[Federal Register Volume 68, Number 169 (Tuesday, September 2, 2003)]
[Rules and Regulations]
[Pages 52129-52132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22301]


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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 
[email protected].

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]
BILLING CODE 6450-01-P