[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Rules and Regulations]
[Pages 5903-5904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01020]



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 Rules and Regulations
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
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  Federal Register / Vol. 85, No. 22 / Monday, February 3, 2020 / Rules 
and Regulations  

[[Page 5903]]



GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-82

[FMR Case 2016-102-3; Docket 2016-0019; Sequence No. 1]
RIN 3090-AJ76


Federal Management Regulation (FMR); Utility Services

AGENCY: Office of Government-wide Policy (OGP), General Services 
Administration (GSA).

ACTION: Final rule.

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SUMMARY: GSA is issuing a final rule to amend the Federal Management 
Regulation (FMR) part regarding utility services. The rule clarifies 
the authority an agency must have in order to procure utility services 
and describes in detail agencies' responsibilities concerning the 
procurement of such services. To better direct agencies that operate 
under a utility service delegation from GSA, the rule adds a reference 
to the section of the Federal Acquisition Regulation (FAR) that 
addresses the acquisition of utility services and other procurement 
guidance. Additionally, the rule clarifies responsibilities for the 
Department of Defense and the Department of Energy for compliance.

DATES: Effective Date: March 4, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Chris Coneeney, Director, Real 
Property, Office of Government-wide Policy, at 202-208-2956, or email 
at [email protected] for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FMR Case 2016-102-3.

SUPPLEMENTARY INFORMATION:

I. Background

    A proposed rule was published in the Federal Register on August 13, 
2019 (84 FR 39994). The proposed rule expanded ``Subpart A--General 
Provisions'' to better align with other parts of the FMR and clarified 
language in subpart B regarding agency authority and responsibilities. 
None of the proposed changes elicited any objections during the public 
comment period. In fact, only one public comment was received in 
response to the proposed rule, which was not germane. As a result, 
there were no changes made to the final rule from the published 
proposed rule.
    This final rule amends the FMR to both clarify the scope of this 
part and the authority an agency must have to procure utility services 
by pointing the reader to the appropriate parts of the FAR that relate 
to the acquisition of utility services. It also clarifies the 
responsibilities of agencies, the Department of Defense, and the 
Department of Energy for compliance.

II. 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 rule is a significant regulatory action and was subject to review 
under Section 6(b) of E.O. 12866. It is not a major rule under 5 U.S.C. 
804.

III. Executive Order 13771

    This final rule is not subject to the requirements of E.O. 13771 
(82 FR 9339, February 3, 2017) because it is related to agency 
organization, management, or personnel.

IV. Regulatory Flexibility Act

    This final rule will not 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. This final rule is 
also exempt from the Regulatory Flexibility Act pursuant to 5 U.S.C. 
553(a)(2) because it applies to agency management.

V. 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).

VI. Small Business Regulatory Enforcement Fairness Act

    This final rule is exempt from Congressional review under 5 U.S.C. 
801 since it relates solely to agency management and personnel.

List of Subjects in 41 CFR Part 102-82

    Federal buildings and facilities, Government property management, 
Rates and fares, Utilities.

    Dated: January 15, 2020.
Emily W. Murphy,
Administrator of General Services.

0
For the reasons set forth in the preamble, GSA is revising 41 CFR part 
102-82 to read as follows:

PART 102-82--UTILITY SERVICES

Subpart A--General Provisions
Sec.
102-82.5 What does this part cover?
102-82.10 What are the governing authorities for this part?
102-82.15 Who must comply with the provisions of this part?
102-82.20 To whom do ``we,'' ``you,'' and their variants refer?
102-82.25 How do we request a deviation from the provisions of this 
part?
Subpart B--Utility Services
102-82.30 What authority must my agency have in order to procure 
utility service(s)?
102-82.35 Can Executive agencies enter into contracts for utility 
services?
102-82.40 What are Executive agencies' rate intervention 
responsibilities?

    Authority: 40 U.S.C. 121(c) and 40 U.S.C. 501.

Subpart A--General Provisions


Sec.  102-82.5  What does this part cover?

    This part covers the procurement and management of public utility 
services. It does not cover utilities that are provided as part of a 
lease. For more information on the procurement of utility services 
refer to Federal Acquisition Regulation (FAR) in 48 CFR part 41. For 
more information on the management of Utility Services, refer to 40 
U.S.C. 501.


Sec.  102-82.10  What are the governing authorities for this part?

    The authorities for the regulations in this part are:
    (a) 40 U.S.C. 121(c); and

[[Page 5904]]

    (b) 40 U.S.C. 501.


Sec.  102-82.15  Who must comply with the provisions of this part?

    All Executive agencies procuring, managing, or supplying utility 
services under Title 40 of the United States Code, including GSA's 
Public Buildings Service (PBS), Department of Defense, Department of 
Energy, and those agencies operating under, or subject to, the 
authorities of the Administrator of General Services must comply with 
the provisions of this part. For information on a utility services 
delegation of authority, refer to Sec.  102-72.100 of this chapter.


Sec.  102-82.20  To whom do ``we,'' ``you,'' and their variants refer?

    Unless otherwise indicated, use of pronouns ``we,'' ``you,'' and 
their variants throughout this part refer to an Executive agency. Refer 
to part 102-71 of this chapter for the definition of Executive agency.


Sec.  102-82.25  How do we request a deviation from the provisions of 
this part?

    Refer to Sec. Sec.  102-2.60 through 102-2.110 of this chapter for 
information on how to obtain a deviation from this part.

Subpart B--Utility Services


Sec.  102-82.30  What authority must my agency have in order to procure 
utility service(s)?

    If you do not have a delegation of authority issued by GSA to 
procure utility services, or independent authority for such 
procurements, you cannot procure utility services. The Secretary of 
Defense is independently authorized to take such actions without a 
delegation from GSA, when the Secretary determines such actions to be 
in the best interests of national security. For more information on a 
utility services delegation of authority refer to Sec. Sec.  102-72.100 
and 102-72.105 of this chapter.


Sec.  102-82.35  Can Executive agencies enter into contracts for 
utility services?

    Executive agencies, operating under a utility services delegation 
from GSA, or the Secretary of Defense, when the Secretary determines it 
to be in the best interests of national security, may enter into 
contracts for utility services (such as commodities and utility rebate 
programs), pursuant to the terms and conditions contained in the 
delegation and in accordance with FAR part 41. FAR part 41 requires 
that agencies provide or procure from sources of supply that are the 
most advantageous to the Federal Government in terms of economy, 
efficiency, reliability, or quality of service; while 40 U.S.C. 501(c) 
requires that agencies provide or procure such services with due regard 
to the mission responsibilities of the agencies concerned. For 
information on utility services delegation of authority refer to part 
102-72 of this chapter. For additional information on contracts for 
utility services, search on the topics Utility or Energy on the 
Acquisition Gateway, http://www.gsa.gov.


Sec.  102-82.40  What are Executive agencies' rate intervention 
responsibilities?

    Unless otherwise authorized by law, absent a delegation from GSA, 
Executive agencies must not engage in the types of representation 
referenced at 40 U.S.C. 501(c), Services for Executive agencies. The 
Secretary of Defense is independently authorized to take such actions 
without a delegation from GSA, when the Secretary determines such 
actions to be in the best interests of national security. Refer to part 
102-71 of this chapter for definitions of Executive agencies and state. 
For information on delegation of authority refer to part 102-72 of this 
chapter.

[FR Doc. 2020-01020 Filed 1-31-20; 8:45 am]
 BILLING CODE 6820-14-P