00-16298. Energy Savings Performance Contracting; Technical Amendments

AGENCY:

Department of Energy.

ACTION:

Final rule.

SUMMARY:

The Department of Energy (DOE) is amending the sunset provision in its regulations on energy savings performance contracting to incorporate the new sunset date established by the Energy Conservation Reauthorization Act of 1998. In addition, DOE is updating references to certain Federal Acquisition Regulation (FAR) provisions in a section of these regulations that deals with unsolicited energy savings performance contract proposals.

EFFECTIVE DATE:

The final rule is effective on June 28, 2000.

FOR FURTHER INFORMATION CONTACT:

Tatiana Strajnic Muessel, Office of Federal Energy Management Programs, EE-90, 1000 Independence Ave., S.W., Washington, DC 20585; telephone: [phone].

SUPPLEMENTARY INFORMATION:

I. Explanation of Technical Amendments

When first enacted, section 801(c) of the National Energy Conservation Policy Act provided that the authority to enter into new energy savings performance contracts under that Act “shall cease to be effective five years after the date procedures and methods are established under subsection (b)” (42 U.S.C. 8287(c)). DOE incorporated this sunset provision in regulations it promulgated on April 10, 1995 (60 FR 18334), and codified in Subpart B of 10 CFR Part 436. Thus, under the original provision, the authority of Federal agencies to award energy savings performance contracts expired on April 10, 2000.

In the Energy Conservation Reauthorization Act of 1998, Public Law 105-388, Congress amended the sunset provision relating to energy savings performance contracts (42 U.S.C. 8287(c)) to provide that the authority to enter into new energy savings performance contracts ceases to be effective on October 1, 2003. DOE is promulgating a technical amendment to 10 CFR 436.30(a) to incorporate the new statutory sunset date in its regulations.

Today's rule also revises 10 CFR 436.33(b)(1) to update the references to the FAR in that paragraph, which relates to DOE's consideration of unsolicited proposals for energy savings performance contracts.

II. Regulatory and Procedural Requirements

A. Review Under Executive Order 12866

DOE determined that today's regulatory action is not “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Accordingly, this action was 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, this final rule meets the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Because DOE is not required by the Administrative Procedure Act (5 U.S.C. 553) or any other law to propose this technical amendment for public comment, DOE did not prepare a regulatory flexibility analysis for this rule.

D. Review Under the Paperwork Reduction Act

No new collection of information is imposed by this interim final rule. Accordingly, no clearance by the Office of Management and Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

E. Review Under the National Environmental Policy Act

DOE has concluded that promulgation of this rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, this rule is covered under the Categorical Exclusion in paragraph A5 to subpart D, 10 CFR part 1021, which covers rulemakings that interpret or amend an existing regulation without changing the environmental effect of the regulation. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

F. Review under Executive Order 13132

Executive Order 13132 (64 FR 43255, August 10, 1999) requires agencies to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects 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.” DOE has examined today's rule and has determined that it 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

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each federal agency to prepare a written assessment of the effects of any federal mandate in a proposed or final rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires a federal agency to develop an effective process to permit timely input by elected officers of state, local, and tribal governments on a proposed “significant intergovernmental mandate,” and it requires an agency to develop a plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect them. This final rule does not contain any federal mandate, so these requirements do not apply.

H. Congressional Notification

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 436

• Energy
• Government contracts

Issued in Washington, DC, on June 21, 2000.

Dan W. Reicher

Assistant Secretary, Energy Efficiency and Renewable Energy.

For the reasons set out in the preamble, DOE amends part 436 of Chapter II, Title 10 of the Code of Federal Regulations, as follows:

PART 436—FEDERAL ENERGY MANAGEMENT AND PLANNING PROGRAMS [AMENDED]

1. The authority citation for Part 436 continues to read as follows:

Authority: 42 U.S.C. 6361; 42 U.S.C. 8251-8263; 42 U.S.C. 8287-8287(c).

2. Section 436.30 in Subpart B, is amended in paragraph (a) by revising the first sentence to read as follows:

§ 436.30

Purpose and scope.

(a) General. This subpart provides procedures and methods which apply to Federal agencies with regard to the award and administration of energy savings performance contracts awarded on or before September 30, 2003. * * *

* * * * *

3. Section 436.33 in Subpart B is amended by revising paragraph (b)(1) to read as follows:

§ 436.33

Procedures and methods for contractor selection.

* * * * *

(b) * * *

(1) Consider unsolicited energy savings performance contract proposals from firms on a qualified contractor list under this subpart which include technical and price proposals and the text of any financing agreement (including a lease-acquisition) without regard to the requirements of 48 CFR 15.602 and 15.602-2(a)(1); 48 CFR 15.603; and 48 CFR 15.607(a), (a)(2), (a)(3), (a)(4) and (a)(5).

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