[Federal Register Volume 70, Number 34 (Tuesday, February 22, 2005)]
[Proposed Rules]
[Pages 8565-8566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3196]


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DEPARTMENT OF DEFENSE

48 CFR Part 241

[DFARS Case 2003-D096]


Defense Federal Acquisition Regulation Supplement; Utility Rates 
Established by Regulatory Bodies

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to update text pertaining to utility 
rates established by independent and nonindependent regulatory bodies. 
This proposed rule is a result of a transformation initiative 
undertaken by DoD to dramatically change the purpose and content of the 
DFARS.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before April 25, 2005, to be considered 
in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D096, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for 
submitting comments.
     E-mail: [email protected]. Include DFARS Case 2003-D096 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations Council, Attn: Ms. 
Michele Peterson, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, (703) 602-0311.

SUPPLEMENTARY INFORMATION: 

A. Background

    DFARS Transformation is a major DoD initiative to dramatically 
change the purpose and content of the DFARS. The objective is to 
improve the efficiency and effectiveness of the acquisition process, 
while allowing the acquisition workforce the flexibility to innovate. 
The transformed DFARS will contain only requirements of law, DoD-wide 
policies, delegations of FAR authorities, deviations from FAR 
requirements, and policies/procedures that have a significant effect 
beyond the internal operating procedures of DoD or a significant cost 
or administrative impact on contractors or offerors. Additional 
information on the DFARS Transformation initiative is available at 
http://www.acq.osd.mil/dpap/dfars/transf.htm.
    This proposed rule is a result of the DFARS Transformation 
initiative. The proposed changes--
     Revise DFARS 241.201 to clarify that utility rates 
established by independent regulatory bodies may be relied upon as fair 
and reasonable; and
     Add DFARS 241.501 to clarify requirements for use of 
contract clauses addressing changes in rates for regulated and 
unregulated utility services.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the proposed 
rule contains clarifying amendments, with no significant change to 
contracting policy. Therefore, DoD has not performed an initial 
regulatory flexibility analysis. DoD invites comments from small 
businesses and other interested parties. DoD also will consider 
comments from small entities concerning the affected DFARS subparts in 
accordance with 5 U.S.C. 610. Such comments should be

[[Page 8566]]

submitted separately and should cite DFARS Case 2003-D096.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Part 241

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

    Therefore, DoD proposes to amend 48 CFR part 241 as follows:
    1. The authority citation for 48 CFR part 241 continues to read as 
follows:

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

PART 241--ACQUISITION OF UTILITY SERVICES

    2. Section 241.201 is revised to read as follows:


241.201  Policy.

    (1) DoD, as a matter of comity, generally complies with the current 
regulations, practices and decisions of independent regulatory bodies. 
This policy does not extend to nonindependent regulatory bodies.
    (2) Purchases of utility services outside the United States may 
use--
    (i) Formats and technical provisions consistent with local 
practice; and
    (ii) Dual language forms and contracts.
    (3) Rates established by an independent regulatory body--
    (i) Are considered ``prices set by law or regulation'';
    (ii) Are sufficient to set prices without obtaining cost or pricing 
data (see FAR subpart 15.4); and
    (iii) Are a valid basis on which prices can be determined fair and 
reasonable.
    (4) Compliance with the regulations, practices, and decisions of 
independent regulatory bodies as a matter of comity is not a substitute 
for the procedures at FAR 41.202(a).
    3. Section 241.501 is added to read as follows:


241.501  Solicitation provision and contract clauses.

    (d)(1) Use a clause substantially the same as the clause at FAR 
52.241-7, Change in Rates or Terms and Conditions of Service for 
Regulated Services, when the utility services to be provided are 
subject to an independent regulatory body.
    (2) Use a clause substantially the same as the clause at FAR 
52.241-8, Change in Rates or Terms and Conditions of Service for 
Unregulated Services, when the utility services to be provided are not 
subject to a regulatory body or are subject to a nonindependent 
regulatory body.

[FR Doc. 05-3196 Filed 2-18-05; 8:45 am]
BILLING CODE 5001-08-P