[Federal Register: September 2, 2003 (Volume 68, Number 169)]
[Rules and Regulations]
[Page 52129-52132]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se03-18]
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DEPARTMENT OF ENERGY
48 CFR Parts 923 and 970
RIN 1991-AB59
Acquisition Regulation: Motor Vehicle Fleet Fuel Efficiency
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is amending its acquisition
regulation to implement Executive Order 13149, dated April 21, 2000,
entitled Greening the Government Through Federal Fleet and
Transportation Efficiency. Specifically, the Department is addressing
the requirements relating to Procurement of Environmentally Preferable
Motor Vehicle Products and Government-Owned Contractor Operated
Vehicles, as they relate to the Department's acquisition program,
including its management contracts with motor vehicle fleet
responsibilities.
EFFECTIVE DATE: October 2, 2003.
FOR FURTHER INFORMATION CONTACT: Richard Langston at (202) 586-8247 or
richard.langston@pr.doe.gov.
SUPPLEMENTARY INFORMATION
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Congressional Review
J. Review Under Executive Order 13211
K. Review Under the Treasury and General Government
Appropriations Act, 2001
L. Approval by the Office of the Secretary of Energy
I. Background
The purpose of this rulemaking is to implement the goals and
requirements of Executive Order 13149, dated April 21, 2000 (65 FR
24593), entitled Greening the Government Through Federal Fleet and
Transportation Efficiency.
The purpose of the Executive Order is to ensure that the Federal
Government exercises leadership in the reduction of petroleum
consumption through improvements in fleet fuel efficiency and the use
of alternative fuel vehicles and alternative fuels. The specific
provisions affecting the Department's acquisition program including its
management contracts with motor vehicle fleet responsibilities are as
follows. Part 2 of the Executive Order establishes goals for the
reduction of petroleum consumption in the Federal Government motor
vehicle fleet and requires the development of strategies for the
increased use of alternative fuel vehicles, increased use of
alternative fuels accompanied by improved alternative fuel
infrastructure, and the acquisition of higher fuel economy vehicles. In
addition, section 403 of the Executive Order encourages the acquisition
by Federal agencies of environmentally preferable motor vehicle
products, including the use of biobased motor vehicle products. Section
403.a emphasizes the current restriction on the use of other than re-
refined motor vehicle lubricating oils (found in section 507 of
Executive Order 13101, and implemented by 48 CFR (FAR) 23.404) by
restating that restriction as a prohibition on the acquisition of
virgin petroleum motor vehicle lubricating oils. That restriction and
the requirements of Sections 403.b and 403.c are addressed by the
Department's Affirmative Procurement Program. An Affirmative
Procurement Program is required of Federal agencies by 48 CFR (FAR)
23.404, Agency affirmative procurement programs, and is implemented in
DOE by 48 CFR (DEAR) 923.405, Procedures [DOE supplemental coverage--
paragraph (e)]. The Department's Affirmative Procurement Program
extends to its management contractors pursuant to 48 CFR (DEAR)
970.2304, Use of recovered/recycled materials. Section 505 of the
Executive Order requires agencies to ensure that the goals and
requirements of the Executive Order are incorporated into management
contracts which involve management of Federal fleet motor vehicles.
Finally, Section 506 of the Executive Order exempts military tactical,
law enforcement and emergency vehicles from the requirements of the
Executive Order.
The clause specified by this rule is a mandatory clause for use in
management and operating contracts involving motor vehicle fleet
operations.
[[Page 52130]]
Contracting officers are strongly encouraged to add the clause at the
next fee negotiation following the effective date of this rule. The
clause should be included in new management and operating contracts.
II. Section-by-Section Analysis
The Department of Energy amends the regulation as follows:
1. A new subpart 923.7, Contracting For Environmentally Preferable
and Energy-Efficient Products and Services, is added. It contains Sec.
923.703, Policy.
2. A new Sec. 970.2307, Contracting for environmentally preferable
and energy-efficient products and services, is added. It includes
Subsections 970.2307-1, Motor vehicle fleet operations, and 970.2307-2,
Contract clause.
3. A new clause, DOE Motor Vehicle Fleet Fuel Efficiency, is added
as Sec. 970.5223-5.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
“significant regulatory action” under Executive Order 12866,
“Regulatory Planning and Review,” (58 FR 51735, October 4, 1993).
Accordingly, this rule is not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs of the Office
of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
“Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and, (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
these regulations meet the relevant standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
This rule has been reviewed under the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., which requires preparation of an initial regulatory
flexibility analysis for any rule that must be proposed for public
comment and that is likely to have significant economic impact on a
substantial number of small entities. DOE is not required by the
Administrative Procedure Act (5 U.S.C. 553) or any other law to propose
this procurement rule for public comment. Accordingly, the Regulatory
Flexibility Act requirements do not apply to this rulemaking, and no
regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
There are no new information collection or record keeping
requirements associated with this action.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this rule falls into a class
of actions which would not individually or cumulatively have
significant impact on the human environment, as determined by DOE's
regulations (10 CFR part 1021, subpart D) implementing the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.).
Specifically, this rule is categorically excluded from NEPA review
because the rule establishes internal procedures and a DEAR contract
clause and is considered to be strictly procedural (categorical
exclusion A6); therefore, this rule does not require an environmental
impact statement or environmental assessment pursuant to NEPA.
F. Review Under Executive Order 13132
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined today's rule and has
determined that it does not preempt State law and does not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a detailed assessment of costs and
benefits of any rule imposing a Federal mandate with costs to State,
local or tribal governments, or to the private sector, of $100 million
or more. This rulemaking would only affect private sector entities, and
the impact is less than $100 million.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rule or policy that may affect
family well-being. This rulemaking will have no impact on family well-
being.
I. Congressional Review
As required by 5 U.S.C. 801, the Department of Energy will report
to Congress promulgation of this rule prior to its effective date. The
report will state that it has been determined that the rule is not a
“major rule” as defined by 5 U.S.C. 804(3).
J. Review Under Executive Order 13211
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355,
May 22, 2001) requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any
significant energy action. A “significant energy action” is defined
as any action by an agency that promulgates or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have
[[Page 52131]]
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.
Today's rule is not a significant energy action. Accordingly, DOE
has not prepared a Statement of Energy Effects.
K. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001, 44
U.S.C. 3516, note, provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's notice under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in these guidelines.
L. Approval by the Office of the Secretary of Energy
Issuance of this final rule has been approved by the Office of the
Secretary of Energy.
List of Subjects in 48 CFR Parts 923 and 970
Government procurement.
Issued in Washington, DC, on August 26, 2003.
Stephen D. Mournighan,
Acting Director, Office of Procurement and Assistance Management,
Office of Management, Budget and Evaluation, Department of Energy.
Robert C. Braden, Jr.,
Director, Office of Procurement and Assistance Management, National
Nuclear Security Administration.
0
For the reasons set out in the preamble, Chapter 9 of Title 48 of the
Code of Federal Regulations is amended as follows.
PART 923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
0
1. The authority citation for part 923 continues to read:
Authority: 42 U.S.C. 7101 et seq.; 41 U.S.C. 418b; 50 U.S.C.
2401 et seq.
0
2. Subpart 923.7 is added to read as follows:
Subpart 923.7--Contracting for Environmentally Preferable and
Energy-efficient Products and Services
Sec. 923.703 Policy.
Executive Order 13149, dated April 21, 2000, entitled Greening the
Government Through Federal Fleet and Transportation Efficiency,
provides that the Federal Government exercise leadership in the
reduction of petroleum consumption through improvements in its motor
fleet fuel efficiency and increases in its use of alternative fuel
vehicles and alternative fuels. The specific provisions affecting the
Department's acquisition program are as follows. Part 2 of the
Executive Order establishes goals for the reduction of petroleum
consumption in the motor vehicle fleet and requires the development of
strategies for the increased use of alternative fuel vehicles,
increased use of alternative fuels accompanied by improved alternative
fuel infrastructure, and the acquisition of higher fuel economy
vehicles. Procurement personnel involved in the acquisition of motor
vehicles, including lease, and motor vehicle products should
familiarize themselves with these requirements and assist their fleet
management personnel in acquiring vehicles and products which comply
with the requirements of the Executive Order and the Department's
compliance strategy. In addition, section 403 of the Executive Order
provides for the acquisition of environmentally preferable motor
vehicle products, including the use of biobased motor vehicle products.
Environmentally preferable motor vehicle products include re-refined
motor vehicle lubricating oils, retread tires, recycled engine
coolants, and bio-based motor vehicle products. Use of these products
is addressed by the Department's Affirmative Procurement Program
required by 48 CFR (FAR) 23.404, Agency affirmative procurement
programs, as implemented by 48 CFR (DEAR) 923.405, Procedures [DOE
supplemental coverage--paragraph (e)]. Environmentally preferable motor
vehicle products are among the items designated in the Comprehensive
Procurement Guidelines, which lists products with recovered content
that Federal agencies and their contractors are to buy. That list is
published by the Environmental Protection Agency pursuant to the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6962, and
regulations published at 40 CFR part 247.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
0
3. The authority citation for part 970 continues to read as follows:
Authority: 42 U.S.C. 2201; 42 U.S.C. 7101 et seq.; 50 U.S.C.
2401 et seq.
Subpart 970.23--Environmental, Conservation, and Occupational
Safety Programs
0
4. Sections 970.2307, 970.2307-1, and 970.2307-2 are added to read as
follows:
Sec. 970.2307 Contracting for Environmentally Preferable and Energy-
Efficient Products and Services.
Sec. 970.2307-1 Motor vehicle fleet operations.
Executive Order 13149 provides that the Federal motor vehicle fleet
will serve as an example and provide a leadership role in the reduction
of petroleum consumption through improvements in fleet fuel efficiency
and the use of alternative fuel vehicles and alternative fuels. Part 2
of the Order establishes goals for Federal Government fleet efficiency
and requires the development of strategies to accomplish the goals.
Section 403 of the Order provides that environmentally preferable motor
vehicle products, including biobased motor vehicle products, will be
used in the maintenance of Federal fleet motor vehicles when these
products are reasonably available and meet vehicle manufacturers'
recommended performance standards. Environmentally preferable motor
vehicle products are among the products contained in the Comprehensive
Procurement Guidelines list of products with recycled content to be
procured pursuant to the clause at 48 CFR 970.5223-2. Section 505 of
Executive Order 13149 requires that the goals and requirements of the
Order be included in all management contracts which include Federal
motor vehicle fleet operations. Section 506 of Executive Order 13149
exempts military tactical, law enforcement, and emergency vehicles from
the requirements of the order.
Sec. 970.2307-2 Contract clause.
Include the clause at 970.5223-5, DOE Motor Vehicle Fleet Fuel
Efficiency, in all management contracts providing for Contractor
management of the motor vehicle fleet.
[[Page 52132]]
Subpart 970.52--Contract Clauses for Management and Operating
Contracts
0
5. Section 970.5223-5 is added to read as follows:
Sec. 970.5223-5 DOE motor vehicle fleet fuel efficiency.
As prescribed in 48 CFR 970.2307-2, insert the following clause in
contracts providing for Contractor management of the motor vehicle
fleet.
DOE MOTOR VEHICLE FLEET FUEL EFFICIENCY
(Oct 2003)
When managing Government-owned vehicles for the Department of
Energy, the Contractor will conduct operations relating to such
vehicles in accordance with the goals and requirements of Executive
Order 13149, Greening the Government Through Federal Fleet and
Transportation Efficiency, and implementing guidance contained in
the document entitled U.S. Department of Energy Compliance Strategy
for Executive Order 13149 (April 2001) and future revisions of this
compliance strategy that are identified in writing by the
Contracting Officer. Section 506 of Executive Order 13149 exempts
military tactical, law enforcement, and emergency vehicles from the
requirements of the order.
[FR Doc. 03-22301 Filed 8-29-03; 8:45 am]
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