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[Federal Register: October 29, 2010 (Volume 75, Number 209)]
[Rules and Regulations]               
[Page 66683-66686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc10-15]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 246 and 252

RIN 0750-AG73

 
Defense Federal Acquisition Regulation Supplement; Safety of 
Facilities, Infrastructure, and Equipment for Military Operations 
(DFARS Case 2009-D029)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement section 807 of 
the National Defense Authorization Act of 2010. Section 807 requires 
that facilities, infrastructure, and equipment that are intended for 
use by military or civilian personnel of the Department of Defense 
(DoD), in current or future military operations, should be inspected 
for safety and habitability prior to use, and that such facilities 
should be brought into compliance with generally accepted standards for 
the safety and health of personnel to the maximum extent practicable 
consistent with the requirements of military operations and the best 
interests of DoD to minimize the safety and health risk posed to such 
personnel.

DATES: Effective date: October 29, 2010.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before December 28, 2010, to 
be considered in the formation of the final rule.

ADDRESSES: Submit comments, identified by DFARS Case 2008-D029, using 
any of the following methods:
    Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``DFARS Case 2009-D029'' under the heading ``Enter keyword or ID'' and 
selecting ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``DFARS Case 2009-D029.'' Follow the instructions 
provided at the ``Submit

[[Page 66684]]

a Comment'' screen. Please include your name, company name (if any), 
and ``DFARS Case 2009-D029'' on your attached document.
    E-mail: dfars@osd.mil. Include DFARS Case 2008-D029 in the subject 
line of the message.
    Fax: 703-602-0350.
    Mail: Defense Acquisition Regulations System, Attn: Ms. Mary 
Overstreet, OUSD (AT&L) DPAP (DARS), Room 3B855, 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 http://www.regulations.gov approximately two to three days after submission to 
verify posting (except allow 30 days for posting of comments submitted 
by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Mary Overstreet, 703-602-0311.

SUPPLEMENTARY INFORMATION: 

I. Background

    This interim rule implements section 807 of the National Defense 
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), which was 
signed on October 28, 2009. Section 807 requires that--
     Each contract, including task or delivery orders, entered 
into for the construction, installation, repair, maintenance, or 
operation of facilities, infrastructure, and equipment for use by DoD 
military or civilian should be inspected for safety and habitability 
prior to use to minimize the safety and health risk posed to such 
personnel;
     The term ``generally accepted standards'' shall be defined 
with respect to fire protection, structural integrity, electrical 
systems, plumbing, water treatment, waste disposal, and 
telecommunications networks for the purposes of this section; and
     Exceptions and limitations shall be provided as may be 
needed to ensure that this section can be implemented in a manner that 
is consistent with the requirements of military operations and the best 
interests of the Department of Defense.
    DoD amended DFARS subpart 246.2, Contract Quality Requirements, to 
add section 246.270, Safety of Facilities, Infrastructure, and 
Equipment for Military Operations. Part 252 is amended to include a new 
contract clause, 252.246-7004, Safety of Facilities, Infrastructure, 
and Equipment for Military Operations.
    DFARS 246.270-1 provides for the scope to be limited to current or 
future military operations performed outside the United States, Guam, 
Puerto Rico, and the Virgin Islands.
    DFARS 246.270-2 provides for the rule to apply to each contract, 
including task and delivery orders, for construction, installation, 
repair, maintenance, or operation of facilities. This includes 
contracts for facilities, infrastructure, and equipment configured for 
occupancy, including but not limited to, existing host nation 
facilities, new construction, and relocatable buildings. Contracts will 
require compliance with the Unified Facilities Criteria (UFC) 1-200-01 
and its referenced standards to meet generally accepted standards for 
fire protection, structural integrity, electrical systems, plumbing, 
water treatment, waste disposal, and telecommunications networks. 
Facilities, infrastructure, and equipment shall be inspected prior to 
use for compliance with UFC 1-200-01 to ensure safety and habitability.
    DFARS 246.270-3 allows the combatant commander to waive compliance 
with any standards when compliance is impracticable under prevailing 
operational conditions.
    The new contract clause 252.246-7004, Safety of Facilities, 
Infrastructure, and Equipment for Military Operations, provides for use 
of the UFC 1-200-01 standards. The clause also provides for use of 
facilities that are constructed to standards equivalent to or more 
stringent than the UFC 1-200-01 standards based upon a written 
determination by the Contracting Officer with the concurrence of the 
relevant Discipline Working Group. The Discipline Working Group is 
defined in the clause. Section 807 is applicable to contracts for the 
acquisition of commercial items. Subpart 252.2, Text of Provisions and 
Clauses, is amended to add 252.246.7004, Safety of Facilities, 
Infrastructure, and Equipment for Military Operations, to 252.212-7001, 
Contract Terms and Conditions Required to Implement Statutes or 
Executive Orders Applicable to Defense Acquisition of Commercial Items, 
subparagraph (b)(22).
    Contracting officers are encouraged to include this rule in 
solicitations issued before the effective date, provided award occurs 
after the effective date. Contracting officers are also encouraged to 
apply this rule to the maximum extent practicable to existing 
contracts, consistent with FAR 1.108(d).

II. Executive Order 12866

    This rule is a significant regulatory action and, therefore, was 
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.

III. Regulatory Flexibility Act

    DoD has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 603. A copy of the analysis may be obtained 
from the point of contact specified herein. The analysis is summarized 
as follows:
    The rule affects contractors with contracts, including task and 
delivery orders, in support of current and future military operations 
for construction, installation, repair, maintenance, or operation of 
facilities. This includes contracts for facilities, infrastructure, and 
equipment configured for occupancy, including but not limited to, 
existing host nation facilities, new construction, and relocatable 
buildings.
    Contracts will require compliance with the Unified Facilities 
Criteria (UFC) 1-200-01 to meet generally accepted standards for fire 
protection, structural integrity, electrical systems, plumbing, water 
treatment, waste disposal, and telecommunications networks. Facilities, 
infrastructure, and equipment shall be inspected prior to use to ensure 
safety and habitability.
    Military operations affected by this rule are those outside the 
United States, Guam, Puerto Rico, and the Virgin Islands.
    Contract support for recent military operations has been provided 
primarily by the Department of Army's LOGCAP contracts, which were 
awarded to large businesses. There are high costs associated with a 
company being able to perform in the geographic regions where most 
military operations are currently taking place. This makes it unlikely 
that a small business could afford to sustain the infrastructure 
required to perform these types of services in locations such as Iraq 
and Afghanistan. Small business preferential programs under FAR part 19 
may not apply to these contracts as they only apply to contracts placed 
in the United States or its outlying areas. At this time, DoD is unable 
to estimate the number of small entities to which this rule will apply. 
However, based on the above factors, the number of small business firms 
to which the rule would apply is expected to be minimal.
    DoD invites comments from small businesses 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 this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit comments separately 
and should cite 5

[[Page 66685]]

U.S.C. 610 (DFARS Case 2009-D029) in correspondence.

IV. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 96-511) does not apply because 
the rule does not impose additional information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

V. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD) that urgent and compelling circumstances exist to 
promulgate this interim rule without prior opportunity for public 
comments. This action is necessary because section 807 of the National 
Defense Authorization Act for Fiscal Year 2010 became effective 60 days 
after enactment, October 28, 2009.
    Section 807 requires that facilities, infrastructure, and equipment 
that are intended for use by military or civilian personnel of the 
Department of Defense (DoD), in current or future military operations, 
should be inspected for safety and habitability prior to use and that 
such facilities should be brought into compliance with generally 
accepted standards for the safety and health of personnel to the 
maximum extent practicable consistent with the requirements of military 
operations. Implementing language must be published as quickly as 
possible to minimize the safety and health risk posed to DoD military 
or civilian personnel during military operations.
    However, pursuant to 41 U.S.C. 418b and FAR 1.501-3, DoD will 
consider public comments received in response to this interim rule in 
the formation of the final rule.

List of Subjects in 48 CFR Parts 246 and 252

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 246 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 246 and 252 continues to 
read as follows:

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

PART 246--QUALITY ASSURANCE

0
2. Section 246.101 is added to read as follows:

246.101   Definitions.

    Discipline Working Group, as used in this subpart, is defined in 
the clause at 252.246-7004, Safety of Facilities, Infrastructure, and 
Equipment for Military Operations.

0
3. Section 246.270 is added to read as follows:

246.270  Safety of facilities, infrastructure, and equipment for 
military operations.

246.270-1  Scope.

    This section implements section 807 of the National Defense 
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84). It establishes 
policies and procedures intended to ensure the safety and habitability 
of facilities, infrastructure, and equipment acquired for use by DoD 
military or civilian personnel during military operations performed 
outside the United States, Guam, Puerto Rico, and the Virgin Islands.

246.270-2  Policy.

    (a) Contracts (including task and delivery orders) for the 
construction, installation, repair, maintenance, or operation of 
facilities, infrastructure, and equipment configured for occupancy, 
including but not limited to, existing host nation facilities, new 
construction, and relocatable buildings acquired for use by DoD 
military or civilian personnel, shall require a pre-occupancy safety 
and habitability inspection.
    (b) To minimize safety and health risks, each contract covered by 
this policy shall require the contractor's compliance with the Unified 
Facilities Criteria (UFC) 1-200-01 and its referenced standards for--
    (1) Fire protection;
    (2) Structural integrity;
    (3) Electrical systems;
    (4) Plumbing;
    (5) Water treatment;
    (6) Waste disposal; and
    (7) Telecommunications networks.
    (c) Existing host nation facilities constructed to standards 
equivalent to or more stringent than UFC 1-200-01 are acceptable upon a 
written determination of the acceptability of the standards by the 
Discipline Working Group.
    (d) Inspections to ensure compliance with UFC 1-200-01 standards 
shall be conducted in accordance with the inspection clause of the 
contract.

246.270-3  Exceptions.

    The combatant commander may waive compliance with the foregoing 
standards when it is impracticable to comply with such standards under 
prevailing operational conditions.

246.270-4  Contract clause.

    Use the clause at 252.246-7004, Safety of Facilities, 
Infrastructure, and Equipment for Military Operations, in solicitations 
and contracts for the construction, installation, repair, maintenance, 
or operation of facilities, infrastructure, or for equipment configured 
for occupancy, planned for use by DoD military or civilian personnel 
during military operations.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Section 252.212-7001 is amended as follows:
0
a. Redesignate paragraphs (b)(22), (b)(23), and (b)(24) as paragraphs 
(b)(23), (b)(24), and (b)(25), respectively;
0
b. Add new paragraph (b)(22) to read as follows:

252.212-7001  Contract Terms and Conditions Required To Implement 
Statutes or Executive Orders Applicable to Defense Acquisitions of 
Commercial Items.

* * * * *
    (b) * * *
    (22)------ 252.246-7004, Safety of Facilities, Infrastructure, and 
Equipment for Military Operations (OCT 2010) (Section 807 of Public Law 
111-84).
* * * * *

0
5. Section 252.246-7004 is added to read as follows:

252.246-7004  Safety of Facilities, Infrastructure, and Equipment for 
Military Operations.

    As prescribed in 246.270-4, use the following clause:

SAFETY OF FACILITIES, INFRASTRUCTURE, AND EQUIPMENT FOR MILITARY 
OPERATIONS (OCT 2010)

    (a) Definition. Discipline Working Group, as used in this 
clause, means representatives from the DoD Components, as defined in 
MIL-STD-3007F, who are responsible for the unification and 
maintenance of the Unified Facilities Criteria (UFC) documents for a 
particular discipline area.
    (b) The Contractor shall ensure, consistent with the 
requirements of the applicable inspection clause in this contract, 
that the facilities, infrastructure, and equipment acquired, 
constructed, installed, repaired, maintained, or operated under this 
contract comply with Unified Facilities Criteria (UFC) 1-200-01 
for--
    (1) Fire protection;
    (2) Structural integrity;
    (3) Electrical systems;
    (4) Plumbing;
    (5) Water treatment;
    (6) Waste disposal; and
    (7) Telecommunications networks.
    (c) The Contractor may apply a standard equivalent to or more 
stringent than UFC 1-

[[Page 66686]]

200-01 upon a written determination of the acceptability of the 
standard by the Contracting Officer with the concurrence of the 
relevant Discipline Working Group.

(End of clause)

[FR Doc. 2010-27305 Filed 10-28-10; 8:45 am]
BILLING CODE 5001-08-P
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