Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Rules and Regulations 78997 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 215, 225, and 252 

[Docket DARS–2024–0002] 

RIN 0750–AL64 

Defense Federal Acquisition 

Regulation Supplement: Assuring 

Integrity of Overseas Fuel Supplies 

(DFARS Case 2022–D013) 

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 implement a section of the 

National Defense Authorization Act for 

Fiscal Year 2022 that requires offerors to 

certify that they will not provide fuel 

from a prohibited source and that they 

will comply with certain export control 

and anticorruption regulations and 

statutes for contracts awarded for the 

acquisition of fuel in support of 

overseas contingency operations. 

DATES: Effective October 1, 2024. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jon Snyder, telephone 703–945–5341. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 89 FR 11800 on 

February 15, 2024, to implement section 

843 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2022 (Pub. L. 117–81). Section 

843 requires offerors to certify that fuel 

to be provided for a contract in support 

of an overseas contingency operation is 

not sourced from a prohibited nation or 

region and to furnish such records as are 

necessary to verify their compliance 

with applicable export control and 

anticorruption regulations and statutes. 

Section 843 requires contracting 

officers, when conducting a source 

selection for such contracts, to consider 

using tradeoff processes and certain 

evaluation factors. If the contracting 

officer does not consider a tradeoff 

process prior to issuing the solicitation, 

the contracting officer is required to 

justify in writing why a tradeoff process 

was not considered. Section 843 also 

requires the contracting officer to 

ensure, prior to contract award, that the 

offeror is not disqualified based upon an 

unsupported denial of access to a 

facility or equipment by the host nation. 

One respondent submitted public 

comments in response to the proposed 

rule. 

II. Discussion and Analysis 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments is provided, as follows: 

A. Summary of Significant Changes 

From the Proposed Rule 

There are no significant changes from 

the proposed rule. 

B. Analysis of Public Comments 

1. Support for the Rule 

Comment: The respondent expressed 

support for the rule. 

Response: DoD acknowledges the 

respondent’s support for the rule. 

2. Clarifications 

Comment: The respondent 

recommended the rule include Russia as 

a prohibited source and questioned how 

a contracting officer would know if an 

offeror is proposing fuel from Russia or 

not. The respondent suggested that the 

rule should better clarify the definition 

and identification of prohibited sources 

of fuel and include Russia among them. 

Response: This rule implements 

section 843 of the NDAA for FY 2022, 

which does not establish a specific list 

of prohibited countries, entities, or 

individuals. This rule specifies, at 

DFARS 225.7024–2, a prohibition on 

procuring fuel sourced from nations or 

regions that are prohibited from selling 

petroleum to the United States (i.e., 

prohibited sources). These prohibited 

sources are identified in FAR subpart 

25.7 and at https://ofac.treasury.gov/ 

sanctions-programs-and-countryinformation; therefore, it is not 

necessary to identify Russia as a 

prohibited source in this rule. The 

website is added to the final rule at 

DFARS 225.7024–2. 

Comment: The respondent expressed 

concerns regarding the fungibility of 

fuel and the possibility of laundering 

fuel from a prohibited source through an 

allowable fuel storage system. The 

respondent suggests that the rule require 

offerors to provide documentation or 

evidence of the origin and quality of the 

fuel they supply, such as bills of lading, 

certificates of origin, or laboratory tests. 

Response: The rule adds a new 

solicitation provision at DFARS 

252.225–7065, Restriction on 

Acquisition of Fuel for Overseas 

Contingency Operations, which requires 

offerors to certify that the fuel, in whole 

or in part, or derivatives of such fuel, to 

be provided under any contract 

resulting from this solicitation is not 

sourced from a nation or region 

prohibited from selling petroleum to the 

United States. This rule implements 

section 843 of the NDAA for FY 2022, 

which does not require offerors to 

provide documentation to support such 

certifications. 

Comment: The respondent suggested 

that the rule might leverage the logistics 

information technologies to track and 

monitor the fuel supply chain to 

identify any anomalies or discrepancies 

and enforce more strictly the 

applicability of certain laws and 

regulations, such as the Foreign Corrupt 

Practices Act and the Export 

Administration Regulations, to deter 

and punish any violations or corruption 

in the fuel acquisition process. 

Response: Section 843 specifies that 

the contracting officer will obtain 

certain certifications from offerors 

regarding their compliance with certain 

preaward requirements prior to 

awarding a contract. As a result of this 

rule, the offeror is required to certify the 

fuel to be provided under the resulting 

contract is not sourced from nations or 

regions prohibited from selling 

petroleum to the United States. 

There are several mandatory 

solicitation provisions and contract 

clauses that require contractors to 

comply with all applicable laws and 

regulations regarding export-controlled 

items, e.g., International Traffic in Arms 

Regulations and Export Administration 

Regulations. This responsibility exists 

independent of, and is not established 

or limited by, this rule. 

C. Other Changes 

At DFARS 225.7024–3 and 252.225– 

7065, editorial changes are made to use 

the term ‘‘prospective contractor’’ in 

place of ‘‘apparent successful offeror’’ to 

comply with drafting conventions. The 

terms have the same meaning. 

III. Applicability to Contracts At or 

Below the Simplified Acquisition 

Threshold (SAT), for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items), 

and for Commercial Services 

The provision at DFARS 252.225– 

7065 is prescribed at DFARS 225.7024– 

4 for use in solicitations, including 

solicitations using FAR part 12 

procedures for the acquisition of 

commercial products and commercial 

services, that are for the acquisition of 

fuel for overseas contingency operations 

and are expected to exceed the 

simplified acquisition threshold. 

Consistent with the analysis that DoD 

provided in the proposed rule with 

regard to the application of the 

requirements of section 843 of the 


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78998 Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Rules and Regulations 

NDAA for FY 2022, DoD has made the 

determination to apply the statute, as 

implemented in the provision at DFARS 

252.225–7065, to contracts for the 

acquisition of commercial products 

including COTS items and to the 

acquisition of commercial services, as 

defined at Federal Acquisition 

Regulation 2.101. 

IV. Expected Impact of the Rule 

As a result of this final rule, offerors 

responding to a solicitation for fuel, that 

is for an overseas contingency operation 

and that is expected to exceed the SAT, 

are now required to certify that the 

proposed fuel, in whole or in part, or 

derivatives of such fuel will not be 

sourced from a nation or region 

prohibited from selling petroleum to the 

United States. Offerors will also be 

required to comply with certain export 

control and anticorruption statutes and 

regulations. The prospective contractor 

may be requested to provide records to 

verify such compliance upon 

contracting officer request. 

This final rule also imposes new 

requirements on contracting officers. 

Contracting officers must not disqualify 

an offeror based on an unsupported 

denial of access to a facility or 

equipment by a host nation government. 

When conducting a source selection for 

such acquisitions, contracting officers 

will be required to consider the use of 

a tradeoff process and the use of certain 

evaluation factors. If the contracting 

officer does not consider a tradeoff 

process, the contracting officer must 

justify and obtain approval of the 

rationale for not considering a tradeoff 

process. 

V. 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, as amended. 

VI. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD 

will submit a copy of the interim or 

final rule with the form, Submission of 

Federal Rules under the Congressional 

Review Act, to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. A major rule under the 

Congressional Review Act cannot take 

effect until 60 days after it is published 

in the Federal Register. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a major 

rule as defined by 5 U.S.C. 804. 

VII. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq. and is summarized as follows: 

This rule is necessary to implement 

section 843 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2022 (Pub. L. 117–81). Section 

843 requires offerors to certify that the 

fuel procured for an overseas 

contingency operation is not sourced 

from a prohibited nation or region and 

to furnish such records as are necessary 

to verify their compliance with certain 

export control and anticorruption 

statutes and regulations. Section 843 

requires contracting officers to consider 

a tradeoff process and the use of certain 

evaluation factors when procuring fuel 

for an overseas contingency operation. If 

the contracting officer does not consider 

a tradeoff process, section 843 requires 

the contracting officer to justify, before 

issuing the solicitation, why a tradeoff 

process was not considered. The 

objective of the rule is to implement 

section 843 of the NDAA for FY 2022. 

There were no significant issues 

raised by the public in response to the 

initial regulatory flexibility analysis. 

Data from the Federal Procurement 

Data System was analyzed for fiscal 

years 2021, 2022, and 2023 for DoD 

contracts awarded to procure fuel for 

overseas operations. The data revealed 

there was an average of five awards per 

fiscal year for the procurement of fuel 

supporting overseas operations. These 

awards were made to three unique 

entities, of which none were small 

entities. Therefore, DoD does not 

anticipate that this final rule will impact 

any small entities. 

The rule does not impose any new 

reporting, recordkeeping, or other 

compliance requirements for small 

entities. 

There are no known alternatives that 

would accomplish the stated objectives 

of the applicable statute. The rule is not 

expected to have a significant economic 

impact on small entities. 

VIII. Paperwork Reduction Act 

This final 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 Parts 212, 

215, 225, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System amends 48 CFR 

parts 212, 215, 225, and 252 as follows: 

■ 1. The authority citation for parts 212, 

215, 225, and 252 continues to read as 

follows: 

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

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

■ 2. Amend section 212.203 by adding 

paragraph (5) to read as follows: 

212.203 Procedures for solicitation, 

evaluation, and award. 

* * * * * 

(5) See 215.101–71 and 225.7024 for 

the acquisition of fuel for overseas 

contingency operations. 

■ 3. Amend section 212.301 by adding 

paragraph (f)(x)(PP) to read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

* * * * * 

(f) * * * 

(x) * * * 

(PP) Use the provision at 252.225– 

7065, Restriction on Acquisition of Fuel 

for Overseas Contingency Operations, as 

prescribed in 225.7024–4, to comply 

with section 843 of the National Defense 

Authorization Act for Fiscal Year 2022 

(Pub. L. 117–81). 

* * * * * 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 4. Add section 215.101–71 to read as 

follows: 

215.101–71 Tradeoff process when 

acquiring fuel for overseas contingency 

operations. 

(a) When conducting a source 

selection for the acquisition of fuel that 

is for an overseas contingency operation 

and is expected to exceed the simplified 

acquisition threshold, the contracting 


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Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / Rules and Regulations 78999 

officer shall consider using a tradeoff 

process in accordance with FAR 

15.101–1 (section 843 of the National 

Defense Authorization Act for Fiscal 

Year 2022 (Pub. L. 117–81)). The 

contracting officer should consider 

using the following evaluation factors in 

any such tradeoff process: 

(1) Past performance. 

(2) Cost. 

(3) Anticorruption training. 

(4) Anticorruption compliance. 

(b) If a tradeoff process was not 

considered, prior to the issuance of the 

solicitation, the contracting officer shall 

justify in writing why a tradeoff process 

was not considered and obtain approval 

by an official one level above the 

contracting officer. This authority is not 

delegable. The contracting officer shall 

include the justification in the contract 

file. 

PART 225—FOREIGN ACQUISITION 

■ 5. Add sections 225.7024, 225.7024–1, 

225.7024–2, 225.7024–3, and 225.7024– 

4 to read as follows: 

* * * * * 

Sec. 

225.7024 Restriction on acquisition of fuel 

for overseas contingency operations. 

225.7024–1 Scope. 

225.7024–2 Prohibition. 

225.7024–3 Procedures. 

225.7024–4 Solicitation provision. 

* * * * * 

225.7024 Restriction on acquisition of fuel 

for overseas contingency operations. 

225.7024–1 Scope. 

This section implements section 843 

of the National Defense Authorization 

Act for Fiscal Year 2022 (Pub. L. 117– 

81), for the acquisition of fuel for 

overseas contingency operations. 

225.7024–2 Prohibition. 

Contracting officers shall not award, 

for an overseas contingency operation, a 

contract for fuel, in whole or in part, or 

derivatives of such fuel, that is sourced 

from nations or regions prohibited from 

selling petroleum to the United States. 

See FAR subpart 25.7 and the Office of 

Foreign Assets Control website at 

https://ofac.treasury.gov/sanctionsprograms-and-country-information for 

prohibited sources. 

225.7024–3 Procedures. 

(a) For contracts for the acquisition of 

fuel for overseas contingency 

operations, including contracts using 

FAR part 12 procedures, expected to 

exceed the simplified acquisition 

threshold, the contracting officer— 

(1) May request records from the 

prospective contractor to verify 

compliance with the following statutes 

and regulations only when the head of 

the contracting activity determines in 

writing that it is necessary: 

(i) The Foreign Corrupt Practices Act 

(15 U.S.C. 78dd–1 et seq.). 

(ii) International Traffic in Arms 

Regulations at 22 CFR parts 120 through 

130 (see PGI 225.7901–2). 

(iii) Export Administration 

Regulations at 15 CFR parts 730 through 

774 (see PGI 225.7901–2). 

(iv) Relevant regulations promulgated 

by the Office of Foreign Assets Control 

of the Department of the Treasury. 

Sanction information for specific 

countries and programs is available at 

https://ofac.treasury.gov/sanctionsprograms-and-country-information. 

(2) To the maximum extent 

practicable, shall not disqualify an 

otherwise responsible offeror on the 

basis of an unsupported denial of access 

to a facility or equipment by a hostnation government. The provision at 

252.225–7065, Restriction on 

Acquisition of Fuel for Overseas 

Contingency Operations, requires 

offerors to report promptly to the 

contracting officer, prior to award, any 

instance of unsupported denial of access 

to a facility or equipment by a hostnation government that may prevent it 

from complying with the terms and 

conditions of the solicitation. 

(b) See 215.101–71 for the 

requirement to consider using a tradeoff 

process. 

225.7024–4 Solicitation provision. 

Use the provision at 252.225–7065, 

Restriction on Acquisition of Fuel for 

Overseas Contingency Operations, in 

solicitations, including solicitations 

using FAR part 12 procedures for the 

acquisition of commercial products and 

commercial services, that are for the 

acquisition of fuel for overseas 

contingency operations and are 

expected to exceed the simplified 

acquisition threshold. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Add section 252.225–7065 to read 

as follows: 

252.225–7065 Restriction on Acquisition 

of Fuel for Overseas Contingency 

Operations. 

As prescribed in 225.7024–4, use the 

following provision: 

Restriction on Acquisition of Fuel for 

Overseas Contingency Operations (Oct 

2024) 

(a) Prohibition. For an overseas 

contingency operation, DoD may not procure 

fuel in whole or in part, or derivatives of 

such fuel, that is sourced from nations or 

regions prohibited from selling petroleum to 

the United States. See Federal Acquisition 

Regulation subpart 25.7 and the Office of 

Foreign Assets Control website at https://

ofac.treasury.gov/sanctions-programs-andcountry-information for prohibited sources. 

(b) Certification. Offerors shall complete 

the certification in paragraph (b)(1) of this 

provision and submit the certification with 

their offer. 

(1) The Offeror does [ ] does not [ ] certify 

that the fuel, in whole or in part, or 

derivatives of such fuel, to be provided under 

any contract resulting from this solicitation is 

not sourced from a nation or region 

prohibited from selling petroleum to the 

United States. 

(2) Only Offerors who certify that the fuel 

to be provided is not sourced from a 

prohibited nation or region will be eligible 

for award. 

(c) Compliance. 

(1) When requested by the Contracting 

Officer, the prospective Contractor shall 

submit records necessary to demonstrate 

compliance with applicable laws and 

regulations regarding export-controlled items 

and anticorruption statutes and regulations 

including— 

(i) The Foreign Corrupt Practices Act (15 

U.S.C. 78dd–1 et seq.); 

(ii) International Traffic in Arms 

Regulations (ITAR) at 22 CFR parts 120 

through 130 (also see Defense Federal 

Acquisition Regulation Supplement (DFARS) 

clause 252.225–7048, Export-Controlled 

Items); 

(iii) Export Administration Regulations 

(EAR) at 15 CFR parts 730 through 774 (also 

see DFARS clause 252.225–7048); and 

(iv) Relevant regulations promulgated by 

the Office of Foreign Assets Control of the 

Department of the Treasury. Sanction 

information for specific countries and 

programs is available at https://

ofac.treasury.gov/sanctions-programs-andcountry-information. 

(2) The Offeror shall contact the 

Department of State regarding ITAR 

compliance and the Department of 

Commerce regarding EAR compliance. 

(d) Reporting requirement. The Offeror 

shall, prior to contract award, promptly 

report to the Contracting Officer any instance 

of unsupported denial of access to a facility 

or equipment by a host-nation government 

that may prevent it from complying with the 

terms and conditions of the solicitation. 

(End of provision) 

[FR Doc. 2024–21093 Filed 9–25–24; 8:45 am] 

BILLING CODE 6001–FR–P 


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