[Federal Register Volume 68, Number 142 (Thursday, July 24, 2003)]
[Rules and Regulations]
[Pages 43857-43859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18534]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 11, and 23
[FAC 2001-15; FAR Case 2001-028; Item II]
RIN 9000-AJ47
Federal Acquisition Regulation; Energy-Efficient Standby Power
Devices
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to implement
Executive Order (E.O.) 13221 of July 31, 2001, Energy-Efficient Standby
Power Devices, and to clarify requirements for the purchase of
recovered material.
DATES: Effective Date: August 25, 2003.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Laura Smith, at (202) 501-1224. Please cite FAC
2001-15, FAR case 2001-028.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils have agreed to amend the FAR to--
1. Implement E.O. 13221, by providing guidance on energy-efficient
standby power devices; and
2. Clarify requirements for the purchase of recovered material.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 67 FR 64010, October 16, 2002. Four respondents submitted
public comments. A discussion of the comments is provided below. The
Councils concluded that the proposed rule should be converted to a
final rule, with only minor editorial changes made to the proposed rule
(see Response'' to comment number 3).
1. Comment: The respondent supported the proposed revisions to the
FAR, as ``they provide the needed clarity in both these areas and will
enhance contracting officers' ability to effectively purchase green
products.''
Councils' Response: No change.
2. Comment: The proposed FAR 23.203(a)(1)(ii) authorizes the
purchase of products that meet a Department of Energy Federal Energy
Management Program (FEMP) standby power wattage recommendation.
However, the FEMP recommended standby power wattage for about half of
the product categories is higher than the one watt limit mandated by
the E.O., even though the listing of products for the categories
identify numerous products that consume one watt or less in their
standby mode.
Councils' Response: Nonconcur. In accordance with Section 1. of
E.O. 13221, adherence to the one watt requirement is mandated only
``when life-cycle cost-effective and practicable and where the relevant
product's utility and performance are not compromised as a result.''
Pursuant to this direction, FEMP does not recommend restricting
procurement within a product category to items that use only one watt
or less of electricity when such a restriction would not permit
adequate competition among producers.
3. Comment: The definition of energy-efficient standby power
devices that was added in FAR 2.101 could apply to all products that
use power (e.g., a flashlight), rather than ``commercially available,
off-the-shelf products that use external standby power devices, or that
contain an internal standby power function'' per Section 1. of the E.O.
The respondent recommended revising paragraph 1 of the definition to
read: ``(1) Use external standby power devices, or that contain an
internal standby power function.''
Councils' Response: Concur. The Councils have revised the
definition of energy-efficient standby power devices at FAR 2.101
accordingly.
4. Comment: The proposed rule would amend FAR 11.002, Policy, by
adding to paragraphs (d)(1) and (2) a reference to E.O. 13221 and text
regarding products containing energy-efficient standby power devices.
The amendment, as proposed, could be interpreted as giving preference
to products that consume one watt or less while in standby mode over
products that consume zero watts when switched off. This, of course,
would run contrary to the intent of the E.O. Moreover, many office
products rarely enter into a standby power mode and, hence, greater
energy can be conserved via a power management function, a feature
typical on Energy Star-qualified products.
Councils' Response: Nonconcur. The policy statement does not
express a preference for products with energy-efficient standby power
devices over products which do not contain a standby power function.
Rather, the policy statement indicates that if the Government requires
a product that consumes power in a standby mode, the standby power
device should be energy-efficient. Whether a product contains a standby
power device will, in most instances, be determined by agency needs and
related functions required of the product. For product categories
covered by Energy Star, FEMP only considers a product for its standby
power device list if it also meets the Energy Star criteria which
includes power management functions.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 this rule simply
provides additional guidance to Government contracting and technical
personnel with respect to the Government's preference, set forth in FAR
Subpart 23.2, for buying energy-efficient products and services. This
rule requires a contracting officer, when acquiring a product that uses
an external standby power device or that
[[Page 43858]]
contains an internal standby power function, to purchase an energy-
efficient product (when commercially available, life-cycle cost-
effective, and practicable), i.e., a product that uses no more than one
watt in its standby power consuming mode. With respect to the change to
the recovered material text, this rule only clarifies the condition for
when the contracting office shall prepare a written justification.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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.
List of Subjects in 48 CFR Parts 2, 11, and 23
Government procurement.
Dated: July 16, 2003.
Laura Auletta,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 11, and 23 as set
forth below:
0
1. The authority citation for 48 CFR parts 2, 11, and 23 is revised to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101, by adding in alphabetical order, the
definition, ``Energy-efficient standby power devices'' to read as
follows:
2.101 Definitions.
* * * * *
Energy-efficient standby power devices means products that use--
(1) External standby power devices, or that contain an internal
standby power function; and
(2) No more than one watt of electricity in their standby power
consuming mode or meet recommended low standby levels as designated by
the Department of Energy Federal Energy Management Program.
* * * * *
PART 11--DESCRIBING AGENCY NEEDS
0
3. Amend section 11.002 by revising paragraph (d)(1) and the
introductory text of (d)(2) to read as follows:
11.002 Policy.
* * * * *
(d)(1) The Resource Conservation and Recovery Act of 1976 (42
U.S.C. 6901, et seq.), Executive Order 13101 of September 14, 1998,
Greening the Government through Waste Prevention, Recycling, and
Federal Acquisition, Executive Order 13123 of June 3, 1999, Greening
the Government through Efficient Energy Management, and Executive Order
13221 of July 31, 2001, Energy-Efficient Standby Power Devices,
establish requirements for acquiring--
(i) Products containing recovered materials;
(ii) Environmentally preferable products and services;
(iii) Energy-efficient products and services;
(iv) Products and services that utilize renewable energy
technologies; and
(v) Products containing energy-efficient standby power devices.
(2) Executive agencies shall consider use of recovered materials,
energy- and water-efficient products and services, products containing
energy-efficient standby power devices, environmentally preferable
purchasing criteria developed by the EPA, and environmental objectives
(see Subparts 23.2 and 23.4, and 23.703(b)) when--
* * * * *
0
4. Amend section 11.101 in the introductory text of paragraph (b) by
removing ``must'' and adding ``shall'' in its place; and by revising
paragraph (b)(1) to read as follows:
11.101 Order of precedence for requirements documents.
* * * * *
(b) * * *
(1) Energy efficiency, including using products containing energy-
efficient standby power devices and renewable energy technologies; and
* * * * *
PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
0
5. Amend section 23.201 by adding paragraph (e) to read as follows:
23.201 Authorities.
* * * * *
(e) Executive Order 13221 of July 31, 2001, Energy-Efficient
Standby Power Devices.
0
6. Revise section 23.203 to read as follows:
23.203 Energy-efficient products.
(a) If life-cycle cost-effective and available--
(1) When acquiring energy-using products--
(i) Agencies shall purchase ENERGY STAR[reg] or other energy-
efficient items listed on the Department of Energy's Federal Energy
Management Program (FEMP) Product Energy Efficiency Recommendations
product list; and
(ii) For products that consume power in a standby mode and are
listed on FEMP's Standby Power Devices product listing, agencies
shall--
(A) Purchase items which meet FEMP's standby power wattage
recommendation or document the reason for not purchasing such items; or
(B) If FEMP has listed a product without a corresponding wattage
recommendation, purchase items which use no more than one watt in their
standby power consuming mode. When it is impracticable to meet the one
watt requirement, agencies shall purchase items with the lowest standby
wattage practicable; and
(2) 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 the applicable requirements in paragraph (a)(1) of
this section.
(b) The requirements in paragraph (a) of this section only apply
when the relevant product's utility and performance meet the agency's
need.
(c) Information is available via the Internet about--
(1) ENERGY STAR[reg] at http://www.energystar.gov/; and
(2) FEMP at http://www.eere.energy.gov/femp/procurement.
0
7. Amend section 23.405 by revising the introductory text of paragraph
(c) to read as follows:
23.405 Procedures.
* * * * *
(c) The contracting officer shall place in the contract file a
written justification if an acquisition of EPA-designated products
above the micro-purchase threshold does not meet applicable minimum
recovered material content recommended by EPA guidelines. If the agency
has designated an Environmental Executive, the contracting officer
shall give a copy of the written justification to that official. The
contracting officer shall base the justification on the inability to
acquire the product--
* * * * *
0
8. Amend section 23.406 by revising paragraph (a) to read as follows:
[[Page 43859]]
23.406 Solicitation provision and contract clause.
(a) Insert the provision at 52.223-4, Recovered Material
Certification, in solicitations that are for, or specify the use of,
EPA-designated products containing recovered materials.
* * * * *
[FR Doc. 03-18534 Filed 7-23-03; 8:45 am]
BILLING CODE 6820-EP-P