Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is adopting as final, with changes, an interim rule that implements section 884 of the National Defense Authorization Act for Fiscal Year 2009. Section 884 requires DoD to ensure that, to the maximum extent practicable, in all carriage contracts in which a fuel-related adjustment is provided for, any fuel-related adjustment is passed through to the person who bears the cost of the fuel to which the adjustment relates.
Ms. Mary Overstreet, Defense Acquisition Regulations System, OUSD (AT&L)DPAP(DARS), 3060 Defense Pentagon, Room 3B855, Washington, DC 20301–3060. Telephone 703–602–0311; facsimile 703–602–0350. Please cite DFARS Case 2008–D040.
DoD published an interim rule at 74 FR 37652 on July 29, 2009, to implement section 884 of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417). Section 884 requires DoD to ensure that, to the maximum extent practicable, in all carriage contracts for which a fuel-related adjustment is provided, any fuel-related adjustment is passed through to the person who bears the cost of the fuel to which the adjustment relates. Section 884 also applies to commercial contracts for carriage.
Two respondents submitted comments on the interim rule. A discussion of the comments received and the changes to the rule as a result of these comments is provided below:
1.
2.
“(a) Except in instances where doing so would be impracticable, or pose a disproportionate administrative burden, the contractor shall pass through any motor carrier fuel-related surcharge adjustments to the person, corporation, or entity that directly bears the cost of fuel for shipment(s) transported under this contract.
(i) Examples of impracticable instances may include but not be limited to, spot bids, one-time-only bids, or other services that are provided within 30 days of the time service was ordered.”
This regulatory action was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD does not expect this final 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,
This final rule amends the DFARS to implement section 884 of the National Defense Authorization Act for Fiscal Year 2009. Section 884 requires DoD to ensure that, to the maximum extent practicable, in all carriage contracts in which a fuel-related adjustment is provided for, any fuel-related adjustment is passed through to the person who bears the cost of the fuel to which the adjustment relates. The objective of the rule is to establish a DoD contract clause with appropriate flow-down requirements addressing the statutory requirement for fuel-related contract adjustments to be passed to the entity bearing the cost of the fuel. The clause is to be inserted in all contracts with motor carriers, brokers, or freight forwarders providing or arranging truck transportation services that provide for a fuel-related adjustment.
An interim rule was published on July 29, 2009, at 74 FR 37652 to which two responses were received. The responses indicated that current commercial marketplace practices already reflect the requirement to flow down any fuel surcharge to the party that incurs the cost of the fuel. Therefore, any impact of this rule on small entities is expected to be minimal.
The Paperwork Reduction Act does not apply because this rule does not impose any new information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
41 U.S.C. 421 and 48 CFR chapter 1.
Use the clause at 252.247–7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer, in solicitations and contracts for carriage in which a motor carrier, broker, or freight forwarder will provide or arrange truck transportation services that provide for a fuel-related adjustment.
As prescribed in 247.207, use the following clause:
(a) This clause implements section 884 of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417).
(b) Unless an exception is authorized by the Contracting Officer, the Contractor shall pass through any motor carrier fuel-related surcharge adjustments to the person, corporation, or entity that directly bears the cost of fuel for shipment(s) transported under this contract.
(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts with motor carriers, brokers, or freight forwarders.