[Federal Register Volume 74, Number 48 (Friday, March 13, 2009)]
[Rules and Regulations]
[Pages 10830-10836]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5459]
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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.
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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D. Draft Guidance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.
[[Page 10831]]
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 energy-using 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, energy-
efficient, water-efficient, and recycled-content 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
life-cycle 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.
[[Page 10832]]
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 Star-qualified 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 self-
executing. 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 cost-effectiveness
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
[[Page 10833]]
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 Sec. 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
[[Page 10834]]
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 cost-effective 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
[[Page 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.
0
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
0
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.
0
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.
Sec. 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)
Sec. 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.
Sec. 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 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.
Sec. 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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(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