Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Rules and Regulations 48339 

delivered to a covered military 

installation. 

225.7019–3 Waiver. 

(a) Request and approval of waiver. 

The requiring activity may submit to the 

contracting activity a request for waiver 

of the prohibition in 225.7019–2 for a 

specific contract for the acquisition of 

furnished energy for a covered military 

installation. The head of the contracting 

activity, without power of redelegation, 

may approve the waiver, upon 

certification to the congressional 

defense committees that— 

(1) The waiver of section 2821 is 

necessary to ensure an adequate supply 

of furnished energy for the covered 

military installation; and 

(2) National security requirements 

have been balanced against the potential 

risk associated with reliance upon the 

Russian Federation for furnished 

energy. 

(b) Submission of waiver notice. (1) 

Not later than 14 days before the 

execution of any energy contract for 

which a waiver is granted under 

paragraph (a) of this section, the head of 

the contracting activity shall submit to 

the congressional defense committees a 

notice of the waiver. See PGI 225.7019– 

3 for waiver procedures. 

(2) The waiver notice shall include 

the following: 

(i) The rationale for the waiver, 

including the basis for the certifications 

required by paragraph (a) of this section. 

(ii) An assessment of how the waiver 

may impact DoD’s European energy 

resilience strategy. 

(iii) An explanation of the measures 

DoD is taking to mitigate the risk of 

using Russian Federation furnished 

energy. 

225.7019–4 Solicitation provision and 

contract clause. 

Unless a waiver has been granted in 

accordance with 225.7019–3— 

(a) Use the provision at 252.225–7053, 

Representation Regarding Prohibition 

on Use of Certain Energy Sourced from 

Inside the Russian Federation, in 

solicitations, including solicitations 

using FAR part 12 procedures for the 

acquisition of commercial items and 

solicitations at or below the simplified 

acquisition threshold, that are for the 

acquisition of furnished energy for a 

covered military installation; and 

(b) Use the clause at 252.225–7054, 

Prohibition on Use of Certain Energy 

Sourced from Inside the Russian 

Federation, in solicitations and 

contracts, including solicitations and 

contracts using FAR part 12 procedures 

for the acquisition of commercial items 

and solicitations and contracts at or 

below the simplified acquisition 

threshold, that are for the acquisition of 

furnished energy for a covered military 

installation. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Add section 252.225–7053 to read 

as follows: 

252.225–7053 Representation Regarding 

Prohibition on Use of Certain Energy 

Sourced from Inside the Russian 

Federation. 

As prescribed in 225.7019–4(a), use 

the following provision: 

REPRESENTATION REGARDING 

PROHIBITION ON USE OF CERTAIN 

ENERGY SOURCED FROM INSIDE THE 

RUSSIAN FEDERATION (AUG 2021) 

(a) Definitions. As used in this provision— 

Covered military installation means a 

military installation in Europe identified by 

DoD as a main operating base. 

Furnished energy means energy furnished 

to a covered military installation in any form 

and for any purpose, including heating, 

cooling, and electricity. 

Main operating base means a facility 

outside the United States and its territories 

with permanently stationed operating forces 

and robust infrastructure. 

(b) Prohibition. In accordance with section 

2821 of the National Defense Authorization 

Act for Fiscal Year 2020 (Pub. L. 116–92), 

contracts for the acquisition of furnished 

energy for a covered military installation 

shall not use any energy sourced from inside 

the Russian Federation as a means of 

generating the furnished energy for the 

covered military installation, unless a waiver 

is approved. The prohibition— 

(1) Applies to all forms of energy that are 

furnished to a covered military installation; 

and 

(2) Does not apply to energy converted by 

a third party into another form of energy and 

not directly delivered to a covered military 

installation. 

(c) Representation. By submission of its 

offer, the Offeror represents that the Offeror 

will not use or provide any energy sourced 

from inside the Russian Federation as a 

means of generating the furnished energy for 

the covered military installation in the 

performance of any contract, subcontract, or 

other contractual instrument resulting from 

this solicitation. 

(End of provision) 

■ 5. Add section 252.225–7054 to read 

as follows: 

252.225–7054 Prohibition on Use of 

Certain Energy Sourced from Inside the 

Russian Federation. 

As prescribed in 225.7019–4(b), use 

the following clause: PROHIBITION ON 

USE OF CERTAIN ENERGY SOURCED 

FROM INSIDE THE RUSSIAN 

FEDERATION (AUG 2021) 

(a) Definitions. As used in this clause— 

Covered military installation means a 

military installation in Europe identified by 

DoD as a main operating base. 

Furnished energy means energy furnished 

to a covered military installation in any form 

and for any purpose, including heating, 

cooling, and electricity. 

Main operating base means a facility 

outside the United States and its territories 

with permanently stationed operating forces 

and robust infrastructure. 

(b) Prohibition. In accordance with section 

2821 of the National Defense Authorization 

Act for Fiscal Year 2020 (Pub. L. 116–92), the 

Contractor shall not use in the performance 

of this contract any energy sourced from 

inside the Russian Federation as a means of 

generating the furnished energy for the 

covered military installation unless a waiver 

is approved. The prohibition— 

(1) Applies to all forms of energy that are 

furnished to a covered military installation; 

and 

(2) Does not apply to energy converted by 

a third party into another form of energy and 

not directly delivered to a covered military 

installation. 

(c) Subcontracts. The Contractor shall 

insert the substance of this clause, including 

this paragraph (c), in subcontracts and other 

commercial instruments that are for 

furnished energy at a covered military 

installation, including subcontracts and 

commercial instruments for commercial 

items. 

(End of clause) 

[FR Doc. 2021–18340 Filed 8–27–21; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 225 

[Docket DARS–2021–0016] 

RIN 0750–AL37 

Defense Federal Acquisition 

Regulation Supplement; Use of FirmFixed-Price Contracts for Foreign 

Military Sales (DFARS Case 2021– 

D019) 

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 2021 that rescinds the 

requirement for the use of firm-fixedprice contract types for foreign military 

sales unless an exception or waiver 

applies. 


khammond on DSKJM1Z7X2PROD with RULES
48340 Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Rules and Regulations 

DATES: Effective August 30, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Bass, telephone 703–372– 

6174. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is issuing a final rule amending 

the DFARS to implement section 888 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2021 (Pub. 

L. 116–283), which repeals section 830 

of the NDAA for FY 2017 (Pub. L. 114– 

328). DoD published a proposed rule in 

the Federal Register at 84 FR 12179 on 

April 1, 2019, to implement sections 

829 and 830 of the NDAA for FY 2017 

(Pub. L. 114–328). On May 29, 2019, a 

document was published in the Federal 

Register at 84 FR 24734 to extend the 

comment period for 14 days until June 

14, 2019. The final rule implementing 

section 830 was published in the 

Federal Register at 84 FR 65304, on 

November 27, 2019. 

Section 830 was implemented at 

DFARS 225.7301–1, Requirement to Use 

Firm-Fixed-Price Contracts, and 

required the use of firm-fixed-price 

contracts for foreign military sales 

(FMS), unless one of the exceptions or 

the waiver provided in the statute 

applied. 

Section 807 of the NDAA for FY 2020 

(Pub. L. 116–92) delayed the effective 

date of regulations implementing 

section 830 until December 31, 2020. 

Section 888 of the NDAA for FY 2021 

repealed section 830 of the NDAA for 

FY 2017 and the requirement for 

contracting officers to use firm-fixedprice contracts for FMS unless an 

exception or a waiver applies. 

Accordingly, DFARS section 225.7301– 

1 is being removed and reserved. 

II. Publication of This Final Rule for 

Public Comment Is Not Required by 

Statute 

The statute that applies to the 

publication of the Federal Acquisition 

Regulation (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 

that will no longer require contracting 

officers to use firm-fixed-price contracts 

for FMS as directed at DFARS 

225.7301–1(a). In addition, the waiver at 

DFARS 225.7301–1(b) will no longer be 

required. 

III. 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 any new 

DFARS solicitation provisions or 

contract clauses. It does not impact any 

existing solicitation provisions or 

contract clauses or their applicability to 

contracts valued at or below the 

simplified acquisition threshold or for 

commercial items, including 

commercially available off-the-shelf 

items. 

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. 

V. 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 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. 

VI. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because this final 

rule does not constitute a significant 

DFARS revision within the meaning of 

FAR 1.501–1, and 41 U.S.C. 1707 does 

not require publication for public 

comment. 

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 225 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR part 225 is 

amended as follows: 

PART 225—FOREIGN ACQUISITION 

■ 1. The authority citation for 48 CFR 

part 225 continues to read as follows: 

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

chapter 1. 

225.7301–1 [Removed and Reserved] 

■ 2. Remove and reserve section 

225.7301–1. 

[FR Doc. 2021–18342 Filed 8–27–21; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 541 

[Docket No. NHTSA–2019–0056] 

RIN 2127–AM24 

Federal Motor Vehicle Theft Prevention 

Standard; Final Listing of 2019 Light 

Duty Truck Lines Subject to the 

Requirements of This Standard and 

Exempted Vehicle Lines for Model Year 

2019 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), U.S. 

Department of Transportation. 

ACTION: Final rule. 

SUMMARY: This final rule announces 

NHTSA’s determination that there are 

no new model year 2019 light duty 

truck lines subject to the parts-marking 

requirements of the Federal motor 

vehicle theft prevention standard. The 

agency determined no new models were 

high-theft or had major parts that are 

interchangeable with a majority of the 

covered major parts of passenger car or 

multipurpose passenger vehicle lines. 

This final rule also identifies those 


khammond on DSKJM1Z7X2PROD with RULES