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Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Rules and Regulations
harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6b of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

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VI. Congressional Review Act As required by the Congressional Review Act 5 U.S.C. 801808 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 in the Office of Management and Budget 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 FRFA has been prepared consistent with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is summarized as follows:
The final rule is necessary to revise the Defense Federal Acquisition Regulation Supplement DFARS to implement a statute that prohibits contracts for the use of energy sourced inside the Russian Federation for military installations in Europe.
The objective for and the legal basis for the rule is section 2821 of the National Defense Authorization Act NDAA for Fiscal Year FY 2020, which prohibits use of energy sourced from inside the Russian Federation in an effort to promote energy security in Europe. The prohibition applies to all forms of energy furnished to a covered military installation, as that term is defined in the statute, and only to main operating bases as defined and identified by DoD.
No public comments were received in response to the initial regulatory flexibility analysis.
According to data obtained from the Federal Procurement Data System FPDS for fiscal years 2017 through 2019 for awards coded for product service code S111 Utilities-Gas with locations in Europe, 108 awards per year were made on average over the three fiscal years, with an average of 3
awards to unique entities that were other than small businesses. The awardees were listed as foreign contractor consolidated reporting, which is used to report procurement actions awarded to contractors located
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outside the United States providing utilities goods or services when a unique entity identifier is not available.
When a generic entity identifier is used to report these actions, FPDS only allows contracting officers to select other than small business as the contracting officers determination of business size. FPDS allows contracting officers to aggregate awards and report one record that includes multiple awards, which masks the identity of the entity. Consequently, reporting awards in this manner is likely to result in an undercount of the number of unique entities, as there is no data available to determine the number of entities or whether the entities are small or other than small. Based on this analysis, DoD
estimates it is unlikely that an American small entity would be providing these utility services in Europe. Therefore, DoD does not expect this rule to impact small entities.
This rule does not include any new reporting, recordkeeping, or other compliance requirements for small entities.
DoD has not identified any alternative approaches to the rule that would meet the requirements of the statute.
VIII. Paperwork Reduction Act This 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, 225 and 252
Government procurement.
Jennifer D. Johnson, Editor/Publisher, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 212, 225, and 252 are amended as follows:
1. The authority citation for 48 CFR
parts 212, 225, and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.

PART 212ACQUISITION OF
COMMERCIAL ITEMS
2. Amend section 212.301 by adding paragraphs fixGG and HH to read as follows:

212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

f
ix
GG Use the provision at 252.225
7053, Representation Regarding
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Prohibition on Use of Certain Energy Sourced from Inside the Russian Federation, as prescribed in 225.7019
4a, to comply with section 2821 of the National Defense Authorization Act for Fiscal Year 2020 Pub. L. 11692.
HH Use the clause at 252.2257054, Prohibition on Use of Certain Energy Sourced from Inside the Russian Federation, as prescribed in 225.7019
4b, to comply with section 2821 of the National Defense Authorization Act for Fiscal Year 2020 Pub. L. 11692.

PART 225FOREIGN ACQUISITION
3. Add sections 225.7019, 225.70191, 225.70192, 225.70193, and 225.7019
4 to subpart 225.70 to read as follows:

Sec.
225.7019 Prohibition on use of certain energy sourced from inside the Russian Federation.
225.70191 Definitions.
225.70192 Prohibition.
225.70193 Waiver.
225.70194 Solicitation provision and contract clause.

225.7019 Prohibition on use of certain energy sourced from inside the Russian Federation.
225.70191

Definitions.

As used in this section 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.
225.70192

Prohibition.

In accordance with section 2821 of the National Defense Authorization Act for Fiscal Year 2020 Pub. L. 11692, 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. The prohibition a Applies to all forms of energy that are furnished to a covered military installation; and b Does not apply to energy converted by a third party into another form of energy and not directly
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