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[Federal Register Volume 79, Number 121 (Tuesday, June 24, 2014)]
[Proposed Rules]
[Pages 35713-35715]
From the Federal Register Online via the Government Printing 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: osd.dfars@mail.mil. 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]
BILLING CODE 5001-06-P
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