[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]





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 

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.


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.

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.


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 
    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 
    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.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 11, and 23 as set 
forth below:
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).


2. Amend section 2.101, by adding in alphabetical order, the 
definition, ``Energy-efficient standby power devices'' to read as 

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.
* * * * *


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--
* * * * *

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
* * * * *


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.

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 
    (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 
    (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.

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--
* * * * *
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]