA) 

introduced ENERGY STAR as a 

voluntary labeling program designed to 

identify and promote energy efficient 

products, in part, to reduce greenhouse 

gas emissions. 

In response to Executive Order 12902, 

‘‘Energy Efficiency and Water 

Conservation at Federal Facilities,’’ (59 

FR 11463; March 8, 1994) twenty-two 

federal agencies signed an agreement in 

1994 to shift their purchasing of energyusing products to the best 25% of 

models on the market. Products that 

were labeled with the ENERGY STAR 

logo met this requirement. The 

Department of Energy’s Federal Energy 

Management Program (FEMP) provided 

additional guidance to Federal agencies 

to identify efficient products not 

covered by the ENERGY STAR program, 

i.e., FEMP designated products. 

In 1999, the partnership between EPA 

and DOE was furthered by Executive 

Order 13123, ‘‘Greening the Government 

Through Efficient Energy Management,’’ 

which directed EPA and DOE to 

expedite the process of designating 

products as ENERGY STAR qualified 

and to merge their efficiency rating 

procedures. 64 FR 30851; June 8, 1999. 

Executive Order 13123 was replaced 

with Executive Order 13423, 

‘‘Strengthening Federal Environmental, 

Energy, and Transportation 

Management,’’ which requires, among 

other things, that in acquisitions of 

goods and services Federal agencies use 

sustainable environmental practices, 

including acquisition of bio-based, 

environmentally preferable, energyefficient, water-efficient, and recycledcontent products. 72 FR 3919; January 

26, 2007. 

In EPACT 2005, Congress established 

statutory parameters for the ENERGY 

STAR program. (42 U.S.C. 6294a) The 

statute prescribes the program duties of 

the Administrator of EPA and the 

Secretary of Energy; requires the 

solicitation of public comment before an 

ENERGY STAR product category, 

specification or criterion is established 

or revised; and establishes a lead time 

before a new or significant revision of a 

product category, specification, or 

criterion may become effective. 

EPACT 2005 also reaffirmed the 

authority of the Federal Energy 

Management Program to identify a 

product as being ‘‘among the highest 25 

percent of equivalent products for 

energy efficiency.’’ (42 U.S.C. 

8259b(a)(4)) 

Currently, ENERGY STAR qualified 

and FEMP designated products cover 62 

types of products in the following 

categories: (1) Lighting; (2) commercial 

and industrial equipment; (3) food 

service equipment; (4) office equipment; 

(5) home electronics; (6) appliances; (7) 

residential equipment; (8) plumbing; 

and (9) construction products. ENERGY 

STAR qualified and FEMP designated 

products have been determined to be 

life-cycle cost-effective in normal usage. 

However, purchasers are encouraged to 

evaluate products according to their 

specific applications and circumstances. 

Life-cycle cost calculators for many of 

the ENERGY STAR qualified and FEMP 

designated products can be accessed 

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

procurement/eep_eccalculators.html. 

C. Proposed Rule 

As discussed above, NECPA section 

553(f), entitled ‘‘REGULATIONS,’’ 

directs DOE to issue guidelines to carry 

out the section. (42 U.S.C. 8259b(e)) On 

June 19, 2007, DOE published a notice 

of proposed rulemaking that proposed a 

reporting requirement to track agency 

compliance with the procurement 

requirements established in section 553 

of NECPA. 72 FR 33696; June 19, 2007. 

DOE also published draft guidance to 

assist Federal agencies in complying 

with the procurement requirements 

established in section 553. 

NECPA section 553 applies to the 

procurement of energy consuming 

products. Section 553 defines ‘‘product’’ 

as excluding energy consuming 

products or systems designed or 

procured for combat or combat-related 

missions. (42 U.S.C. 8259b(a)(5)) For the 

purpose of the reporting requirement, 

the proposed rule relied on the term 

‘‘covered product,’’ i.e., a product or 

system that is in a category covered by 

the ENERGY STAR or FEMP program. 

Covered products are those energy 

consuming products that the ENERGY 

STAR or FEMP programs determined to 

hold the greatest promise for energy 

savings. Within these product 

categories, there is typically a broad 

range of life-cycle costs associated with 

the products. ENERGY STAR and FEMP 

identify those products with lower lifecycle costs for federal buyers. Both 

programs will continue to review 

market trends and product availability, 

and may determine that additional 

products should be added to the list of 

covered products. 

Section 553(a)(1) specifies a definition 

of agency that includes an agency under 

any branch of the Government 

(including a congressional agency). (42 

U.S.C. 8259b(a)(1)) The proposed rule 

defined ‘‘agency’’ consistent with the 

definition contained in Title 5 of the 

United States Code, which essentially 

limits the term ‘‘agency’’ to those under 

the Executive Branch. (5 U.S.C. 551(1)) 

DOE initially determined that the 

inclusion of non-Executive Branch 

agencies under the definition in section 

553(a)(1) of NECPA was inappropriate 

for a regulation promulgated by DOE 

given DOE’s authority. 72 FR 33697. 

Moreover, the definition of ‘‘agency’’ in 

5 U.S.C. 551(1) is incorporated by 

reference into subchapter III, Federal 

Energy Initiative, of Chapter 91 of Title 

42 of the United States Code, which 

includes section 553. DOE noted that 

the other branches of the Government 

may, at their discretion, rely on DOE’s 

regulation and guidance in 

implementing section 553. 

As stated above, section 553 of 

NECPA contains two exceptions to the 

requirement to procure only ENERGY 

STAR qualified and FEMP designated 

products. In order to track exceptions, 

DOE proposed reporting requirements to 

track the exception findings made by 

agency heads. DOE initially determined 

that information regarding the 

procurement of products for which an 

exception was necessary would help 

DOE and EPA determine if there is a 

need for revisions to ENERGY STAR 

qualified or FEMP designated products. 

DOE has determined that existing 

reporting and tracking mechanisms 

provide an adequate means to collect 

and analyze information regarding 

agency procurement of these products. 

D. Draft Guidance 

In the preamble to the proposed rule, 

DOE provided draft guidance on 

compliance with the procurement 

requirements set forth in section 553 of 

NECPA. As discussed previously in this 

document, section 553(b) requires that 

when agencies procure energy 

consuming products, either directly or 

through part of a larger contract (e.g., 

construction, renovation, and service or 

maintenance contracts) that they 

procure either an ENERGY STAR 

qualified product or a FEMP designated 

product. (42 U.S.C. 8259b(b)(1)) Section 

553(c) requires GSA and DLA to clearly 

identify and prominently display 

ENERGY STAR qualified and FEMP 

designated products in any inventory or 

listing of products by these agencies and 

that they supply only ENERGY STAR 

qualified and FEMP designated 

products when appropriate. (42 U.S.C. 

8259b(c)) 

DOE encourages agencies other than 

GSA and DLA that operate procurement 

ordering systems to achieve the goals of 

section 553. 


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Comments were received on the draft 

guidance provided in the notice of 

proposed rulemaking. The discussion 

below responds to those comments and 

provides guidance for Federal agencies 

in complying with section 553. 

II. Discussion of Comments and the 

Final Rule 

Today’s final rule contains a number 

of changes from the proposed rule. Most 

significantly, the final rule does not 

include a reporting requirement. The 

changes are discussed below. 

DOE received thirteen comments in 

response to the notice of proposed 

rulemaking. The comments covered the 

following topics: Definition of products 

covered under the rule—specifically, 

whether a product must itself be 

‘‘energy consuming’’ to be considered a 

‘‘covered product’’; reporting of 

exceptions granted by each agency; 

responsibilities of agencies to define 

procedures to comply with NECPA 

section 553 requirements; and criteria 

determining whether a product meets 

the requirement of ‘‘Energy Starqualified or FEMP-designated.’’ DOE 

received several comments in support of 

the proposed rule. 

A. Definition of ‘‘Covered Product’’ 

Several commenters raised issues 

concerning the definition of covered 

product. (See comments from Single Ply 

Roofing Industry, Duro-Last Roofing, 

Information Technology Industry 

Council, Chemical Fabrics & Film 

Association, Inc., Sika Sarnafil, Inc.) 

Commenters suggested that the 

definition of ‘‘covered product’’ be 

expanded to include all products for 

which an ENERGY STAR qualification 

or a FEMP designation is established. 

Discussion of the term ‘‘product’’ in 

the preamble of the notice of proposed 

rulemaking was in the context of 

‘‘energy consuming’’ products. 72 FR 

33697; June 19, 2007. However, in the 

proposed regulatory text, ‘‘covered 

product’’ was defined more broadly as 

‘‘a product that is of a category for 

which an ENERGY STAR qualification 

or FEMP designation is established.’’ 

The ENERGY STAR categories cover 

products that do not consume energy, 

such as windows and roofing materials. 

DOE is maintaining the definition of 

‘‘covered product’’ as in the proposed 

regulatory text. The definition of 

‘‘covered product’’ for the purpose of 

the regulation includes any product that 

is of a category for which an ENERGY 

STAR qualification or FEMP 

designation is established. However, the 

statutory procurement requirements 

apply only to the procurement of 

products as set forth in section 553 of 

NECPA. (42 U.S.C. 8259b) As noted 

above, section 553 of NECPA, as 

recently amended, specifies that the 

requirement applies to the procurement 

of an energy consuming product in a 

product category covered by the Energy 

Star Program or the FEMP program for 

designating products. (42 U.S.C. 

8259b(b)(1)) The definition of ‘‘covered 

product’’ established in today’s final 

rule clarifies that the requirements 

under section 553 of NECPA apply only 

with regard to energy consuming 

products that are of a product category 

covered by the Energy Star Program or 

the FEMP program for designating 

products. 

The Information Technology Industry 

Council stated that it was unclear what 

the term ‘‘category’’ meant in the 

definition of covered product. The 

ENERGY STAR and FEMP programs 

apply to specified types of products, i.e., 

categories. A listing of the product 

categories covered by the ENERGY 

STAR program can be found at http:// 

www.energystar.gov/ 

index.cfm?fuseaction=find_a_product. 

Currently, there is no companion list 

of FEMP designated products, but the 

FEMP specifications for energy 

efficiency products are located at 

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

procurement/eep_requirements.html. 

B. Reporting Agency Exceptions to the 

Procurement Requirement 

Several comments were received 

regarding the perceived burdens of 

requiring agencies to report information 

regarding the finding of an exception 

under section 553(b)(2) of NECPA. (See 

comments from Office of Federal 

Environmental Executive; Department 

of Justice; Department of Commerce). 

These commenters indicated that the 

reporting requirement included in the 

notice of proposed rulemaking would be 

unduly burdensome on agencies. 

DOE recognizes that there are several 

existing reporting requirements through 

which DOE can obtain information on 

exceptions found under section 533 of 

NECPA, without the need to establish a 

separate reporting requirement through 

regulation. Specifically, Federal 

agencies are currently required to 

provide information for DOE’s annual 

report on energy use and the Office of 

Federal Procurement Policy’s annual 

report on green purchasing 

requirements. DOE will coordinate with 

the Office of Management and Budget to 

incorporate information regarding the 

finding of exemptions under section 533 

of NECPA as part of the data collected 

for the these annual reports. By relying 

on existing reporting schemes, DOE 

avoids any potential redundancy in 

reporting requirements for Federal 

agencies. Therefore, DOE is not 

establishing a reporting requirement in 

today’s final rule. 

C. Compliance With Section 553 

Several comments were received 

regarding agency compliance with the 

procurement requirements in section 

553 of NECPA. Specifically, some of 

these comments requested that DOE 

establish regulations: 

—Establishing requirements for GSA 

and DLA to identify energy-efficient 

products (comment from Alliance to 

Save Energy); 

—Specifying how agencies are to 

determine the cost-effectiveness of 

products for the purpose of an 

exception finding (comments from 

Office of Federal Environmental 

Executive; Information Technologies 

Industry Council; and Department of 

Veterans Affairs); and 

—Providing additional exceptions that 

may be available to Federal agencies 

(comments from Office of Federal 

Environmental Executive and 

Department of Veterans Affairs). 

As stated above, DOE has determined 

that the procurement requirements and 

the product listing requirements of 

section 553 of NECPA are selfexecuting. However, today’s final rule 

codifies the guidance provided in the 

preamble of the notice of proposed 

rulemaking and this document. Placing 

the guidance in the Code of Federal 

Regulations, agencies should be able to 

more readily access the guidance. 

With regard to a finding under the 

exception provision in section 553(b)(2), 

each agency should develop a process 

for evaluating its individual product 

needs. In the guidance section below, 

DOE does provide guidance on how an 

agency may evaluate the costeffectiveness of a product. 

The exception provision in section 

553 provides specific criteria for 

determining when such an exception 

finding can be made. Section 553 does 

not include provisions granting 

exceptions beyond those enumerated in 

that section. While section 553 specifies 

that a finding of an exception is to be 

made by the head of an agency, agencies 

may consider, as appropriate, the 

delegation of the exception authority to 

other officials within the agency. 

D. Definition of Criteria for ENERGY 

STAR Qualification or FEMP 

Designation 

One comment (comment from 

Arkansas Lamp Manufacturing) dealt 

with the mechanism by which the 

ENERGY STAR program determines the 


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criteria by which ENERGY STAR 

qualified products are identified. This 

process is beyond the scope of this 

regulation. Moreover, as noted above, 

EPACT 2005 established statutory 

parameters for the ENERGY STAR 

program. (42 U.S.C. 6294a) 

Another comment (comment from 

Information Technology Industry 

Council) dealt with the distinction 

between a product meeting the 

functional requirements contained in 

the technical specifications for ENERGY 

STAR products and a product that is 

ENERGY STAR qualified. The language 

of section 553 of NECPA requires 

federal agencies to procure an ENERGY 

STAR qualified product; i.e., a product 

manufactured by a full participant in 

the ENERGY STAR program. (42 U.S.C. 

8259b(1)(A)) A product must be 

ENERGY STAR qualified to meet the 

procurement requirements; functional 

performance alone is not sufficient. 

E. Supply Source for Excepted 

Procurement 

One comment (comment from 

Alliance to Save Energy) requested that 

DOE require the federal supply sources 

(GSA and DLA) to verify that customers 

had prepared a written exception before 

supplying a covered product that is not 

ENERGY STAR qualified or FEMP 

designated. As discussed above, DOE 

does not have the authority to change by 

regulation the statutory requirements 

that govern GSA and DLA. 

III. DOE Guidance 

Section 533(e) of NECPA, titled 

‘‘Regulations’’, directs DOE to issue 

guidelines to carry out the procurement 

requirements of that section. As 

indicated previously in this document, 

DOE is codifying, to the extent practical, 

the guidance provided in the preamble 

of the notice of proposed rulemaking 

and this document. As noted, the 

guidance provided in the Code of 

Federal Regulations, should be more 

readily accessible to agencies, as 

opposed to guidance provided only in 

the Federal Register. 

A. Procurements 

Requirements for Federal 

procurement are governed, in part, by 

the Federal Acquisition Regulation 

(FAR). (48 CFR part 1 et seq.). On 

November 23, 2007, the FAR 

requirements were revised to reflect the 

requirements in section 553 of NECPA. 

72 FR 65868; Nov. 23, 2007. DOE has 

worked closely with members of the 

FAR Council to ensure a consistency 

between today’s final rule and the 

recent FAR revision. 

Federal agencies are generally 

required to procure an ENERGY STAR 

qualified or FEMP designated product 

whenever procuring a covered product. 

Additionally, products furnished by 

contractors while performing at a 

federally controlled facility should be 

qualified products regardless of whether 

the government receives title at the end 

of contract performance. 

A list of product categories, which 

contain ENERGY STAR qualified and 

FEMP designed products, is located at 

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

eep_productfactsheet.pdf. 

To identify actual products that are 

ENERGY STAR rated, potential 

purchasers can go to http:// 

www.energystar.gov/products. 

Currently, there is no companion list 

of FEMP designated products, but the 

FEMP specifications for energy 

efficiency products are located at 

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

procurement/eep_requirements.html. 

B. Procurement Planning 

In addition to establishing 

requirements for the actual procurement 

of certain products, section 553(b)(3) 

directs heads of agencies to incorporate 

into the specifications for all 

procurements involving covered 

products criteria for energy efficiency 

that are consistent with the criteria used 

to rate ENERGY STAR products and 

FEMP designated products. (42 U.S.C. 

8259b(b)(3)) This requirement applies to 

general specifications, project 

specifications, and construction, 

renovation and service contracts that 

involve the procurement of covered 

products. Agencies should consider this 

requirement to apply to: 

• Design, design/build, renovation, 

retrofit and services contracts; facility 

maintenance and operations contracts; 

as well as energy savings performance 

contracts and utility energy service 

contracts. 

• If applicable, lease agreements for 

buildings or equipment, including 

build-to-lease contracts, such as those 

used to implement the Military Housing 

Privatization Initiative. 

Further, agencies should require the 

procurement of ENERGY STAR and 

FEMP designated products in new 

service contracts and other existing 

service contracts as they are recompeted 

and should, to the extent possible, 

incorporate such requirements and 

preferences into existing contracts as 

they are modified or extended through 

options. 

As directed by section 553(b)(3), 

Federal agencies should include criteria 

for energy efficiency that are consistent 

with the criteria used for rating 

qualified products in the factors for the 

evaluation of: 

• Offers received for procurements 

involving covered products, and 

• Offers received for construction, 

renovation, and services contracts that 

include provisions for covered products. 

Agencies should notify their vendors 

of the Federal requirements for energy 

efficient purchasing. 

Guidance is available for developing 

model contract language for contracts 

which involve covered products. Model 

contract language for all ENERGY STAR 

qualified and FEMP designated 

products can be found at http:// 

www.eere.energy.gov/femp/ 

procurement/eep_modellang.html. 

Moreover, there are guide specification 

requirements which have already been 

incorporated in existing specifications 

such as the Unified Facilities Guide 

Specifications, which are available at 

http://www.wbdg.org/ccb/ 

browse_org.php?o=70, and EPA’s 

Federal Guide for Green Construction 

Specifications, which is available at 

http://www.wbdg.org/design/ 

greenspec.php. 

Further, FEMP offers a series of 

training opportunities for procurement 

staff that are listed at http:// 

www.eere.energy.gov/femp/services/ 

training_catalog.html. New classes are 

periodically added to the Web site. 

Procurement officials are encouraged to 

take advantage of these training 

opportunities, which can provide a 

useful context to understand the 

benefits of energy efficient technologies 

and the innovative financing strategies 

available to fund them. 

Although energy consuming products 

or systems that are designed or procured 

for combat or combat-related missions 

are not subject to the requirements of 

this subpart (see § 436.40 of this 

subpart), DOE encourages the 

Department of Defense to incorporate 

energy efficiency criteria into 

procurements of combat-related 

equipment, to the extent practicable. 

C. Exceptions 

As stated above, section 553 provides 

for exceptions to the procurement 

requirements. Under the statute, an 

agency may only procure an energy 

consuming product that is not an 

ENERGY STAR qualified or FEMP 

designated product if the head of the 

agency finds in writing that an 

exception applies. (42 U.S.C. 

8259b(b)(2)) Under section 553(b)(2) a 

written exception can only be made if 

one of two criteria are met. (42 U.S.C. 

8259b(b)(2)) The first criterion requires 

an agency head to find that a product is 

not life-cycle cost-effective in the 


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application for which it will be used. 

(42 U.S.C. 8259b(b)(2)(A)) Although 

ENERGY STAR qualified and FEMP 

designated products are life-cycle costeffective under normal use conditions, 

they may not be if used in a specialized 

way or for very limited hours. When 

making a determination that a product 

is not life-cycle cost-effective, an agency 

should rely on the life-cycle cost 

analysis method in part 436, subpart A, 

of title 10 of the Code of Federal 

Regulations, or another method 

determined by the agency to be 

equivalent. 

The second criterion requires an 

agency head to find that there is no 

ENERGY STAR qualified or FEMP 

designated product reasonably available 

that meets the functional requirements 

of the agency. (42 U.S.C. 8259b(b)(2)(B)) 

IV. Regulatory Review 

A. Executive Order 12866 

Today’s final rule has been 

determined not to be a ‘‘significant 

regulatory action’’ under section 3(f)(1) 

of Executive Order 12866, Regulatory 

Planning and Review. (58 FR 51735; 

October 4, 1993). 

B. National Environmental Policy Act 

DOE has determined that this rule is 

covered under the Categorical Exclusion 

found in DOE’s National Environmental 

Policy Act regulations at paragraph A.6 

of Appendix A to subpart D, 10 CFR 

part 1021. That Categorical Exclusion 

applies to rulemakings that are strictly 

procedural, such as rulemaking 

establishing a reporting requirement 

applicable to contracting practices for 

the purchase of goods and services. The 

rule establishes guidance for Federal 

agencies with regard to the requirements 

of section 553 to procure energy 

efficient products and develop 

procurement practices which facilitate 

the purchase of energy efficient 

products. 

The rule would not establish any 

procurement requirements. 

Accordingly, DOE has not prepared an 

environmental assessment or an 

environmental impact statement. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires the 

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; Feb. 

19, 2003. The Department 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 rule under 

the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. Today’s final rule applies only to 

Federal agencies. Today’s final rule will 

not impact small entities. In addition, 

the final rule only facilitates Federal 

agency compliance with a statutory 

mandate to procure ENERGY STAR 

qualified and FEMP designated 

products. On the basis of the foregoing, 

DOE certifies that this rule would not 

have a significant economic impact on 

a substantial number of small entities. 

Accordingly, DOE has not prepared a 

regulatory flexibility analysis for this 

rulemaking. This 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 

No new record keeping requirements, 

subject to the Paperwork Reduction Act, 

44 U.S.C. 3501, et seq., are imposed by 

this final rule. 

E. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4) generally 

requires Federal agencies to examine 

closely the impacts of regulatory actions 

on State, local, and tribal governments, 

or the private sector. Subsection 101(5) 

of title I of that law defines a Federal 

intergovernmental mandate to include 

any regulation that would impose upon 

State, local, or tribal governments an 

enforceable duty, except a condition of 

Federal assistance or a duty arising from 

participating in a voluntary Federal 

program. Title II of that law requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and tribal governments, in the 

aggregate, or to the private sector, other 

than to the extent such actions merely 

incorporate requirements specifically 

set forth in a statute. Section 202 of that 

title requires a Federal agency to 

perform a detailed assessment of the 

anticipated costs and benefits of any 

rule that includes a Federal mandate 

which may result in costs to State, local, 

or tribal governments, or to the private 

sector, of $100 million or more. 

Section 204 of that title requires each 

agency that proposes a rule containing 

a significant Federal intergovernmental 

mandate to develop an effective process 

for obtaining meaningful and timely 

input from elected officers of State, 

local, and tribal governments. 

This rule does not impose a Federal 

mandate on State, local, or tribal 

governments or the private sector. 

Accordingly, no assessment or analysis 

is required under the Unfunded 

Mandates Reform Act of 1995. 

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 rule 

that may affect family well-being. 

This final rule will 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. 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). 

DOE’s guidelines were published at 67 

FR 62446 (October 7, 2002). 

DOE has reviewed today’s final rule 

under the OMB and DOE guidelines and 

has concluded that it is consistent with 

applicable policies in those guidelines. 

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. 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 


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Federal Register / Vol. 74, No. 48 / Friday, March 13, 2009 / Rules and Regulations 10835 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. 

DOE has completed the required 

review and determined that, to the 

extent permitted by law, this rule meets 

the relevant standards of Executive 

Order 12988. 

I. 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. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications. On March 

14, 2000, DOE published a statement of 

policy describing the intergovernmental 

consultation process it will follow in the 

development of such regulations. 65 FR 

13735; Mar. 14, 2000. 

DOE has examined this rule and 

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. 

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 the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, a Statement of Energy Effects for 

any proposed significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgated 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; 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. 

This final rule will not have a 

significant adverse effect on the supply, 

distribution, or use of energy and, 

therefore, is not a significant energy 

action. Accordingly, DOE has not 

prepared a Statement of Energy Effects. 

V. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the 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). 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s final rule. 

List of Subjects in 10 CFR Parts 436 

Energy conservation, Federal 

buildings and facilities, Reporting and 

recordkeeping requirements, Solar 

energy. 

Issued in Washington, DC, on March 5, 

2009. 

Rita L. Wells, 

Acting Deputy Assistant Secretary for 

Business Administration, Energy Efficiency 

and Renewable Energy. 

■ For the reasons set forth in the 

preamble, DOE is amending Chapter II 

of Title 10 of the Code of Federal 

Regulations as set forth below. 

PART 436—FEDERAL ENERGY 

MANAGEMENT AND PLANNING 

PROGRAMS 

■ 1. The authority citation for part 436 

is revised to read as follows: 

Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 

8258; 42 U.S.C. 8259b. 

■ 2. Subpart C is added to part 436 to 

read as follows: 

Subpart C—Agency Procurement of 

Energy Efficient Products 

Sec. 

436.40 Purpose and scope. 

436.41 Definitions. 

436.42 Evaluation of Life-Cycle Cost 

Effectiveness 

436.43 Procurement Planning. 

§ 436.40 Purpose and scope. 

This subpart provides guidance to 

promote the procurement of energy 

efficient products by Federal agencies 

and promote procurement practices 

which facilitate the procurement of 

energy efficient products, consistent 

with the requirements in section 553 of 

the National Energy Conservation Policy 

Act. (42 U.S.C. 8259b) 

§ 436.41 Definitions. 

Agency means each authority of the 

Government of the United States, 

whether or not it is within or subject to 

review by another agency, but does not 

include— 

(1) The Congress, and agencies 

thereof; 

(2) The courts of the United States; 

(3) The governments of the territories 

or possessions of the United States; or 

(4) The government of the District of 

Columbia. 

Covered product means a product that 

is of a category for which an ENERGY 

STAR qualification or FEMP 

designation is established. 

ENERGY STAR qualified product 

means a product that is rated for energy 

efficiency under an ENERGY STAR 

program established by section 324A of 

the Energy Policy and Conservation Act 

(42 U.S.C. 6294a). 

FEMP designated product means a 

product that is designated under the 

Federal Energy Management Program as 

being among the highest 25 percent of 

equivalent products for energy 

efficiency. 

§ 436.42 Evaluation of Life-Cycle Cost 

Effectiveness. 

For the purpose of compliance with 

section 553 of the National Energy 

Conservation Policy Act: 

(a) ENERGY STAR qualified and 

FEMP designated products may be 

assumed to be life-cycle cost-effective. 

(b) In making a determination that a 

covered product is not life-cycle costeffective, an agency should rely on the 

life-cycle cost analysis method in part 

436, subpart A, of title 10 of the Code 

of Federal Regulations. 

§ 436.43 Procurement planning. 

(a) Agencies should consider the 

procurement planning requirements of 

section 553 of the National Energy 

Conservation Policy Act as applying to: 


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10836 Federal Register / Vol. 74, No. 48 / Friday, March 13, 2009 / Rules and Regulations 

1 17 CFR 232.10. 

2 17 CFR 232.101. 

3 17 CFR 232.10 et seq. 

4 17 CFR 239.63, 249.446, 269.7 and 274.402. 

5We approved this process in Release No. 33– 

8410 (Apr. 21, 2004) [69 FR 22704 (Apr. 26, 2004)], 

available at http://www.sec.gov/rules/final/33- 

8410.htm. 

6We adopted the rules requiring online filing of 

Form D information in Release No. 33–8891 (Feb. 

6, 2008) [73 FR 10592 (Feb. 27, 2008)], available at 

http://www.sec.gov/rules/final/2008/33-8891.pdf. 

7See id. at 70 [73 FR 10610]. We expect an 

increase because Form D filings previously were 

made only in paper format, and no Form ID filings 

were required because filers do not need EDGAR 

access codes to make paper filings. 

8 Id. at 58 [73 FR 10607]. 

9 Id. at 59–60 [73 FR 10607–10608]. 

10Regulation S–T is the general regulation 

governing electronic filing of information with the 

Commission. In addition to complying with 

Regulation S–T, filers must submit electronic filings 

in accordance with the instructions in the 

Commission’s EDGAR Filer Manual. We also are 

amending the EDGAR Filer Manual to reflect a 

Form ID filer’s ability to attach a PDF copy of its 

authenticating document to its online Form ID 

application. 

(1) Design, design/build, renovation, 

retrofit and services contracts; facility 

maintenance and operations contracts; 

(2) Energy savings performance 

contracts and utility energy service 

contracts; 

(3) If applicable, lease agreements for 

buildings or equipment, including 

build-to-lease contracts; 

(b) Agencies should require the 

procurement of ENERGY STAR and 

FEMP designated products in new 

service contracts and other existing 

service contracts as they are recompeted 

and should, to the extent possible, 

incorporate such requirements and 

preferences into existing contracts as 

they are modified or extended through 

options. 

(c) Agencies should include criteria 

for energy efficiency that are consistent 

with the criteria used for rating 

qualified products in the factors for the 

evaluation of: 

(1) Offers received for procurements 

involving covered products, and 

(2) Offers received for construction, 

renovation, and services contracts that 

include provisions for covered products. 

(d) Agencies should notify their 

vendors of the Federal requirements for 

energy efficient purchasing. 

[FR Doc. E9–5459 Filed 3–12–09; 8:45 am] 

BILLING CODE 6450–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 232, 239, 249, 269 and 

274 

[Release Nos. 33–9013, 34–59536, 39–2463, 

IC–28642] 

Attaching Authenticating Documents 

to Online Form ID Applications 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Final rule. 

SUMMARY: We are adopting rule and 

form amendments that allow applicants 

for EDGAR access codes using Form ID 

to submit their authenticating 

documents by attaching them to their 

online Form ID applications in Portable 

Document Format (PDF) as an 

alternative to submitting the documents 

by fax. 

DATES: Effective Date: March 16, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Corey Jennings, Special Counsel, at 

(202) 551–3258, for information on legal 

issues, or Cecile Peters, Chief, 

Information Technology Office, (202) 

551–3600, for information on technical 

issues, Division of Corporation Finance, 

U.S. Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20459–3628. 

SUPPLEMENTARY INFORMATION: We are 

adopting amendments that will revise 

Rules 10 1 and 101 2 under Regulation 

S–T3 and Form ID.4

I. Background 

Form ID is used to apply for access 

codes to file information electronically 

through the Commission’s Electronic 

Data Gathering, Analysis and Retrieval 

or ‘‘EDGAR’’ system. EDGAR access 

codes include a CIK (Central Index Key) 

number, which serves as a permanent, 

public filer identification number, as 

well as confidential security codes. 

Applicants submitting Form ID 

applications must submit them online. 

They also must fax to the Commission 

a notarized document containing the 

same information as contained in the 

Form ID application. The additional 

document is called an ‘‘authenticating 

document.’’ Commission staff matches 

applicants’ online submissions with 

their faxed authenticating documents 

before approving the Form ID 

application and allowing applicants to 

generate their EDGAR access codes.5

Today, we adopt amendments that 

allow Form ID applicants to submit 

their authenticating documents as PDF 

attachments to their online Form ID 

applications. This provides an 

alternative method to submitting the 

authenticating documents by fax. The 

use of a PDF attachment may provide a 

simpler and easier method for some 

applicants to submit their 

authenticating documents. Filers can 

use a fillable PDF version of Form ID 

available on the Commission’s Web site 

to create and print the document. For 

Form ID applications with the 

authenticating documents attached, 

Commission staff will no longer have to 

match faxed authenticating documents 

manually with online submissions. This 

alternative method should enhance the 

processing efficiency of these Form ID 

applications. The amendments do not 

impose any new burdens or 

requirements on Form ID applicants or 

others. 

The effective date of the new rules, 

March 16, 2009, coincides with the 

effective date of our new rules requiring 

that Form D filings be made online, 

through the Internet, using the EDGAR 

system.6 At the time we adopted the 

new Form D rules, we estimated they 

would result in an increase of 

approximately 20,000, or 40%, in the 

number of Form ID applications that we 

receive annually.7 Although many Form 

ID applicants will be applying for 

EDGAR access codes to make filings 

other than Form D filings, the increased 

efficiency in use of Commission staff 

resources will benefit all applicants. We 

expect adoption of the Form ID 

amendments should assist the staff in 

better managing the expected increase 

in Form ID applications resulting from 

the Form D amendments. 

At the time we adopted the Form D 

amendments, we acknowledged concern 

over the burdens of the Form ID 

authentication process, particularly in 

the context of mandating Form D online 

filing.8 We stated that we planned to 

consider ways to simplify the Form ID 

authentication process before Form D 

online filing became mandatory on 

March 16, 2009.9 The Form ID 

amendments we adopt today address 

concerns over the burdens of the Form 

ID authentication process. They make 

the process simpler and easier for some 

applicants. We are hopeful that the 

increased Commission staff efficiency in 

processing Form ID applications with 

attached authenticating documents will 

allow Form ID applicants to get their 

EDGAR access codes more quickly. 

However, we continue to study ways to 

further streamline the process. 

II. Discussion of the Amendments 

A. Optional Attachment of 

Authenticating Document to Online 

Form ID Application 

We are adopting minor revisions to 

Regulation S–T10 to allow applicants 

for EDGAR access codes using Form ID 

to attach their required authenticating 

document electronically as a PDF 

document to their online Form ID 


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