[Federal Register: June 21, 2010 (Volume 75, Number 118)]
[Rules and Regulations]               
[Page 34942-34943]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn10-12]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 217 and 241

RIN 0750-AG48

 
Defense Federal Acquisition Regulation Supplement; Multiyear 
Contract Authority for Electricity From Renewable Energy Sources (DFARS 
Case 2008-D006)

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

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule to implement section 828 of the 
National Defense Authorization Act for Fiscal Year 2008. Section 828 
authorizes the Secretary of Defense to enter into a contract for a 
period not to exceed 10 years for the purchase of electricity from 
sources of renewable energy.

DATES: Effective Date: June 21, 2010.
    Comment Date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before August 20, 2010, to be 
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2008-D006 by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: dfars@osd.mil. Include DFARS Case 2008-D006 in the 
subject line of the message.
     Fax: 703-602-0350.
     Mail: Defense Acquisition Regulations System, Attn: 
Cassandra Freeman, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060
    All comments received will be posted to http://www.regulations.gov, 
including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Cassandra Freeman, 703-602-8383. 
Please cite DFARS Case 2008-D006.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule implements section 828 of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). It amends 
DFARS parts 217 and 241 to authorize the Department of Defense to enter 
into a contract for a period not to exceed 10 years for the purchase of 
electricity from sources of renewable energy, as that term is defined 
in section 203(b)(2) of the Energy Policy Act of 2005 (42 U.S.C. 
15852(b)(2)). DoD may exercise this authority to enter into a contract 
for a period in excess of five years only if the head of the 
contracting activity determines, on the basis of a business case 
analysis prepared by DoD, that--
    (1) The proposed purchase of electricity under such contract is 
cost effective; and
    (2) It would not be possible to purchase electricity from the 
source in an economical manner without the use of a contract for a 
period in excess of five years.
    This rule was subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 604. The analysis is summarized below and a 
copy may be obtained from the point of contact specified herein. There 
are a very limited number of small businesses engaged in the sale of 
energy-related services to include the sale of renewable energy. Those 
small businesses that engage in energy-related activities tend to have 
more than one area of competency, such as fossil fuel electric power, 
distribution of electric power, or other electric power generation, 
etc. With the potential overlap of competencies, it is very likely that 
a small business may have more than one of these competencies, thereby 
reducing the number of small businesses in these areas. The market for 
renewable fuels is highly volatile and does not have the predictability 
as compared to other fuel markets. Renewable energy and alternative 
fuel projects are capital-intensive investments, and involve the 
construction of production facilities which provides limitations to 
small entities. At this time, DoD is unable to estimate the number of 
small entities to which this rule will apply. DoD invites comments from 
small business concerns and other interested parties on the expected 
impact of this rule on small entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2008-D006) in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 96-511) does not apply because 
the

[[Page 34943]]

rule does not impose additional information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to publish an 
interim rule prior to affording the public an opportunity to comment. 
This interim rule authorizes and establishes conditions under which the 
Department of Defense may enter into a contract for a period not to 
exceed 10 years for the purchase of electricity from sources of 
renewable energy, pursuant to section 828 of the National Defense 
Authorization Act for Fiscal Year 2008. It is necessary to publish this 
rule prior to obtaining public comments because the statute became 
effective upon enactment, and it is imperative that DoD contracting 
officers be aware of the conditions under which DoD may enter into such 
contracts to ensure that they are in compliance with the requirements 
of the Act. However, DoD will consider public comments received in 
response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 217 and 241

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 217 and 241 are amended as follows:
0
1. The authority citation for 48 CFR parts 217 and 241 continues to 
read as follows:

    Authority:  41 U.S.C. 421 and 48 CFR chapter 1.

PART 217--SPECIAL CONTRACTING METHODS

0
2. Section 217.175 is added to read as follows:


217.175  Multiyear contracts for electricity from renewable energy 
sources.

    (a) The head of the contracting activity may enter into a contract 
for a period not to exceed 10 years for the purchase of electricity 
from sources of renewable energy, as that term is defined in section 
203(b)(2) of the Energy Policy Act of 2005 (42 U.S.C. 15852(b)(2)).
    (b) Limitations. The head of the contracting activity may exercise 
the authority in paragraph (a) of this section to enter into a contract 
for a period in excess of five years only if the head of the 
contracting activity determines, on the basis of a business case 
analysis (see PGI 217.1, Supplemental Information TAB, for a business 
case analysis template and guidance) prepared by the requiring 
activity, that--
    (1) The proposed purchase of electricity under such contract is 
cost effective; and
    (2) It would not be possible to purchase electricity from the 
source in an economical manner without the use of a contract for a 
period in excess of five years.
    (c) Nothing in this section shall be construed to preclude the DoD 
from using other multiyear contracting authority of DoD to purchase 
renewable energy.

PART 241--ACQUISITION OF UTILITY SERVICES

0
3. Section 241.103 is amended by redesignating existing paragraph (2) 
as paragraph (3); and by adding new paragraph (2) to read as follows:


241.103  Statutory and delegated authority.

* * * * *
    (2) See 217.175 for authority to enter into multiyear contracts for 
electricity from renewable energy sources.
* * * * *
[FR Doc. 2010-14938 Filed 6-18-10; 8:45 am]
BILLING CODE 5001-08-P