Defense Federal Acquisition Regulation Supplement: Use of Defense Logistics Agency Energy as a Source of Fuel (DFARS Case 2020-D003), 53683-53684 [2020-18642]

Download as PDF Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations (FAR). Section 219.303 is now reserved in the FAR and appropriate coverage is located at FAR 19.102(b), Determining the appropriate NAICS codes for the solicitation. https://www.govinfo.gov/ content/pkg/FR-2020-02-27/pdf/202002028.pdf#page=23. 2. Update the 219.5 subpart heading to align with the FAR subpart heading. 3. Revise the section 219.502–2 heading to align with the FAR coverage and renumber the section paragraph. Paragraph (a) in FAR 19.502–2 addresses acquisitions below the simplified acquisition threshold (SAT). The DFARS text addresses specific types of acquisitions at dollar values below, at, and above the SAT. The section is being renumbered to reflect implementation of the whole section (i.e., FAR 19.502–2(a) and (b)), not just a single paragraph. 4. Redesignate section 219.505 as 219.502–8 to align with the FAR. 5. Update the section 219.808 heading to align with the FAR. 6. Correct cross references in the introductory text for the following clauses: 252.245–7000, 252.245–7001, 252.245–7002, and 252.245–7003. List of Subjects in 48 CFR Parts 219 and 252 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. (2) Dredging under $1.5 million; and (3) Architect-engineer services for military construction or family housing projects under $1 million (10 U.S.C. 2855). 219.505 [Redesignated as 219.502–8] 5. Redesignate section 219.505 as section 219.502–8. ■ 219.808 [Amended] PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES [Amended] 7. Amend section 252.245–7000 introductory text by removing ‘‘245.107(1)’’ and adding ‘‘245.107(2)’’ in its place. ■ 252.245–7001 [Amended] 8. Amend section 252.245–7001 introductory text by removing ‘‘245.107(2)’’ and adding ‘‘245.107(3)’’ in its place. ■ 252.245–7002 [Amended] 9. Amend section 252.245–7002 introductory text by removing ‘‘245.107(3)’’ and adding ‘‘245.107(4)’’ in its place. ■ 252.245–7003 Therefore, 48 CFR parts 219 and 252 are amended as follows: ■ 1. The authority citation for 48 CFR parts 219 and 252 continues to read as follows: [Amended] 10. Amend section 252.245–7003 introductory text by removing ‘‘245.107(4)’’ and adding ‘‘245.107(5)’’ in its place. ■ [FR Doc. 2020–18635 Filed 8–28–20; 8:45 am] Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. BILLING CODE 5001–06–P PART 219—SMALL BUSINESS PROGRAMS DEPARTMENT OF DEFENSE 219.303 Defense Acquisition Regulations System [Removed] 2. Remove section 219.303. 3. Revise the heading for subpart 219.5 to read as follows: ■ 48 CFR Part 251 ■ [Docket DARS–2020–0029] khammond on DSKJM1Z7X2PROD with RULES Subpart 219.5—Small Business Total Set-Asides, Partial Set-Asides, and Reserves RIN 0750–AK90 Defense Federal Acquisition Regulation Supplement: Use of ■ 4. Revise section 219.502–2 to read as Defense Logistics Agency Energy as a follows: Source of Fuel (DFARS Case 2020– 219.502–2 Total small business set-asides. D003) Unless the contracting officer AGENCY: Defense Acquisition determines that the criteria for set-aside Regulations System, Department of cannot be met, set aside for small Defense (DoD). business concerns acquisitions for— ACTION: Final rule. (1) Construction, including maintenance and repairs, under $2.5 SUMMARY: DoD is issuing a final rule million; amending the Defense Federal VerDate Sep<11>2014 16:03 Aug 28, 2020 Jkt 250001 PO 00000 Frm 00039 Fmt 4700 Acquisition Regulation Supplement (DFARS) to permit the use Defense Logistics Agency Energy as a source of fuel for contractors performing under certain contracts. DATES: Effective August 31, 2020. FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571–372–6093. SUPPLEMENTARY INFORMATION: I. Background 6. Amend the heading for section 219.808 by removing ‘‘negotiations’’ and adding ‘‘negotiation’’ in its place. ■ 252.245–7000 53683 Sfmt 4700 DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to permit contracting officers to authorize contractors to use Defense Logistics Agency (DLA) Energy as a source for Defense Working Capital Fund fuel in the performance of other than costreimbursement contracts. Supplemental guidance and information, on the internal procedures a contracting officer must follow to provide this authorization, are being implemented in DFARS Procedures, Guidance, and Information. DoD contractors provide supplies and services that require the use of ground, aviation, or marine fuels in performance of their contracts. In some instances, these supplies and services are required in locations where there are no commercial fuel sources available, the quality of fuel is degraded, or the commercial fuel supply is inadequate. As a result, the availability of reliable and quality fuel becomes critical for contract performance. DLA Energy has a worldwide bulkfuel supply chain that can provide military specification fuels, as well as most commercial specification ground fuels (e.g., gasoline, diesel, and heating fuel), on military bases. As an acquisition policy, Federal Acquisition Regulation (FAR) 51.1 permits contracting officers to authorize contractors to use Government supply sources in the performance of costreimbursement contracts. The use of fixed-price contracts has increased as a result of statutory and policy acquisition requirements that attempt to reduce risk to the Government. For example, 41 U.S.C. 3307(e)(4)(A)(i) requires commercial supplies and services to be acquired via fixed-price or time-and-materials contracts. As a result, many of the requirements that need to use DLA Energy ground, aviation, or marine fuels are now being awarded as fixed-price contracts and, therefore, are not eligible to authorize the use Government supply sources in performance of the contract, in accordance with FAR 51.1. DoD mission-critical supplies and services are provided by contractors E:\FR\FM\31AUR1.SGM 31AUR1 53684 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations under fixed-price contracts that rely on the ability to utilize fuels for successful contract performance. As a result, this rule intends to help stabilize contractor’s fuel costs and supply chain for fuel, as well as reduce contract performance risk by providing contractors with an adequate and reliable source of fuel, when applicable and necessary. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule does not create new provisions or clauses or impact any existing provisions or clauses. khammond on DSKJM1Z7X2PROD with RULES III. Publication of This Final Rule for Public Comment Is Not Required by Statute The statute that applies to the publication of the FAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule is updating internal operating procedures to permit and advise contracting officers on the procedures to follow when authorizing contractors, as necessary, to use DLA Energy as a source of fuel in performance of certain contracts. IV. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This VerDate Sep<11>2014 16:03 Aug 28, 2020 Jkt 250001 rule is not a major rule under 5 U.S.C. 804. V. Executive Order 13771 This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 222 [Docket No. 200731–0203] VI. Regulatory Flexibility Act RIN 0648–BI91 Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared. 2020 Annual Determination To Implement the Sea Turtle Observer Requirement VII. Paperwork Reduction Act The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 48 CFR Part 251 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR part 251 is amended as follows: PART 251—USE OF GOVERNMENT SOURCES BY CONTRACTORS 1. The authority citation for 48 CFR part 251 is revised to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 2. Section 252.101 is added to read as follows: ■ 251.101 Policy. (a)(1) Notwithstanding the restriction at FAR 51.101(a)(1), contracting officers may authorize contractors to use Defense Logistics Agency Energy as a source of fuel in performance of other than cost-reimbursement contracts, when the fuel is funded by the Defense Working Capital Fund. When providing this authorization to contractors, follow the procedures at PGI 251.101. [FR Doc. 2020–18642 Filed 8–28–20; 8:45 am] BILLING CODE 5001–06–P PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final determination. AGENCY: The National Marine Fisheries Service (NMFS) publishes the final Annual Determination (AD) for 2020, pursuant to its authority under the Endangered Species Act (ESA or Act). Through the AD, NMFS identifies U.S. fisheries operating in the Atlantic Ocean, Gulf of Mexico, and Pacific Ocean that will be required to take fisheries observers upon NMFS’ request. The purpose of observing identified fisheries is to learn more about sea turtle bycatch in a given fishery, evaluate measures to prevent or reduce sea turtle bycatch, and implement the prohibition against sea turtle takes. Fisheries identified on the 2020 AD (see Table 1) will remain on the AD for a five-year period from the effective date of the final determination and will be required to carry observers upon NMFS’ request. DATES: This final determination is effective September 30, 2020. ADDRESSES: Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Jaclyn Taylor, Office of Protected Resources, 301–427–8402; Ellen Keane, Greater Atlantic Region, 978–282–8476; Dennis Klemm, Southeast Region, 727– 824–5312; Dan Lawson, West Coast Region, 206–526–4740; Irene Kelly, Pacific Islands Region, 808–725–5141. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1–800– 877–8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays. SUPPLEMENTARY INFORMATION: SUMMARY: Purpose of the Sea Turtle Observer Requirement Under the ESA, 16 U.S.C. 1531 et seq., NMFS has the responsibility to E:\FR\FM\31AUR1.SGM 31AUR1

Agencies

[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Rules and Regulations]
[Pages 53683-53684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18642]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 251

[Docket DARS-2020-0029]
RIN 0750-AK90


Defense Federal Acquisition Regulation Supplement: Use of Defense 
Logistics Agency Energy as a Source of Fuel (DFARS Case 2020-D003)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to permit the use Defense 
Logistics Agency Energy as a source of fuel for contractors performing 
under certain contracts.

DATES: Effective August 31, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to permit contracting 
officers to authorize contractors to use Defense Logistics Agency (DLA) 
Energy as a source for Defense Working Capital Fund fuel in the 
performance of other than cost-reimbursement contracts. Supplemental 
guidance and information, on the internal procedures a contracting 
officer must follow to provide this authorization, are being 
implemented in DFARS Procedures, Guidance, and Information.
    DoD contractors provide supplies and services that require the use 
of ground, aviation, or marine fuels in performance of their contracts. 
In some instances, these supplies and services are required in 
locations where there are no commercial fuel sources available, the 
quality of fuel is degraded, or the commercial fuel supply is 
inadequate. As a result, the availability of reliable and quality fuel 
becomes critical for contract performance.
    DLA Energy has a worldwide bulk-fuel supply chain that can provide 
military specification fuels, as well as most commercial specification 
ground fuels (e.g., gasoline, diesel, and heating fuel), on military 
bases. As an acquisition policy, Federal Acquisition Regulation (FAR) 
51.1 permits contracting officers to authorize contractors to use 
Government supply sources in the performance of cost-reimbursement 
contracts.
    The use of fixed-price contracts has increased as a result of 
statutory and policy acquisition requirements that attempt to reduce 
risk to the Government. For example, 41 U.S.C. 3307(e)(4)(A)(i) 
requires commercial supplies and services to be acquired via fixed-
price or time-and-materials contracts. As a result, many of the 
requirements that need to use DLA Energy ground, aviation, or marine 
fuels are now being awarded as fixed-price contracts and, therefore, 
are not eligible to authorize the use Government supply sources in 
performance of the contract, in accordance with FAR 51.1.
    DoD mission-critical supplies and services are provided by 
contractors

[[Page 53684]]

under fixed-price contracts that rely on the ability to utilize fuels 
for successful contract performance. As a result, this rule intends to 
help stabilize contractor's fuel costs and supply chain for fuel, as 
well as reduce contract performance risk by providing contractors with 
an adequate and reliable source of fuel, when applicable and necessary.

II. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not create new provisions or clauses or impact any 
existing provisions or clauses.

III. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is the 
Office of Federal Procurement Policy statute (codified at title 41 of 
the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires 
that a procurement policy, regulation, procedure or form (including an 
amendment or modification thereof) must be published for public comment 
if it relates to the expenditure of appropriated funds, and has either 
a significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure, or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment, 
because DoD is not issuing a new regulation; rather, this rule is 
updating internal operating procedures to permit and advise contracting 
officers on the procedures to follow when authorizing contractors, as 
necessary, to use DLA Energy as a source of fuel in performance of 
certain contracts.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 251

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 251 is amended as follows:

PART 251--USE OF GOVERNMENT SOURCES BY CONTRACTORS

0
1. The authority citation for 48 CFR part 251 is revised to read as 
follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


0
2. Section 252.101 is added to read as follows:


251.101   Policy.

    (a)(1) Notwithstanding the restriction at FAR 51.101(a)(1), 
contracting officers may authorize contractors to use Defense Logistics 
Agency Energy as a source of fuel in performance of other than cost-
reimbursement contracts, when the fuel is funded by the Defense Working 
Capital Fund. When providing this authorization to contractors, follow 
the procedures at PGI 251.101.

[FR Doc. 2020-18642 Filed 8-28-20; 8:45 am]
BILLING CODE 5001-06-P