SUPPLEMENTARY INFORMATION:

A. Background

The Government’s policy is to acquire supplies and services that promote energy and water efficiency, advance the use of renewable energy products, and help foster markets for emerging technologies. This policy extends to all acquisitions, including those below the simplified acquisition threshold, and those for the design, construction, renovation, or maintenance of a facility.

The purpose of this rule is to ensure compliance with the Federal mandate to promote energy efficiency when specifying or acquiring energy-consuming products. This mandate stems from Section 104 of the Energy Policy Act of 2005. Section 104 requires that all acquisitions of energy consuming-products and all contracts for energy-consuming products require acquisition of ENERGY STAR® or Federal Energy Management Program (FEMP) designated products.

As the world’s largest volume-buyer of energy consuming products, the Federal Government can reduce energy consumption and achieve enormous cost savings by purchasing energy-efficient products. ENERGY STAR® and FEMP are two Federal programs concerned with energy efficient products for Federal purchase. The ENERGY STAR® and FEMP websites ( http://www.energystar.gov/​products and http://www.eere.energy.gov/​femp/​procurement/​eep_​requirements.cfm, respectively) assist Federal purchasers and contractors to identify these types of highly efficient products.

The ENERGY STAR® program is jointly sponsored by the Environmental Protection Agency and the Department of Energy. Begun in 1992, Energy Star’s original focus was office equipment, but has been expanded to include many other consumer products as well as business products. Over the past decade, ENERGY STAR® has been a driving force behind the more widespread use of such technological innovations as LED traffic lights, compact fluorescent lighting, power management systems for office equipment and consumer electronics, and low standby energy use. The ENERGY STAR® program allows manufacturers of products with superior energy efficiency that meet or exceed specified criteria to use the ENERGY STAR® logo on their products to assist consumers in selecting the energy efficient products. It has been so successful that, in 2005, it saved U.S. consumers, businesses, and Government agencies enough energy to avoid greenhouse gas emissions equivalent to those from 23 million cars while saving $12 billion on utility bills.

FEMP was designed to reduce energy consumption in Federal buildings. The program began in 1993 to assist Federal purchasers in specifying and acquiring energy efficient products in direct acquisitions, as part of capital projects, and as products supplied through service contracts. FEMP publishes Energy Efficient Purchasing specifications that identify the energy efficiency requirements. Energy efficiency in the FEMP program is targeted to those products in the top 25% of energy efficiency in their class as well as products with low standby power. FEMP has many other user aids for acquiring efficient energy consuming products at their website.

When acquiring energy-using products, FAR 23.203 currently requires the purchase of ENERGY STAR® or other energy-efficient items listed on the FEMP Product Energy Efficiency Recommendations list. Furthermore, FAR 23.203(a)(2) requires that when contracting for services that will include the provision of energy-using products, including contracts for design, construction, renovation, or maintenance of a public building, the specifications shall incorporate ENERGY STAR® and FEMP energy-efficient products. While these requirements are stated at FAR 23.2, they are often overlooked in services and construction contracts because there is no clause to implement the requirements. Therefore, this proposed rule provides for a clause to be inserted in solicitations and contracts to ensure that suppliers and service and construction contractors recognize when ( printed page 70938) energy-consuming products must be ENERGY STAR® or FEMP-designated.

The proposed rule—

(1) Defines “FEMP-designated product,” as used in FAR Subpart 23.2, as a product that is designated under the Federal Energy Management Program of the Department of Energy as being among the highest 25 percent of equivalent products for energy efficiency (42 U.S.C. 8259b);

(2) Provides that the term “product,” as used in the subpart, does not include any energy consuming product or system designed or procured for combat or combat-related missions (42 U.S.C. 8259b);

(3) Consistent with the Energy Policy Act of 2005, provides for use of the terms “energy-consuming” and “FEMP-designated product” vice “energy-using” and “FEMP Product Energy Efficiency Recommendations product list”, respectively;

(4) Transfers the responsibility for imposing the requirement for ENERGY STAR® or FEMP-designated products from contract specifications to a contract clause;

(5) Provides two exemptions for acquiring ENERGY STAR® or FEMP-designated products; and

(6) Prescribes a contract clause to be used in all solicitations and contracts when energy-consuming products will be—

(a) Delivered by the contractor;

(b) Furnished by the contractor in the performance of services at a Federally-controlled facility; or

(c) Specified in the design, construction, renovation, or maintenance of a facility.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it only emphasizes existing requirements. Whereas the Councils recognize that the rule may affect small entities performing contracts for those agencies that have not fully implemented the program in service and construction contracts, the number of entities affected, and the extent to which they will be affected, is not expected to be significant. The rule may affect the types of products these businesses use during contract performance. Assistance (including product listings and recommendations) is available to all firms at the ENERGY STAR® and FEMP websites, http://www.energystar.gov/​products and http://www.eere.energy.gov/​femp/​procurement/​eep_​requirements.cfm, respectively. Options to comply with the requirements of the rule can be as simple as purchasing ENERGY STAR® or FEMP-designated products when performing service and construction contracts. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Parts 23, 36, and 52 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 20006-008), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DOD, GSA, and NASA propose amending 48 CFR parts 23, 36, and 52 as set forth below:

1. The authority citation for 48 CFR parts 23, 36, and 52 continues to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).