H. R. 1533
IN THE HOUSE OF REPRESENTATIVES
April 8, 2005
Mr. Tom Davis of Virginia (for himself and Mr. Waxman) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To ensure jobs for our future with secure and reliable energy.
Short title; table of contents
This Act may be cited as the
Federal Energy Management Improvement Act of 2005.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents
Title I—Energy efficiency
Sec. 102. Energy management requirements
Sec. 104. Procurement of energy efficient products
Sec. 105. Energy Savings Performance Contracts
Title II—Renewable energy
Sec. 203. Federal purchase requirement
Title VI—Nuclear matters
Sec. 624. Elimination of pension offset
Sec. 632. Whistleblower protection
Title VII—Vehicles and fuels
Sec. 701. Use of alternative fuels by dual-fueled vehicles
Sec. 704. Incremental cost allocation
Sec. 707. Report concerning compliance with alternative fueled vehicle purchasing requirements
Title X—Department of Energy management
Sec. 1001. Additional Assistant Secretary position
Sec. 1002. Other transactions authority
Sec. 1606. Telecommuting study
Energy management requirements
Energy reduction goals
Section 543(a)(1) of the National Energy Conservation Policy Act (42 U.S.C. 8253(a)(1)) is amended by striking
its Federal buildings so that and all that follows through the end and inserting
the Federal buildings of the agency (including each industrial or laboratory facility) so that the energy consumption per gross square foot of the Federal buildings of the agency in fiscal years 2006 through 2015 is reduced, as compared with the energy consumption per gross square foot of the Federal buildings of the agency in fiscal year 2003, by the percentage specified in the following table:
|Fiscal Year||Percentage reduction|
The energy reduction goals and baseline established in paragraph (1) of section 543(a) of the National Energy Conservation Policy Act (42 U.S.C. 8253(a)(1)), as amended by this subsection, supersede all previous goals and baselines under such paragraph, and related reporting requirements.
Review and revision of energy performance requirement
Section 543(a) of the National Energy Conservation Policy Act (42 U.S.C. 8253(a)) is further amended by adding at the end the following:
Not later than December 31, 2014, the Secretary shall review the results of the implementation of the energy performance requirement established under paragraph (1) and submit to Congress recommendations concerning energy performance requirements for fiscal years 2016 through 2025.
Section 543(c)(1) of the National Energy Conservation Policy Act (42 U.S.C. 8253(c)(1)) is amended by striking
An agency may exclude and all that follows through the end and inserting
(A) An agency may exclude, from the energy performance requirement for a fiscal year established under subsection (a) and the energy management requirement established under subsection (b), any Federal building or collection of Federal buildings, if the head of the agency finds that—
compliance with those requirements would be impracticable;
the agency has completed and submitted all federally required energy management reports;
the agency has achieved compliance with the energy efficiency requirements of this Act, the Energy Policy Act of 1992, Executive orders, and other Federal law; and
the agency has implemented all practicable, life cycle cost-effective projects with respect to the Federal building or collection of Federal buildings to be excluded.
A finding of impracticability under subparagraph (A)(i) shall be based on—
the energy intensiveness of activities carried out in the Federal building or collection of Federal buildings; or
the fact that the Federal building or collection of Federal buildings is used in the performance of a national security function.
Review by Secretary
Section 543(c)(2) of the National Energy Conservation Policy Act (42 U.S.C. 8253(c)(2)) is amended—
impracticability standards and inserting
standards for exclusion;
a finding of impracticability and inserting
the exclusion; and
energy consumption requirements and inserting
requirements of subsections (a) and (b)(1).
Section 543(c) of the National Energy Conservation Policy Act (42 U.S.C. 8253(c)) is further amended by adding at the end the following:
Not later than 180 days after the date of enactment of this paragraph, the Secretary shall issue guidelines that establish criteria for exclusions under paragraph (1).
Retention of energy and water savings
Section 546 of the National Energy Conservation Policy Act (42 U.S.C. 8256) is amended by adding at the end the following new subsection:
Retention of energy and water savings
An agency may retain any funds appropriated to that agency for energy expenditures, water expenditures, or wastewater treatment expenditures, at buildings subject to the requirements of section 543(a) and (b), that are not made because of energy savings or water savings. Except as otherwise provided by law, such funds may be used only for energy efficiency, water conservation, or unconventional and renewable energy resources projects.
Section 548(b) of the National Energy Conservation Policy Act (42 U.S.C. 8258(b)) is amended—
in the subsection heading, by inserting
the President and before
President and before
Section 550(d) of the National Energy Conservation Policy Act (42 U.S.C. 8258b(d)) is amended in the second sentence by striking
the 20 percent reduction goal established under section 543(a) of the National Energy Conservation Policy Act (42 U.S.C. 8253(a)). and inserting
each of the energy reduction goals established under section 543(a)..
Procurement of energy efficient products
Part 3 of title V of the National Energy Conservation Policy Act (42 U.S.C. 8251 et seq.), as amended by section 101, is amended by adding at the end the following:
Federal procurement of energy efficient products
In this section:
Energy Star product
The term Energy Star product means a product that is rated for energy efficiency under an Energy Star program.
Energy Star Program
The term Energy Star program means the program established by section 324A of the Energy Policy and Conservation Act.
The term executive agency has the meaning given the term in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).
FEMP designated product
The term FEMP designated product means a product that is designated under the Federal Energy Management Program of the Department of Energy as being among the highest 25 percent of equivalent products for energy efficiency.
Procurement of energy efficient products
To meet the requirements of an executive agency for an energy consuming product, the head of the executive agency shall, except as provided in paragraph (2), procure—
an Energy Star product; or
a FEMP designated product.
The head of an executive agency is not required to procure an Energy Star product or FEMP designated product under paragraph (1) if the head of the executive agency finds in writing that—
an Energy Star product or FEMP designated product is not cost-effective over the life of the product taking energy cost savings into account; or
no Energy Star product or FEMP designated product is reasonably available that meets the functional requirements of the executive agency.
The head of an executive agency shall incorporate into the specifications for all procurements involving energy consuming products and systems, including guide specifications, project specifications, and construction, renovation, and services contracts that include provision of energy consuming products and systems, and into the factors for the evaluation of offers received for the procurement, criteria for energy efficiency that are consistent with the criteria used for rating Energy Star products and for rating FEMP designated products.
Listing of energy efficient products in Federal catalogs
Energy Star products and FEMP designated products shall be clearly identified and prominently displayed in any inventory or listing of products by the General Services Administration or the Defense Logistics Agency. The General Services Administration or the Defense Logistics Agency shall supply only Energy Star products or FEMP designated products for all product categories covered by the Energy Star program or the Federal Energy Management Program, except in cases where the agency ordering a product specifies in writing that no Energy Star product or FEMP designated product is available to meet the buyer’s functional requirements, or that no Energy Star product or FEMP designated product is cost-effective for the intended application over the life of the product, taking energy cost savings into account.
In the case of electric motors of 1 to 500 horsepower, agencies shall select only premium efficient motors that meet a standard designated by the Secretary. The Secretary shall designate such a standard not later than 120 days after the date of the enactment of this section, after considering the recommendations of associated electric motor manufacturers and energy efficiency groups.
All Federal agencies are encouraged to take actions to maximize the efficiency of air conditioning and refrigeration equipment, including appropriate cleaning and maintenance, including the use of any system treatment or additive that will reduce the electricity consumed by air conditioning and refrigeration equipment. Any such treatment or additive must be—
determined by the Secretary to be effective in increasing the efficiency of air conditioning and refrigeration equipment without having an adverse impact on air conditioning performance (including cooling capacity) or equipment useful life;
determined by the Administrator of the Environmental Protection Agency to be environmentally safe; and
shown to increase seasonal energy efficiency ratio (SEER) or energy efficiency ratio (EER) when tested by the National Institute of Standards and Technology according to Department of Energy test procedures without causing any adverse impact on the system, system components, the refrigerant or lubricant, or other materials in the system.
Not later than 180 days after the date of the enactment of this section, the Secretary shall issue guidelines to carry out this section.
The table of contents of the National Energy Conservation Policy Act is further amended by inserting after the item relating to section 552 the following new item:
Sec. 553. Federal procurement of energy efficient products
Energy Savings Performance Contracts
Section 801(a) of the National Energy Conservation Policy Act (42 U.S.C. 8287(a)) is amended by adding at the end the following subparagraph:
All Federal agencies combined may not, after the date of enactment of the Energy Policy Act of 2005, enter into more than a total of 100 contracts under this title. Payments made by the Federal Government under all contracts permitted by this subparagraph combined shall not exceed a total of $500,000,000. Each Federal agency shall appoint a coordinator for Energy Savings Performance Contracts with the responsibility to monitor the number of such contracts for that Federal agency and the investment value of each contract. The coordinators for each Federal agency shall meet monthly to ensure that the limits specified in this subparagraph on the number of contracts and the payments made for the contracts are not exceeded.
Section 804(1) of the National Energy Conservation Policy Act (42 U.S.C. 8287c(1)) is amended to read as follows:
Federal agency means the Department of Defense, the Department of Veterans Affairs, and the Department of Energy.
Validity of contracts
The amendments made by this subsection shall not affect the validity of contracts entered into under title VIII of the National Energy Conservation Policy Act (42 U.S.C. 8287 et seq.) before the date of enactment of this Act, or of contracts described in subsection (h).
Effective October 1, 2006, section 801(c) of the National Energy Conservation Policy Act (42 U.S.C. 8287(c)) is repealed.
Payment of costs
Section 802 of the National Energy Conservation Policy Act (42 U.S.C. 8287a) is amended by inserting
, water, or wastewater treatment after
payment of energy.
Section 804(2) of the National Energy Conservation Policy Act (42 U.S.C. 8287c(2)) is amended to read as follows:
The term energy savings means a reduction in the cost of energy, water, or wastewater treatment, from a base cost established through a methodology set forth in the contract, used in an existing federally owned building or buildings or other federally owned facilities as a result of—
the lease or purchase of operating equipment, improvements, altered operation and maintenance, or technical services;
the increased efficient use of existing energy sources by cogeneration or heat recovery, excluding any cogeneration process for other than a federally owned building or buildings or other federally owned facilities; or
the increased efficient use of existing water sources in either interior or exterior applications.
Energy savings contract
Section 804(3) of the National Energy Conservation Policy Act (42 U.S.C. 8287c(3)) is amended to read as follows:
The terms energy savings contract and energy savings performance contract mean a contract that provides for the performance of services for the design, acquisition, installation, testing, and, where appropriate, operation, maintenance, and repair, of an identified energy or water conservation measure or series of measures at 1 or more locations. Such contracts shall, with respect to an agency facility that is a public building (as such term is defined in section 3301 of title 40, United States Code), be in compliance with the prospectus requirements and procedures of section 3307 of title 40, United States Code.
Energy or water conservation measure
Section 804(4) of the National Energy Conservation Policy Act (42 U.S.C. 8287c(4)) is amended to read as follows:
The term energy or water conservation measure means—
an energy conservation measure, as defined in section 551; or
a water conservation measure that improves the efficiency of water use, is life-cycle cost-effective, and involves water conservation, water recycling or reuse, more efficient treatment of wastewater or stormwater, improvements in operation or maintenance efficiencies, retrofit activities, or other related activities, not at a Federal hydroelectric facility.
Not later than 180 days after the date of the enactment of this Act, the Secretary of Energy shall complete a review of the Energy Savings Performance Contract program to identify statutory, regulatory, and administrative obstacles that prevent Federal agencies from fully utilizing the program. In addition, this review shall identify all areas for increasing program flexibility and effectiveness, including audit and measurement verification requirements, accounting for energy use in determining savings, contracting requirements, including the identification of additional qualified contractors, and energy efficiency services covered. The Secretary shall report these findings to Congress and shall implement identified administrative and regulatory changes to increase program flexibility and effectiveness to the extent that such changes are consistent with statutory authority.
Extension of authority
Any energy savings performance contract entered into under section 801 of the National Energy Conservation Policy Act (42 U.S.C. 8287) after October 1, 2006, and before the date of enactment of this Act, shall be deemed to have been entered into pursuant to such section 801 as amended by subsection (a) of this section.
Federal purchase requirement
The President, acting through the Secretary of Energy, shall seek to ensure that, to the extent economically feasible and technically practicable, of the total amount of electric energy the Federal Government consumes during any fiscal year, the following amounts shall be renewable energy:
Not less than 3 percent in fiscal years 2007 through 2009.
Not less than 5 percent in fiscal years 2010 through 2012.
Not less than 7.5 percent in fiscal year 2013 and each fiscal year thereafter.
In this section:
The term biomass means any solid, nonhazardous, cellulosic material that is derived from—
any of the following forest-related resources: mill residues, precommercial thinnings, slash, and brush, or nonmerchantable material;
solid wood waste materials, including waste pallets, crates, dunnage, manufacturing and construction wood wastes (other than pressure-treated, chemically-treated, or painted wood wastes), and landscape or right-of-way tree trimmings, but not including municipal solid waste (garbage), gas derived from the biodegradation of solid waste, or paper that is commonly recycled;
agriculture wastes, including orchard tree crops, vineyard, grain, legumes, sugar, and other crop by-products or residues, and livestock waste nutrients; or
a plant that is grown exclusively as a fuel for the production of electricity.
The term renewable energy means electric energy generated from solar, wind, biomass, landfill gas, geothermal, municipal solid waste, or new hydroelectric generation capacity achieved from increased efficiency or additions of new capacity at an existing hydroelectric project.
For purposes of determining compliance with the requirement of this section, the amount of renewable energy shall be doubled if—
the renewable energy is produced and used on-site at a Federal facility;
the renewable energy is produced on Federal lands and used at a Federal facility; or
the renewable energy is produced on Indian land as defined in title XXVI of the Energy Policy Act of 1992 (25 U.S.C. 3501 et. seq.) and used at a Federal facility.
Not later than April 15, 2007, and every 2 years thereafter, the Secretary of Energy shall provide a report to Congress on the progress of the Federal Government in meeting the goals established by this section.
Elimination of pension offset
Section 161 of the Atomic Energy Act of 1954 (42 U.S.C. 2201) is amended by adding at the end the following:
Exempt from the application of sections 8344 and 8468 of title 5, United States Code, an annuitant who was formerly an employee of the Commission who is hired by the Commission as a consultant, if the Commission finds that the annuitant has a skill that is critical to the performance of the duties of the Commission.
Definition of employer
Section 211(a)(2) of the Energy Reorganization Act of 1974 (42 U.S.C. 5851(a)(2)) is amended—
in subparagraph (C), by striking
and at the end;
in subparagraph (D), by striking the period at the end and inserting
; and and
by adding at the end the following:
a contractor or subcontractor of the Commission.
De novo review
Subsection (b) of such section 211 is amended by adding at the end the following new paragraph:
If the Secretary has not issued a final decision within 540 days after the filing of a complaint under paragraph (1), and there is no showing that such delay is due to the bad faith of the person seeking relief under this paragraph, such person may bring an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.
Vehicles and fuels
Use of alternative fuels by dual-fueled vehicles
Section 400AA(a)(3)(E) of the Energy Policy and Conservation Act (42 U.S.C. 6374(a)(3)(E)) is amended to read as follows:
Dual fueled vehicles acquired pursuant to this section shall be operated on alternative fuels unless the Secretary determines that an agency qualifies for a waiver of such requirement for vehicles operated by the agency in a particular geographic area in which—
the alternative fuel otherwise required to be used in the vehicle is not reasonably available to retail purchasers of the fuel, as certified to the Secretary by the head of the agency; or
the cost of the alternative fuel otherwise required to be used in the vehicle is unreasonably more expensive compared to gasoline, as certified to the Secretary by the head of the agency.
The Secretary shall monitor compliance with this subparagraph by all such fleets and shall report annually to Congress on the extent to which the requirements of this subparagraph are being achieved. The report shall include information on annual reductions achieved from the use of petroleum-based fuels and the problems, if any, encountered in acquiring alternative fuels.
Incremental cost allocation
Section 303(c) of the Energy Policy Act of 1992 (42 U.S.C. 13212(c)) is amended by striking
may and inserting
Report concerning compliance with alternative fueled vehicle purchasing requirements
Section 310(b)(1) of the Energy Policy Act of 1992 (42 U.S.C. 13218(b)(1)) is amended by striking
1 year after the date of enactment of this subsection and inserting
February 15, 2006.
Department of Energy management
Additional Assistant Secretary position
Additional Assistant Secretary position to enable improved management of nuclear energy issues
Section 203(a) of the Department of Energy Organization Act (42 U.S.C. 7133(a)) is amended by striking
six Assistant Secretaries and inserting
7 Assistant Secretaries.
Sense of Congress
It is the sense of Congress that the leadership for departmental missions in nuclear energy should be at the Assistant Secretary level.
Technical and conforming amendments
Section 5315 of title 5, United States Code, is amended by striking
Assistant Secretaries of Energy (6) and inserting
Assistant Secretaries of Energy (7).
Department of Energy Organization Act
The table of contents for the Department of Energy Organization Act (42 U.S.C. 7101 note) is amended—
Section 209 and inserting
213. and inserting
214. and inserting
215. and inserting
Sec. 215.; and
216. and inserting
Other transactions authority
Section 646 of the Department of Energy Organization Act (42 U.S.C. 7256) is amended by adding at the end the following:
In addition to other authorities granted to the Secretary under law, the Secretary may enter into other transactions on such terms as the Secretary may deem appropriate in furtherance of research, development, or demonstration functions vested in the Secretary. Such other transactions shall not be subject to the provisions of section 9 of the Federal Nonnuclear Energy Research and Development Act of 1974 (42 U.S.C. 5908) or section 152 of the Atomic Energy Act of 1954 (42 U.S.C. 2182).
The Secretary shall ensure that—
to the maximum extent the Secretary determines practicable, no transaction entered into under paragraph (1) provides for research, development, or demonstration that duplicates research, development, or demonstration being conducted under existing projects carried out by the Department;
to the extent the Secretary determines practicable, the funds provided by the Government under a transaction authorized by paragraph (1) do not exceed the total amount provided by other parties to the transaction; and
to the extent the Secretary determines practicable, competitive, merit-based selection procedures shall be used when entering into transactions under paragraph (1).
A transaction authorized by paragraph (1) may be used for a research, development, or demonstration project only if the Secretary makes a written determination that the use of a standard contract, grant, or cooperative agreement for the project is not feasible or appropriate.
The Secretary shall protect from disclosure, including disclosure under section 552 of title 5, United States Code, for up to 5 years after the date the information is received by the Secretary—
a proposal, proposal abstract, and supporting documents submitted to the Department in a competitive or noncompetitive process having the potential for resulting in an award under paragraph (1) to the party submitting the information; and
a business plan and technical information relating to a transaction authorized by paragraph (1) submitted to the Department as confidential business information.
The Secretary may protect from disclosure, for up to 5 years after the information was developed, any information developed pursuant to a transaction under paragraph (1) which developed information is of a character that it would be protected from disclosure under section 552(b)(4) of title 5, United States Code, if obtained from a person other than a Federal agency.
Not later than 90 days after the date of enactment of this subsection, the Secretary shall prescribe guidelines for using other transactions authorized by paragraph (1). Such guidelines shall be published in the Federal Register for public comment under rulemaking procedures of the Department.
The authority of the Secretary under this subsection may be delegated only to an officer of the Department who is appointed by the President by and with the advice and consent of the Senate and may not be delegated to any other person.
Not later than September 31, 2006, the Comptroller General of the United States shall report to Congress on the Department’s use of the authorities granted under this section, including the ability to attract nontraditional government contractors and whether additional safeguards are needed with respect to the use of such authorities.
In this section, the term nontraditional Government contractor has the same meaning as the term nontraditional defense contractor as defined in section 845(e) of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160; 10 U.S.C. 2371 note).
The Secretary, in consultation with the Commission, the Director of the Office of Personnel Management, the Administrator of General Services, and the Administrator of NTIA, shall conduct a study of the energy conservation implications of the widespread adoption of telecommuting by Federal employees in the United States.
Required subjects of study
The study required by subsection (a) shall analyze the following subjects in relation to the energy saving potential of telecommuting by Federal employees:
Reductions of energy use and energy costs in commuting and regular office heating, cooling, and other operations.
Other energy reductions accomplished by telecommuting.
Existing regulatory barriers that hamper telecommuting, including barriers to broadband telecommunications services deployment.
Collateral benefits to the environment, family life, and other values.
The Secretary shall submit to the President and Congress a report on the study required by this section not later than 6 months after the date of enactment of this Act. Such report shall include a description of the results of the analysis of each of the subject described in subsection (b).
As used in this section:
The term Secretary means the Secretary of Energy.
The term Commission means the Federal Communications Commission.
The term NTIA means the National Telecommunications and Information Administration of the Department of Commerce.
The term telecommuting means the performance of work functions using communications technologies, thereby eliminating or substantially reducing the need to commute to and from traditional worksites.
The term Federal employee has the meaning provided the term employee by section 2105 of title 5, United States Code.