[Federal Register Volume 79, Number 121 (Tuesday, June 24, 2014)]
[Proposed Rules]
[Pages 35713-35715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14594]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
RIN 0750-AI31
Defense Federal Acquisition Regulation Supplement: Defense
Contractors Performing Private Security Functions (DFARS Case 2014-
D008)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to address DoD-unique requirements for
defense contractors performing private security functions outside the
United States.
DATES: Comment date: Comments on the proposed rule should be submitted
in writing to the address shown below on or before August 25, 2014, to
be considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2014-D008, using
any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2012-D008''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2014-D008.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2014-D008'' on your attached document.
[cir] Email: [email protected]. Include DFARS Case 2014-D008 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Jennifer Hawes, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
[[Page 35714]]
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Hawes, Defense
Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6115.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to prescribe a clause for use
in solicitations and contracts, including solicitations and contracts
for the acquisition of commercial items, when defense contractors are
performing private security functions outside the United States.
DoD Instruction 3020.50, Private Security Contractors, was
originally published on July 22, 2009, pursuant to section 862 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008, as
amended by section 853 of the NDAA for FY 2009. Change 1 of the
Instruction was published on August 1, 2011, and reflects additional
requirements levied under section 832 of the NDAA for FY 2008. DoD
requirements encompass requirements set forth in 32 CFR 159, however
they are broader than requirements set forth in FAR 25.302-3, and its
implementing clause, 52.225-26, Contractors Performing Private Security
Functions Outside the United States. This proposed rule will address
these broader requirements by ensuring coverage in--
Contingency operations;
Combat operations, as designated by the Secretary of
Defense;
Other significant military operations, as designated by
the Secretary of Defense, and only upon agreement of the Secretary of
Defense and the Secretary of State;
Humanitarian or peace operations; and
Other military operations or military exercises, when
designated by the Combatant Commander.
This rule provides DoD-unique requirements for implementation and
supplementation of the FAR requirements, i.e., use of the Synchronized
Predeployment and Operational Tracker (SPOT) System and compliance with
ANSI/ASIS PSC.1-2012, American National Standard, Management System for
Quality of Private Security Operations--Requirements with Guidance.
II. Discussion and Analysis
The proposed rule would add a new section, DFARS 225.302, titled
``Contractors performing private security functions outside the United
States,'' which provides a definition for ``peace operation'' and adds
a prescription for the new proposed clause. This clause is also added
to the list at DFARS 212.301 of clauses and provisions for the
acquisition of commercial items.
The new proposed clause DFARS 252.225-7039, Defense Contractors
Performing Private Security Functions, requires contractors to--
Register in the Synchronized Predeployment and Operational
Tracker (SPOT) system all weapons, armored vehicles, helicopters, and
other vehicles used or operated by personnel performing private
security functions; and
Comply with ANSI/ASIS PSC.1-2012, American National
Standard, Management System for Quality of Private Security
Operations--Requirements with Guidance.
III. 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 is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
IV. 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. However, DoD has
prepared an Initial Regulatory Flexibility Analysis, which is
summarized as follows:
The reason for this proposed rule is to address DoD-unique
requirements relating to the implementation of the requirements at FAR
52.225-26, Contractors Performing Private Security Functions Outside
the United States. FAR 52.225-26 implements section 862 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 (Pub. L.
110-181 and sections 831 and 832 of the NDAA for FY 2011 (Pub. L. 111-
383), and the MOU signed by DoD, State, and USAID. This rule provides
DoD-unique requirements for implementation and supplementation of the
FAR requirements, i.e., use of the Synchronized Predeployment and
Operational Tracker (SPOT) System and compliance with ANSI/ASIS PSC.1-
2012, American National Standard, Management System for Quality of
Private Security Operations--Requirements with Guidance.
In FY 2010, DoD awarded 1,051 contracts for performance in
Afghanistan. Of those actions, 231 contracts were awarded to small
business firms. It is not known how many of those contracts involved
the requirements for contractor personnel to perform private security
functions. As DoD personnel exit these areas, the total number of
contracts will decrease.
The impact on small business firms will be minor because these are
not new requirements. The requirement to enter data on weapons, armored
vehicles, helicopters, and other military vehicles into SPOT was in the
DFARS until the registration requirement was transitioned into the FAR
in July 2013 (but without specifying use of SPOT). This new DFARS
clause specifies that the system to use is SPOT. The DFARS Procedures,
Guidance, and Information (PGI) had already provided in a checklist at
225.7401 that contracting officers shall incorporate and require
compliance with the standard ANSI/ASIS PSC.1-2012 if the acquisition
requires performance of private security functions.
This rule does not add new reporting, recordkeeping, or other
compliance requirements.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
DoD has not identified any alternatives that would lessen the
already minimal burden on small entities and still meet the objectives
of the rule.
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 the 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 2014-D008), in
correspondence.
V. Paperwork Reduction Act
The information collection requirements in this rule that require
the approval of the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35) are already covered by OMB
Clearance Number 0704-0460, Synchronized Predeployment and
[[Page 35715]]
Operational Tracker (SPOT) System, which is approved through August 31,
2016, for 150,000 burden hours.
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Amy G. Williams,
Deputy, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 225, and 252 are proposed to be
amended as follows:
0
1. The authority citation for parts 212, 225, and 252 continues to read
as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. In section 212.301, redesignate paragraphs (f)(xlv) through (lxx) as
paragraphs (f)(xlvi) through (lxxi) and add a new paragraph (f)(xlv) to
read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(xlv) Use the clause at 252.225-7039, Defense Contractors
Performing Private Security Functions Outside the United States, as
prescribed in 225.302-6, to comply with section 2 of Pub. L. 110-181,
as amended.
* * * * *
PART 225--FOREIGN ACQUISITION
0
3. Add sections 225.302, 225.302-2, and 225.302-6 to subpart 225.3 to
read as follows:
225.302 Contractors performing private security functions outside the
United States.
225.302-2 Definitions.
Peace operation, as used in this section, means a military mission
to contain conflict, redress the peace, and shape the environment to
support reconciliation and rebuilding and facilitate the transition to
legitimate governance.
225.302-6 Contract clause.
Use the clause at 252.225-7039, Defense Contractors Performing
Private Security Functions Outside the United States, in solicitations
and contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, when private
security functions are to be performed outside the United States in--
(1) Contingency operations;
(2) Combat operations, as designated by the Secretary of Defense;
(3) Other significant military operations (as defined in 32 CFR
part 159), designated by the Secretary of Defense, and only upon
agreement of the Secretary of Defense and the Secretary of State;
(4) Humanitarian or peace operations; or
(5) Other military operations or military exercises, when
designated by the Combatant Commander.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Add section 252.225-7039 to read as follows:
252.225-7039 Defense Contractors Performing Private Security Functions
Outside the United States.
As prescribed in 225.302-6, insert the following clause:
DEFENSE CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS OUTSIDE THE
UNITED STATES (DATE)
(a) Definition. Peace operation, as used in this clause, means a
military mission to contain conflict, redress the peace, and shape
the environment to support reconciliation and rebuilding and
facilitate the transition to legitimate governance.
(b) Requirements. The Contractor shall--
(1) Register in the Synchronized Predeployment and Operational
Tracker (SPOT)--
(i) Weapons to be carried by or available to be used by
personnel performing private security functions; and
(ii) Armored vehicles, helicopters, and other vehicles operated
by personnel performing private security functions; and
(2) Comply with ANSI/ASIS PSC.1-2012, American National
Standard, Management System for Quality of Private Security Company
Operations--Requirements with Guidance (located at www.acq.osd.mil/log/PS/p_vault/item_1997-PSC_1_STD.PDF).
(c) Subcontracts. The Contractor shall include the substance of
this clause, including paragraph (b) of this clause, in
subcontracts, including subcontracts for commercial items, when
private security functions will be performed outside the United
States in areas of--
(1) Contingency operations;
(2) Combat operations, as designated by the Secretary of
Defense;
(3) Other significant military operations (as defined in 32 CFR
part 159), designated by the Secretary of Defense upon agreement of
the Secretary of State;
(4) Humanitarian or peace operations; or
(5) Other military operations or military exercises, when
designated by the Combatant Commander.
(End of clause)
[FR Doc. 2014-14594 Filed 6-23-14; 8:45 am]
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