49650 Federal Register / Vol. 76, No. 155 / Thursday, August 11, 2011 / Rules and Regulations 

DEPARTMENT OF THE TREASURY 

Office of the Secretary 

31 CFR Part 10 

[TD 9527] 

RIN 1545–BH01 

Regulations Governing Practice Before 

the Internal Revenue Service; 

Correction 

AGENCY: Office of the Secretary, 

Treasury. 

ACTION: Correcting amendment. 

SUMMARY: This document contains 

amendments to the regulations 

governing practice before the Internal 

Revenue Service to correct errors in 

final regulations (TD 9527) that were 

published in the Federal Register on 

Friday, June 3, 2011. The regulations 

affect individuals who practice before 

the IRS and providers of continuing 

education programs. The regulations 

modify the rules governing of practice 

before the IRS and the standards with 

respect to tax returns. 

DATES: This correction is effective on 

August 11, 2011 and is applicable 

beginning August 2, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Matthew D. Lucey, (202) 622–4940 (not 

a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final regulation (TD 9527) that is 

the subject of this correction is under 

section 330 of Title 31 of the United 

States Code. 

Need for Correction 

As published on June 3, 2011, at 76 

FR 32286, TD 9527 contains errors that 

may prove to be misleading and is in 

need of clarification. 

List of Subjects in 31 CFR Part 10 

Accountants, Administrative practice 

and procedure, Lawyers, Reporting and 

recordkeeping requirements, Taxes. 

Correction of Publication 

Accordingly, 31 CFR part 10 is 

corrected by making the following 

correcting amendments: 

PART 10—PRACTICE BEFORE THE 

INTERNAL REVENUE SERVICE 

■ Paragraph 1. The authority citation 

for part 31 continues to read in part as 

follows: 

Authority: Sec. 3, 23 Stat. 258, secs. 2–12, 

60 Stat. 237 et seq.; 5 U.S.C. 301, 500, 551– 

559; 31 U.S.C. 321; 31 U.S.C. 330; Reorg. Plan 

No. 26 of 1950, 15 FR 4935, 64 Stat. 1280, 

3 CFR, 1949–1953 Comp., p. 1017. 

■ Par. 2. Section 10.5 is amended by 

revising paragraph (g) to read as follows: 

§ 10.5 Application to become an enrolled 

agent, enrolled retirement plan agent, or 

registered tax return preparer. 

* * * * * 

(g) Effective/applicability date. This 

section is applicable to applications 

received on or after August 2, 2011. 

■ Par. 3. Section 10.60 is amended by 

revising paragraphs (a) and (b) to read 

as follows: 

§ 10.60 Institution of proceeding. 

(a) Whenever it is determined that a 

practitioner (or employer, firm or other 

entity, if applicable) violated any 

provision of the laws governing practice 

before the Internal Revenue Service or 

the regulations in this part, the 

practitioner may be reprimanded or, in 

accordance with § 10.62, subject to a 

proceeding for sanctions described in 

§ 10.50. 

(b) Whenever a penalty has been 

assessed against an appraiser under the 

Internal Revenue Code and an 

appropriate officer or employee in an 

office established to enforce this part 

determines that the appraiser acted 

willfully, recklessly, or through gross 

incompetence with respect to the 

proscribed conduct, the appraiser may 

be reprimanded or, in accordance with 

§ 10.62, subject to a proceeding for 

disqualification. A proceeding for 

disqualification of an appraiser is 

instituted by the filing of a complaint, 

the contents of which are more fully 

described in § 10.62. 

* * * * * 

■ Par. 4. Section 10.69 is amended by 

revising paragraph (a) to read as follows: 

§ 10.69 Representation; ex parte 

communication. 

(a) Representation. (1) The Internal 

Revenue Service may be represented in 

proceedings under this part by an 

attorney or other employee of the 

Internal Revenue Service. An attorney 

or an employee of the Internal Revenue 

Service representing the Internal 

Revenue Service in a proceeding under 

this part may sign the complaint or any 

document required to be filed in the 

proceeding on behalf of the Internal 

Revenue Service. 

(2) A respondent may appear in 

person, be represented by a practitioner, 

or be represented by an attorney who 

has not filed a declaration with the 

Internal Revenue Service pursuant to 

§ 10.3. A practitioner or an attorney 

representing a respondent or proposed 

respondent may sign the answer or any 

document required to be filed in the 

proceeding on behalf of the respondent. 

* * * * * 

■ Par. 5. Section 10.90 is amended by 

revising paragraph (a)(6)(i) to read as 

follows: 

§ 10.90 Records. 

(a) * * * 

(6) * * * 

(i) Who have obtained a qualifying 

continuing education provider number; 

and 

* * * * * 

Treena V. Garrett, 

Federal Register Liaison, Publications and 

Regulations Branch, Legal Processing 

Division, Associate Chief Counsel, Procedure 

and Administration. 

[FR Doc. 2011–20380 Filed 8–10–11; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 159 

[DOD–2008–OS–0125/RIN 0790–AI38] 

Private Security Contractors (PSCs) 

Operating in Contingency Operations, 

Combat Operations or Other 

Significant Military Operations 

AGENCY: Office of the Under Secretary of 

Defense for Acquisition, Technology, 

and Logistics, DoD. 

ACTION: Final rule. 

SUMMARY: This Rule establishes policy, 

assigns responsibilities and provides 

procedures for the regulation of the 

selection, accountability, training, 

equipping, and conduct of personnel 

performing private security functions 

under a covered contract during 

contingency operations, combat 

operations or other significant military 

operations. It also assigns 

responsibilities and establishes 

procedures for incident reporting, use of 

and accountability for equipment, rules 

for the use of force, and a process for 

administrative action or the removal, as 

appropriate, of PSCs and PSC personnel. 

For the Department of Defense, this Rule 

supplements DoD Instruction 3020.41, 

‘‘Contractor Personnel Authorized to 

Accompany the U.S. Armed Forces,’’ 

which provides guidance for all DoD 

contractors operating in contingency 

operations. 

This Rule was published as an Interim 

Final Rule on July 17, 2009 because 

there was insufficient policy and 

guidance regulating the actions of DoD 

and other governmental PSCs and their 


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Federal Register / Vol. 76, No. 155 / Thursday, August 11, 2011 / Rules and Regulations 49651 

1Nothing in this Final Rule is intended to reflect 

the views of the DoD or the United States regarding 

the merits of any claim or defense that may be 

asserted by a private party in any pending or future 

litigation or disputes. 

movements in operational areas. This 

Rule ensures compliance with laws and 

regulations pertaining to Inherently 

Governmental functions, and ensures 

proper performance by armed 

contractors. 

DATES: Effective Date: This rule is 

effective September 12, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Chris Mayer, Director, Armed 

Contingency Contractor Policy and 

Programs, Office of the Deputy Assistant 

Secretary of Defense (Program Support), 

(571) 232–2509. 

SUPPLEMENTARY INFORMATION: The 

publication of this Rule is required to 

meet the mandate of Section 862 of the 

2008 National Defense Authorization 

Act (NDAA), as amended by Section 

813(b) of the 2010 NDAA and Section 

832 of the 2011 NDAA. DoD has 

determined that the updates 

implementing Section 832 of the 2011 

NDAA do not require additional public 

comment. These updates are in direct 

compliance with current statute, do not 

set a precedent in updating the interim 

final, and any delay in implementing 

these updates would be detrimental to 

U.S. security. 

Background 

This Final Rule 1 is required to meet 

the mandate of Section 862 of the FY 

2008 NDAA, as amended, which lays 

out two requirements: 

(i) That the Secretary of Defense, in 

coordination with the Secretary of State, 

shall prescribe regulations on the 

selection, training, equipping, and 

conduct of personnel performing private 

security functions under a covered 

contract in an area of combat operations 

or other significant military operations; 

and 

(ii) That the FAR shall be revised to 

require the insertion into each covered 

contract (or, in the case of a task order, 

the contract under which the task order 

is issued) of a contract clause addressing 

the selection, training, equipping, and 

conduct of personnel performing private 

security functions under such contract. 

This Final Rule meets requirement (i). 

There will be a separate and subsequent 

Federal Register action to meet 

requirement (ii) to update the FAR. On 

July 17, 2009, an Interim Final Rule (32 

CFR Part 159 DOD–2008–OS–125/RIN 

0790–AI38) was published and public 

comments were solicited. At the end of 

the comment period, we received 

comments from 9 respondents, 

including the American Bar 

Association, IPOA, NGO groups and 

members of the public. These comments 

are discussed below by topic. 

Comment: Extent of Delegation of 

Implementation Authority to Each 

Geographic Combatant Commander 

Response: We believe that it is 

appropriate for DoD to provide the 

Geographic Combatant Commanders 

with the requirements to be included in 

their respective guidance and 

procedures. Situations change 

significantly from one geographic region 

to another. The Geographic Combatant 

Commanders (GCC) must have the 

flexibility to apply the overarching 

policy, tailoring their guidance and 

procedures as necessary to meet the 

particular circumstances within their 

respective areas of responsibility at any 

particular time. This is consistent with 

the approach that we are currently 

taking in the CENTCOM Area Of 

Responsibility (AOR) without 

significant issue. 

We do not believe that differing or 

conflicting regulations will be adopted 

within a single AOR. The GCC will 

establish the overarching guidance and 

Subordinate Commanders (down to 

Joint Task Force level) will develop 

implementing instructions. Specific 

requirements will be made available to 

Private Security Contractors through the 

GCC Web site. 

Comment: Absence of Department-Wide 

Guidance 

Response: We believe that a decentralized approach is the most 

appropriate way to implement the 

requirements of Section 862 of the FY08 

NDAA. There is sufficient uniformity of 

guidance provided through policy, 

including this Rule and existing 

acquisition regulations. The intent of 

the policy is that all PSC personnel 

operating within the designated area are 

required to have the required training, 

not only those who are deploying. A 

FAR case has been opened to 

incorporate the required revisions based 

upon the publication of this Final Rule. 

Comment: Lack of Uniformity Across 

Organizations 

Response: Following publication of 

this Final Rule, these requirements will 

be added to the FAR and DFARS and 

subsequently incorporated into 

appropriate contracts. This will provide 

a basis for the management of PSC 

compliance. 

Comment: Chief of Mission Should Be 

Required to Opt Out of DoD PSC 

Processes 

Response: We believe that the 

arrangement set out in Section 159.4(c) 

is appropriate and meets the 

congressional intent of a consistent 

approach towards PSCs operating in 

combat operations or other significant 

military operations, across USG 

agencies. 

Comment: Any Procedures or Guidance 

Issued Under the Requirements of This 

Rule Should be Subject to an 

Appropriate Rule-Making with an 

Adequate Opportunity for Public 

Comment 

Response: The relevant provisions of 

this Final Rule will be implemented 

through military regulations and orders, 

in accordance with existing procedures. 

Comment: The Rule is Not Integrated 

with Standard Contracting Processes 

Response: The requirements 

associated with GCC guidance and 

procedures will be included in any 

solicitations and therefore potential 

bidders will be aware of GCC specific 

procedures prior to submitting their 

proposals. AOR specific procedures 

such as training requirements are 

required to be placed on GCC Web sites 

immediately after a declared 

contingency so that the requirements 

can get into the appropriate contracts as 

soon as possible. 

Comment: The Rule Should Fully 

Explain How DoD Determines a PSC 

Law of War Status 

Response: It is not the role of the Rule 

to make statements regarding 

international law. Department Of 

Defense Instruction 3020.41, the 

overarching Defense policy document 

for this Rule, provides in paragraph 

6.1.1 that: 

Under applicable law, contractors may 

support military operations as civilians 

accompanying the force, so long as such 

personnel have been designated as such by 

the force they accompany and are provided 

with an appropriate identification card under 

the provisions of the 1949 Geneva 

Convention Relative to the Treatment of 

Prisoners of War (GPW) (reference (j)). If 

captured during armed conflict, contingency 

contractor personnel accompanying the force 

are entitled to prisoner of war status. 

The comments regarding direct 

participation in hostilities are 

unsupportable. There is no agreement 

within the international community or 

among recognized authorities in 

international humanitarian law (LOAC) 

on a universally applicable definition 

for ‘‘Direct Participation in Hostilities.’’ 


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49652 Federal Register / Vol. 76, No. 155 / Thursday, August 11, 2011 / Rules and Regulations 

(Public address by Dr. Jakob 

Kellenberger, President, International 

Committee of the Red Cross, 11 

September 2009.) Again, contracting 

regulations are not the place to define 

terms that are not yet defined under 

international law. The Rule specifies 

that command rules for the use of force 

will be consistent with Chairman of the 

Joint Chiefs of Staff Instruction 

3121.01B. This will provide 

commonality regarding the Rules for the 

Use of Force (RUF) but with the 

flexibility for commands to interpret it 

in accordance with local, and 

sometimes transitory, circumstances. 

Comment: The Rule may benefit from 

additional guidance on inter-agency 

cooperation 

Response: Interagency coordination is 

essential to successful contingency 

planning. The Rule, as written supports 

flexible, agile, and focused contingency 

planning and DoD, DoS and USAID 

believe the rule provides sufficient 

strategic direction for interagency 

coordination relative to PSC oversight 

and conduct. DoD disagrees with the 

respondent’s assertion that ‘‘many 

coordination issues will be common 

across AORs.’’ Some may, many more 

may not. The flexibility to adapt 

procedures to local circumstances is 

essential. As the same respondent notes 

in this same section, ‘‘guidance and 

procedures in the Iraq Memorandum of 

Agreement (MOA) are not easily 

transferrable to contingency operations 

outside of Iraq.’’ The MOA between DoD 

and DoS in place in Iraq has proven to 

be extremely successful and serves as a 

good example of interagency 

coordination. It was referenced in the 

IFR as an example or point of departure 

for developing GCC guidance and 

procedures. However, to avoid 

confusion, in the Final Rule we have 

removed the last sentence in Section 

159.6(d) which references the MOA. 

DoD, DoS and USAID recognize that 

some PSC or PSC personnel activities 

may require coordination with other 

Federal agency partners who contract 

for private security services. 

Comment: Confusion about Geographic 

Combatant Commander Delegation 

Authority to Subordinate Commander 

Response: Geographic combatant 

commands themselves do not follow a 

uniform organizational structure and 

commanders are free to assign different 

responsibilities to the most appropriate 

components of their staffs. The language 

in the Final Rule has been changed to 

provide more specificity as to the 

subordinate level to which GCCs can 

delegate responsibility for 

implementation. Through the Rule, the 

phrase ‘‘Subordinate Commander’’ has 

been replaced with ‘‘sub unified 

commanders or combined/joint task 

force commanders’’. 

Comment: The rule needs to include 

reference to existing powers of removal 

of a PSC and personnel 

Response: Such language is 

unnecessary in so far as it is already 

addressed in our existing regulations. 

Section 862(b)(3) of the 2008 NDAA as 

amended includes the following 

language: ‘‘NONCOMPLIANCE OF 

PERSONNEL WITH CLAUSE—The 

contracting officer for a covered contract 

may direct the contractor, at its own 

expense, to remove or replace any 

personnel performing private security 

functions in an area of combat 

operations or other significant military 

operations who violate or fail to comply 

with applicable requirements of the 

clause required by this subsection. If the 

violation or failure to comply is a gross 

violation or failure or is repeated, the 

contract may be terminated for default.’’ 

Incorporation of this statutory language 

will be considered in the DFARS case 

implementing Section 862. 

Comment: The rule fails to address 

subcontractors providing security for 

the prime contractor 

Response: The definition of ‘‘covered 

contract’’ has been revised in the Rule 

to cover contracts for the performance of 

services and/or the delivery of supplies. 

Further, we will ensure that regulatory 

guidance developed subsequent to the 

publication of this Rule makes clear that 

subcontractors providing security for 

prime contractors must comply. 

Comment: Recommend application of 

the rule to PSCs working under 

contract to the DoD whether 

domestically or internationally 

Response: As required by Section 862 

of the 2008 NDAA, as amended, this 

Rule applies to PSCs working for any 

U.S. Government agency in an area of 

combat operations or other significant 

military operations. It also applies to 

PSCs working for DoD in contingency 

operations outside the United States. 

The arrangements for PSC employment 

in the United States are outside the 

scope of this Rule. 

Comment: Section 159.4(a) ‘‘Consistent 

with the requirement of paragraph 

(a)(2) * * *’’ should include at the end 

of the section, ‘‘Coordination shall 

encompass the contemplated use of PSC 

personnel during the planning stages of 

contingency operations so to allow 

guidance to be developed under parts 

(b) and (c) herein and promulgate 

under 159.5 in a timely manner that is 

appropriate for the needs of the 

contingency operation’’ 

Response: The language has been 

revised in the Final Rule. 

Comment: Section 159.6(a)(i) ‘‘Contain 

at a minimum procedures to implement 

the following process * * *’’ should 

include, ‘‘That the Secretary of Defense, 

in coordination with the Secretary of 

State, shall prescribe regulations on the 

selection, training, equipping, and 

conduct of personnel performing 

private security functions under a 

covered contract in an area of combat 

operations’’ 

Response: We believe that the current 

wording is correct, as it reflects our 

intent. 

Comment: Section 159.6(a)(ii) ‘‘PSC 

verification that PSCs meet all the legal, 

training, and qualification 

requirements * * *’’ should include 

‘‘That the FAR shall be revised to 

require the insertion into each covered 

contract of a contract clause; 

addressing the selection, training, 

equipping and conduct of personnel 

performing private security functions 

under such a contract’’ 

Response: A FAR clause will be 

drafted to incorporate all of the 

requirements of this Rule. 

Comment: Section 159.6(a)(v) 

‘‘Reporting alleged criminal activity 

and other incidents involving PSCs or 

PSC personnel by another company or 

any other personnel. All incidents shall 

be reported and documented.’’ These 

reporting requirements are already 

required 

Response: Many of the requirements 

in this rule are already in effect in the 

CENTCOM AOR. With this Rule, we are 

establishing the requirements for all 

Geographic Combatant Commanders 

and Chiefs of Mission in order to extend 

guidance and procedures globally and to 

the wider interagency community. 

Comment: Questions of the propriety of 

having PSCs represent the U.S. in 

contingency operations relative to the 

U.S. Constitution and the Anti 

Pinkerton Act 

Response: The DoD’s use of 

contractors, including private security 


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Federal Register / Vol. 76, No. 155 / Thursday, August 11, 2011 / Rules and Regulations 49653 

contractors, is entirely consistent with 

existing U.S. Government policy on 

inherently governmental functions. We 

are guided by four main documents 

when determining whether an activity 

or function is inherently governmental: 

DoD Instruction 1100.22 ‘‘Policy and 

Procedures for Determining Workforce 

Mix’’; the Federal Acquisition 

Regulations (FAR); the Performance of 

Commercial Activities and the Federal 

Activities Inventory Reform Act, or 

FAIR Act, of 1998; and, Office of 

Management and Budget (OMB) Policy 

Letter 92–1, issued in 1992. The DoD 

recognizes that there are specific 

security functions that are inherently 

governmental and cannot be contracted. 

The DoD does not contract those 

functions, but there are other security 

functions that are appropriate to 

contract. The DoD, the Government 

Accountability Office (GAO), the Office 

of Management and Budget (OMB), the 

Congressional Budget Office (CBO), and 

the Congressional Research Service 

(CRS) have continuously reviewed the 

use of PSCs, the potential for their 

performance of inherently governmental 

functions, and the appropriateness and 

manner in which they are employed. 

Comment: Opposition to the use of 

mercenaries in the U.S. Department of 

Defense 

Response: The DoD does not use 

mercenaries. Article 47 of Additional 

Protocol I to Geneva Conventions 

provides an internationally accepted 

definition of mercenaries. The elements 

of that definition clearly exclude PSCs 

under contract to DoD. Private security 

contractors do not perform military 

functions, but rather, they carry out 

functions similar to those performed by 

security guards in the United States and 

elsewhere. We agree that the behavior of 

PSCs may affect the national security 

goals of the U.S. and for this reason we 

have published guidance on the 

selection, oversight, and management of 

private security contractors operating in 

contingency operations. 

Comment: DoD personnel do not want 

PSCs in a combat situation 

Response: The primary role of the 

armed forces is combat: to close with 

and destroy enemy armed forces 

through firepower, maneuver, and shock 

action. Defense of military personnel 

and activities against organized attack is 

a military responsibility. DoD allocates 

military personnel to these high priority 

combat and other critical combat 

support missions. Private Security 

Companies contracted by the U.S. 

government protect personnel, facilities 

and activities against criminal activity, 

including individual acts of terrorism. 

They are specifically prohibited from 

engaging in combat (offensive) 

operations and certain security 

functions. DoD PSCs have performed 

well and are very important to our 

mission accomplishment in the 

CENTCOM area of responsibility. 

Comment: PSCs should receive 

Veteran’s Affairs benefits for injuries 

sustained while protecting the country 

Response: PSCs and other contractors 

employed by the U.S. government who 

perform work outside of the United 

States are covered by the Longshore and 

Harbor Workers’ Compensation Act 

(LHWCA). The LHWCA provides 

disability compensation and medical 

benefits to employees and death benefits 

to eligible survivors of employees of 

U.S. government contractors who 

perform work overseas. 

The Defense Base Act is an extension 

of the LHWCA. The Defense Base Act 

covers the following employment 

activities: (1) Work for private 

employers on U.S. military bases or on 

any lands used by the U.S. for military 

purposes outside of the United States, 

including those in U.S. Territories and 

possessions; (2) Work on public work 

contracts with any U.S. government 

agency, including construction and 

service contracts in connection with 

national defense or with war activities 

outside the United States; (3) Work on 

contracts approved and funded by the 

U.S. under the Foreign Assistance Act, 

which among other things provides for 

cash sale of military equipment, 

materials, and services to its allies, if the 

contract is performed outside of the 

United States; or (4) Work for American 

employers providing welfare or similar 

services outside the United States for 

the benefit of the Armed Services, e.g. 

the United Service Organizations (USO). 

If any one of the above criteria is met, 

all employees engaged in such 

employment, regardless of nationality 

(including U.S. citizens and residents, 

host country nationals (local hires), and 

third country nationals (individuals 

hired from another country to work in 

the host country)), are covered under 

the Act. 

Comment: Requirements jeopardize 

NGO security posture 

Response: This Rule applies only to 

personnel performing private security 

functions under a covered contract. A 

covered contract is defined by Section 

864(a)(3) of the FY 2008 NDAA, as 

amended by Section 813(b) of the FY 

2010 NDAA. 

Comment: USAID involvement is not 

evident 

Response: USAID has been actively 

involved in various working groups 

implementing the Interim Final Rule 

and developing the Final Rule. 

Comment: PSC rules should be 

consistent with the spirit and intent of 

Guidelines for Relations between U.S. 

Armed Forces and Non-Governmental 

Humanitarian Agencies in Hostile or 

Potentially Hostile Environments 

Response: The purpose of publishing 

the IFR in the Federal Register was to 

obtain the comments of affected 

agencies, NGOs, contractors and the 

public. The respondent was not specific 

about any perceived conflicts that 

needed to be addressed in the PSC rule, 

and should work with their USAID and 

other agency counterparts to provide 

specific inputs on implementing the 

Final Rule. 

Comment: PSC rules should not apply 

to unarmed guard forces 

Response: We believe that the current 

language is correct. When contractors 

providing guard services are not armed, 

those aspects of the rule which are 

specific to armed contractors (i.e. 

arming procedures) are not relevant. 

Comment: Procedures associated with 

PSC rules must be adapted to contexts 

in which NGOs have long-standing 

programs or minor amounts of U.S. 

Government funding 

Response: This Rule applies only to 

personnel performing private security 

functions under a covered contract. A 

covered contract is defined by Section 

864(a)(3) of the FY 2008 NDAA, as 

amended by Section 813(b) of the FY 

2010 NDAA. 

Comment: SPOT’s use for intelligence 

gathering and vetting is unclear 

Response: The Synchronized Predeployment and Operational Tracker 

(SPOT) is a Web-based database which 

is used to gain visibility over contracts 

and contractors supporting U.S. 

Government agencies during 

contingency operations. The SPOT 

system serves multiple purposes; it 

allows contractors to request and 

receive specific logistics support such as 

meals, housing, transportation, medical 

support while working in-country; it 

provides Contracting Officer 

Representatives and Grants Officer 

Representatives with information on 

what contractor and grantee employees 

are working in what locations which 

makes approval of invoices and 

inspection of work easier; it allows 

Contracting Officer Representatives, 


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49654 Federal Register / Vol. 76, No. 155 / Thursday, August 11, 2011 / Rules and Regulations 

Grants Officer Representatives, and 

other personnel to review the 

credentials of individuals requesting the 

authority to carry weapons (either 

government furnished or contractor 

acquired) in the performance of a U.S. 

government contract or grant; it allows 

agencies to report to Congress and other 

oversight organizations on the size of 

contractor and grantee presence in areas 

of combat operations or other significant 

military operations. Congress believes 

the system is necessary. Section 861 of 

FY 2008 NDAA provides that the 

Secretary of Defense, the Secretary of 

State, and the Administrator of USAID 

must agree to adopt a common database 

for contractors in Iraq and Afghanistan. 

SPOT is not used for intelligence 

gathering or vetting of personnel. 

Background checks of PSCs are 

conducted by the contractor and 

validated by the contracting officer. This 

validation is only annotated in SPOT. 

Comment: Applicable guidelines must 

be effectively disseminated to NGOs 

Response: Contracting Officers and 

Grants Officers will remain the primary 

point of contact for contractors and 

grantees on issues affecting 

performance. Rules impacting 

contractors across multiple agencies 

will be promulgated via the FAR with 

appropriate opportunities for contractor 

and public comment during the 

rulemaking process. Rules impacting 

grantees across multiple agencies will 

be promulgated by the Office of 

Management and Budget (OMB) Office 

of Federal Financial Management 

(OFFM) as part of its responsibility to 

issue government-wide grants policy. 

The DoD will ensure that a single 

location, readily accessible to both 

contractors and grantees, exists for the 

publication and maintenance of all 

guidance relating to PSC rules. The 

Department of State and USAID will 

provide any agency unique 

implementing guidance to DoD for 

publication on this same Web site. 

Areas for Clarification and Definitions 

Comment: ‘‘Private Security Functions’’ 

needs to be better defined 

Response: The term ‘‘private security 

functions’’ is defined by section 864 of 

the FY 2008 NDAA; the IFR used this 

definition. The Rule provides 

requirements for the management and 

oversight of companies contracted to 

perform private security functions and 

certain employees who may be required 

to carry and use arms in the 

performance of their duties. Companies 

and their personnel contracted to 

provide training, maintenance, or other 

support functions that are not required 

to carry a weapon in the performance of 

their duties are not addressed by this 

Rule. For clarification, in the Final Rule 

we have added ‘‘in accordance with the 

terms of their contract’’. 

Comment: Enforcement and liability 

pending adoption of FAR clauses 

Response: A FAR case has been 

opened to incorporate the required 

revisions based upon the publication of 

this Rule. 

Comment: The Rule should address 

foreseeable issue concerning host 

nation law 

Response: The Geographic Combatant 

Commander has legal and political staffs 

capable of addressing the concerns 

expressed in this comment. 

Comment: Obligations of non-PSC 

prime contractors 

Response: The definition of ‘‘covered 

contract’’ has been reworded to cover 

contracts for the performance of services 

and/or the delivery of supplies. 

Comment: IFR applicability to 

contingency operations in the U.S. and 

distinction between ‘‘combat 

operations’’ and ‘‘contingency 

operations’’ 

Response: The Rule does not apply to 

operations within the United States. We 

have clarified this in the definition of 

‘‘covered contract.’’ 

Comment: Applicability to foreign 

actors 

Response: When applicable 

conditions are met, the Rule covers all 

companies and personnel providing 

private security functions, regardless of 

the country of registration of the 

company or national origin of its 

employees. We believe that this is 

already made clear by sections 159.2 

(b)(1) and (2) which state the policy 

prescription. The Rule applies to 

government entities and prescribes 

policies for the oversight and 

management of PSCs and PSC 

personnel. The clause in section 159.2 

(2)(a)(2) starting with ‘‘specifically’’ 

describes the conditions under which 

this part would apply beyond DoD, to 

DoS and other Federal agencies. The 

acquisition regulations, rather than this 

rule, will serve as the implementing 

mechanisms for PSC companies. 

Comment: Further define intelligence 

operations 

Response: This language implements 

Section 862 (d) of the FY 2008 NDAA. 

Comment: ‘‘Active non-lethal 

countermeasure’’ would benefit from a 

clear definition and examples 

Response: The following clarification 

has been added to the Rule: ‘‘Active 

non-lethal systems include laser optical 

distracters, acoustic hailing devices, 

electro-muscular TASER guns, blunttrauma devices like rubber balls and 

sponge grenades, and a variety of riotcontrol agents and delivery systems.’’ 

Comment: Definition of Contingency 

Operation is a slight variation of the 

definition of contingency operation in 

FAR 2.101 

Response: The definition in the Rule 

has been updated; it is taken verbatim 

from U.S. Code Title 10, 101(a)(13). 

Comment: Definition of Covered 

Contract excludes temporary 

arrangements outside of DoD for 

private security functions when 

contracted for by a non-DoD contractor 

or a grantee 

Response: The genesis for this 

provision was a USAID concern that 

development projects undertaken by 

USAID may engage local personnel as 

security on an ad hoc basis, and that 

such arrangements should be excluded 

from complying with the requirements 

of this regulation. These arrangements 

cannot realistically be regulated in the 

same manner as traditional contracts. 

Comment: Regarding the Standing rules 

on the use of force consider stating: 

‘‘Issue written authorization to the PSC 

identifying individual PSC personnel 

who are authorized to be armed. Rules 

for the Use of Force shall be included 

with the written authorization, if not 

previously provided to the contractor in 

the solicitation or during the course of 

contract administration. Rules for the 

Use of Force shall conform to the 

guidance in the Chairman of the Joint 

Chiefs of Staff Instruction 3121.01B, 

‘‘Standing Rules of Engagement/ 

Standing Rules for the Use of Force for 

U.S. Forces’’ 

Response: Agreed. The Rule has been 

revised to reflect the proposed change in 

wording. 

Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

It has been certified that 32 CFR part 

159 does not: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy; a section of the economy; 


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productivity; competition; jobs; the 

environment; public health or safety; or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another Agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in these Executive Orders. 

Public Law 104–121, ‘‘Congressional 

Review Act’’ (5 U.S.C. 801) 

It has been determined that 32 CFR 

part 159 is not a ‘‘major’’ rule under 5 

U.S.C. 801, enacted by Pub. L. 104–121, 

because it will not result in an annual 

effect on the economy of $100 million 

or more; a major increase in costs or 

prices for consumers, individual 

industries, Federal, State, or local 

government agencies, or geographic 

regions; or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

Section 202, Public Law 104–4, 

‘‘Unfunded Mandates Reform Act’’ 

It has been certified that 32 CFR part 

159 does not contain a Federal mandate 

that may result in expenditure by State, 

local and Tribal governments, in 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

It has been certified that 32 CFR part 

159 is not subject to the Regulatory 

Flexibility Act (5 U.S.C. 601) because it 

would not, if promulgated, have a 

significant economic impact on a 

substantial number of small entities. 

This rule will apply only to a specific 

sector of defense industry and a limited 

number of small entities. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

It has been certified that 32 CFR part 

159 does impose reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act of 1995. 

These requirements have been approved 

by OMB and assigned OMB Control 

Numbers 0704–0460, ‘‘Synchronized 

Predeployment and Operational Tracker 

(SPOT) System’’ and 0704–0461, 

‘‘Qualification to Possess Firearms or 

Ammunition.’’ 

Executive Order 13132, ‘‘Federalism’’ 

It has been certified that 32 CFR part 

159 does not have federalism 

implications, as set forth in Executive 

Order 13132. This rule does not have 

substantial direct effects on: 

(1) The States; 

(2) The relationship between the 

National Government and the States; or 

(3) The distribution of power and 

responsibilities among the various 

levels of Government. 

List of Subjects in 32 CFR Part 159 

Contracts, Security measures. 

Accordingly, the interim rule 

amending 32 CFR part 159 which was 

published at 74 FR 34691 on July 17, 

2009, is adopted as a final rule with the 

following change. Part 159 is revised to 

read as follows: 

PART 159—PRIVATE SECURITY 

CONTRACTORS OPERATING IN 

CONTINGENCY OPERATIONS 

Sec. 

159.1 Purpose. 

159.2 Applicability and scope. 

159.3 Definitions. 

159.4 Policy. 

159.5 Responsibilities. 

159.6 Procedures. 

Authority: Pub. L. 110–181; Pub. L. 110– 

417. 

§ 159.1 Purpose. 

This part establishes policy, assigns 

responsibilities and provides 

procedures for the regulation of the 

selection, accountability, training, 

equipping, and conduct of personnel 

performing private security functions 

under a covered contract. It also assigns 

responsibilities and establishes 

procedures for incident reporting, use of 

and accountability for equipment, rules 

for the use of force, and a process for 

administrative action or the removal, as 

appropriate, of PSCs and PSC personnel. 

§ 159.2 Applicability and scope. 

This part: 

(a) Applies to: 

(1) The Office of the Secretary of 

Defense, the Military Departments, the 

Office of the Chairman of the Joint 

Chiefs of Staff and the Joint Staff, the 

Combatant Commands, the Office of the 

Inspector General of the Department of 

Defense, the Defense Agencies, the DoD 

Field Activities, and all other 

organizational entities in the 

Department of Defense (hereafter 

referred to as the ‘‘DoD Components’’). 

(2) The Department of State and other 

U.S. Federal agencies insofar as it 

implements the requirements of section 

862 of Public Law 110–181, as 

amended. Specifically, in areas of 

operations which require enhanced 

coordination of PSC and PSC personnel 

working for U.S. Government (U.S.G.) 

agencies, the Secretary of Defense may 

designate such areas as areas of combat 

operations or other significant military 

operations for the limited purposes of 

this part. In such an instance, the 

standards established in accordance 

with this part would, in coordination 

with the Secretary of State, expand from 

covering only DoD PSCs and PSC 

personnel to cover all U.S.G.-funded 

PSCs and PSC personnel operating in 

the designated area. The requirements of 

this part shall not apply to a nonprofit 

nongovernmental organization receiving 

grants or cooperative agreements for 

activities conducted within an area of 

other significant military operations if 

the Secretary of Defense and the 

Secretary of State agree that such 

organization may be exempted. An 

exemption may be granted by the 

agreement of the Secretaries under this 

paragraph on an organization-byorganization or area-by-area basis. Such 

an exemption may not be granted with 

respect to an area of combat operations. 

(b) Prescribes policies applicable to 

all: 

(1) DoD PSCs and PSC personnel 

performing private security functions 

during contingency operations outside 

the United States. 

(2) USG-funded PSCs and PSC 

personnel performing private security 

functions in an area of combat 

operations or, with the agreement of the 

Secretary of State, other significant 

military operations as designated by the 

Secretary of Defense. 

§ 159.3 Definitions. 

Unless otherwise noted, these terms 

and their definitions are for the purpose 

of this part. 

Area of combat operations. An area of 

operations designated as such by the 

Secretary of Defense for the purpose of 

this part, when enhanced coordination 

of PSCs working for U.S.G. agencies is 

required. 

Contingency operation. A military 

operation that is either designated by 

the Secretary of Defense as a 

contingency operation or becomes a 

contingency operation as a matter of law 

(10 U.S.C. 101(a)(13)). It is a military 

operation that: 

(1) Is designated by the Secretary of 

Defense as an operation in which 

members of the Armed Forces are or 

may become involved in military 

actions, operations, or hostilities against 

an enemy of the United States or against 

an opposing military force; or 

(2) Results in the call or order to, or 

retention on, active duty of members of 


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1With respect to an area of other significant 

military operations, the requirements of this part 

shall apply only upon agreement of the Secretary 

of Defense and the Secretary of State. Such an 

agreement of the Secretaries may be made only on 

an area-by-area basis. With respect to an area of 

combat operations, the requirements of this part 

shall always apply. 

2Contractors performing private security 

functions are not authorized to perform inherently 

governmental functions. In this regard, they are 

limited to a defensive response to hostile acts or 

demonstrated hostile intent. 

3Available at http://www.dtic.mil/whs/directives/ 

corres/pdf/302041p.pdf. 

4Published in Title 48 of the Code of Federal 

Regulations. 

5Published in Title 48 of the Code of Federal 

Regulations. 

6Available from http://www.dtic.mil/whs/ 

directives/corres/pdf/302040p.pdf. 

the uniformed services under section 

688, 12301(a), 12302, 12304, 12305, 

12406, of 10 U.S.C., chapter 15 of 10 

U.S.C. or any other provision of law 

during a war or during a national 

emergency declared by the President or 

Congress. 

Contractor. The contractor, 

subcontractor, grantee, or other party 

carrying out the covered contract. 

Covered contract. (1) A DoD contract 

for performance of services and/or 

delivery of supplies in an area of 

contingency operations outside the 

United States or a contract of a non-DoD 

Federal agency for performance of 

services and/or delivery of supplies in 

an area of combat operations or other 

significant military operations, as 

designated by the Secretary of Defense; 

a subcontract at any tier under such a 

contract; or a task order or delivery 

order issued under such a contract or 

subcontract. 

(2) Also includes contracts or 

subcontracts funded under grants and 

sub-grants by a Federal agency for 

performance in an area of combat 

operations or other significant military 

operations as designated by the 

Secretary of Defense. 

(3) Excludes temporary arrangements 

entered into by non-DoD contractors or 

grantees for the performance of private 

security functions by individual 

indigenous personnel not affiliated with 

a local or expatriate security company. 

Such arrangements must still be in 

compliance with local law. 

Other significant military operations. 

For purposes of this part, the term ‘other 

significant military operations’ means 

activities, other than combat operations, 

as part of an overseas contingency 

operation that are carried out by United 

States Armed Forces in an uncontrolled 

or unpredictable high-threat 

environment where personnel 

performing security functions may be 

called upon to use deadly force.1

Private security functions. Activities 

engaged in by a contractor under a 

covered contract as follows: 

(1) Guarding of personnel, facilities, 

designated sites, or property of a Federal 

agency, the contractor or subcontractor, 

or a third party.2

(2) Any other activity for which 

personnel are required to carry weapons 

in the performance of their duties in 

accordance with the terms of their 

contract. For the DoD, DoDI Instruction 

3020.41, ‘‘Contractor Personnel 

Authorized to Accompany the U.S. 

Armed Forces,’’ 3 prescribes policies 

related to personnel allowed to carry 

weapons for self defense. 

PSC. During contingency operations 

‘‘PSC’’ means a company employed by 

the DoD performing private security 

functions under a covered contract. In a 

designated area of combat operations or 

other significant military operations, the 

term ‘‘PSC’’ expands to include all 

companies employed by U.S.G. agencies 

performing private security functions 

under a covered contract. 

PSC personnel. Any individual 

performing private security functions 

under a covered contract. 

§ 159.4 Policy. 

(a) Consistent with the requirements 

of paragraph (a)(2) of section 862 of 

Public Law 110–181, the selection, 

training, equipping, and conduct of PSC 

personnel including the establishment 

of appropriate processes shall be 

coordinated between the DoD and the 

Department of State. Coordination shall 

encompass the contemplated use of PSC 

personnel during the planning stages of 

contingency operations so as to allow 

guidance to be developed under 

paragraphs (b) and (c) of this section 

and promulgated under section 159.5 of 

this part in a timely manner that is 

appropriate for the needs of the 

contingency operation. 

(b) Geographic Combatant 

Commanders will provide tailored PSC 

guidance and procedures for the 

operational environment in their Area of 

Responsibility (AOR) in accordance 

with this part, the Federal Acquisition 

Regulation (FAR) 4 and the Defense 

Federal Acquisition Regulation 

Supplement (DFARS).5

(c) In a designated area of combat 

operations or other significant military 

operations, the relevant Chief of Mission 

will be responsible for developing and 

issuing implementing instructions for 

non-DoD PSCs and their personnel 

consistent with the standards set forth 

by the geographic Combatant 

Commander in accordance with 

paragraph (b) of this section. The Chief 

of Mission has the option to instruct 

non-DoD PSCs and their personnel to 

follow the guidance and procedures 

developed by the geographic Combatant 

Commander and/or a sub unified 

commander or joint force commander 

(JFC) where specifically authorized by 

the Combatant Commander to do so and 

notice of that authorization is provided 

to non-DoD agencies. 

(d) The requirements of this part shall 

not apply to contracts entered into by 

elements of the intelligence community 

in support of intelligence activities. 

§ 159.5 Responsibilities. 

(a) The Deputy Assistant Secretary of 

Defense for Program Support, under the 

authority, direction, and control of the 

Assistant Secretary of Defense for 

Logistics and Materiel Readiness, shall 

monitor the registering, processing, and 

accounting of PSC personnel in an area 

of contingency operations. 

(b) The Director, Defense Procurement 

and Acquisition Policy, under the 

authority, direction, and control of the 

Under Secretary of Defense for 

Acquisition, Technology and Logistics, 

shall ensure that the DFARS and (in 

consultation with the other members of 

the FAR Council) the FAR provide 

appropriate guidance and contract 

clauses consistent with this part and 

paragraph (b) of section 862 of Public 

Law 110–181. 

(c) The Deputy Chief Management 

Officer of the Department of Defense 

shall direct the appropriate component 

to ensure that information systems 

effectively support the accountability 

and visibility of contracts, contractors, 

and specified equipment associated 

with private security functions. 

(d) The Chairman of the Joint Chiefs 

of Staff shall ensure that joint doctrine 

is consistent with the principles 

established by DoD Directive 3020.49, 

‘‘Orchestrating, Synchronizing, and 

Integrating Program Management of 

Contingency Acquisition Planning and 

Its Operational Execution,’’ 6 DoD 

Instruction 3020.41, ‘‘Contractor 

Personnel Authorized to Accompany 

the U.S. Armed Forces,’’ and this part. 

(e) The geographic Combatant 

Commanders in whose AOR a 

contingency operation is occurring, and 

within which PSCs and PSC personnel 

perform under covered contracts, shall: 

(1) Provide guidance and procedures, 

as necessary and consistent with the 

principles established by DoD Directive 

3020.49, ‘‘Orchestrating, Synchronizing, 

and Integrating Program Management of 

Contingency Acquisition Planning and 

Its Operational Execution,’’ DoD 

Instruction 3020.41, ‘‘Contractor 


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7Available at http://www.dtic.mil/whs/directives/ 

corres/html/302041.htm. 

8CJCSI 3121.01B provides guidance on the 

standing rules of engagement (SROE) and 

establishes standing rules for the use of force 

(SRUF) for DOD operations worldwide. This 

document is classified secret. CJCSI 3121.01B is 

available via Secure Internet Protocol Router 

Network at http://js.smil.mil. If the requester is not 

an authorized user of the classified network, the 

requester should contact Joint Staff J–3 at 703–614– 

0425. 

9Available at http://www.dtic.mil/whs/directives/ 

corres/html/231101.htm. 

10Available at http://www.dtic.mil/whs/ 

directives/corres/pdf/520008r.pdf. 

11Available at http://www.dtic.mil/whs/ 

directives/corres/html/521056.htm. 

12Available at http://www.dtic.mil/whs/ 

directives/corres/pdf/110022p.pdf. 

Personnel Authorized to Accompany 

the U.S. Armed Forces,’’ 7 and this part, 

for the selection, training, accountability 

and equipping of such PSC personnel 

and the conduct of PSCs and PSC 

personnel within their AOR. Individual 

training and qualification standards 

shall meet, at a minimum, one of the 

Military Departments’ established 

standards. Within a geographic 

combatant command, a sub unified 

commander or JFC shall be responsible 

for developing and issuing 

implementing procedures as warranted 

by the situation, operation, and 

environment, in consultation with the 

relevant Chief of Mission in designated 

areas of combat operations or other 

significant military operations. 

(2) Through the Contracting Officer, 

ensure that PSC personnel acknowledge, 

through their PSC, their understanding 

and obligation to comply with the terms 

and conditions of their covered 

contracts. 

(3) Issue written authorization to the 

PSC identifying individual PSC 

personnel who are authorized to be 

armed. Rules for the Use of Force shall 

be included with the written 

authorization, if not previously 

provided to the contractor in the 

solicitation or during the course of 

contract administration. Rules for the 

Use of Force shall conform to the 

guidance in the Chairman of the Joint 

Chiefs of Staff Instruction 3121.01B, 

‘‘Standing Rules of Engagement/ 

Standing Rules for the Use of Force for 

U.S. Forces.’’ Access by offerors and 

contractors to the rules for the use of 

force may be controlled in accordance 

with the terms of FAR 52.204–2 (Aug 

1996), DFARS 252.204–7000 (Dec 1991), 

or both.8

(4) Ensure that the procedures, orders, 

directives and instructions prescribed in 

§ 159.6(a) of this part are available 

through a single location (to include an 

Internet Web site, consistent with 

security considerations and 

requirements). 

(f) The Heads of the DoD Components 

shall: 

(1) Ensure that all private securityrelated requirement documents are in 

compliance with the procedures listed 

in § 159.6 of this part and the guidance 

and procedures issued by the 

geographic Combatant Command, 

(2) Ensure private security-related 

contracts contain the appropriate 

clauses in accordance with the 

applicable FAR clause and include 

additional mission-specific 

requirements as appropriate. 

§ 159.6 Procedures. 

(a) Standing Combatant Command 

Guidance and Procedures. Each 

geographic Combatant Commander shall 

develop and publish guidance and 

procedures for PSCs and PSC personnel 

operating during a contingency 

operation within their AOR, consistent 

with applicable law; this part; 

applicable Military Department 

publications; and other applicable DoD 

issuances to include DoD Directive 

3020.49, ‘‘Orchestrating, Synchronizing, 

and Integrating Program Management of 

Contingency Acquisition Planning and 

Its Operational Execution,’’ DFARS, 

DoD Directive 2311.01E, ‘‘DoD Law of 

War Program,’’ 9 DoD 5200.8–R, 

‘‘Physical Security Program,’’ 10 CJCSI 

3121.01B, ‘‘Standing Rules of 

Engagement/Standing Rules for the Use 

of Force for U.S. Forces,’’ and DoD 

Directive 5210.56, ‘‘Use of Deadly Force 

and the Carrying of Firearms by DoD 

Personnel Engaged in Law Enforcement 

and Security Duties.’’ 11 The guidance 

and procedures shall: 

(1) Contain, at a minimum, 

procedures to implement the following 

processes, and identify the organization 

responsible for managing these 

processes: 

(i) Registering, processing, accounting 

for and keeping appropriate records of 

PSCs and PSC personnel in accordance 

with DoD Instruction 3020.41, 

‘‘Contractor Personnel Authorized to 

Accompany the U.S. Armed Forces.’’ 

(ii) PSC verification that PSC 

personnel meet all the legal, training, 

and qualification requirements for 

authorization to carry a weapon in 

accordance with the terms and 

conditions of their contract and host 

country law. Weapons accountability 

procedures will be established and 

approved prior to the weapons 

authorization. 

(iii) Arming of PSC personnel. 

Requests for permission to arm PSC 

personnel shall be reviewed on a caseby-case basis by the appropriate Staff 

Judge Advocate to the geographic 

Combatant Commander (or a designee) 

to ensure there is a legal basis for 

approval. The request will then be 

approved or denied by the geographic 

Combatant Commander or a specifically 

identified designee, no lower than the 

flag officer level. Requests to arm nonDOD PSC personnel shall be reviewed 

and approved in accordance with 

§ 159.4(c) of this part. Requests for 

permission to arm all PSC personnel 

shall include: 

(A) A description of where PSC 

personnel will operate, the anticipated 

threat, and what property or personnel 

such personnel are intended to protect, 

if any. 

(B) A description of how the 

movement of PSC personnel will be 

coordinated through areas of increased 

risk or planned or ongoing military 

operations, including how PSC 

personnel will be rapidly identified by 

members of the U.S. Armed Forces. 

(C) A communication plan, to include 

a description of how relevant threat 

information will be shared between PSC 

personnel and U.S. military forces and 

how appropriate assistance will be 

provided to PSC personnel who become 

engaged in hostile situations. DoD 

contractors performing private security 

functions are only to be used in 

accordance with DoD Instruction 

1100.22, ‘‘Guidance for Determining 

Workforce Mix,’’ 12 that is, they are 

limited to a defensive response to 

hostile acts or demonstrated hostile 

intent. 

(D) Documentation of individual 

training covering weapons 

familiarization and qualification, rules 

for the use of force, limits on the use of 

force including whether defense of 

others is consistent with host nation 

Status of Forces Agreements or local 

law, the distinction between the rules of 

engagement applicable to military forces 

and the prescribed rules for the use of 

force that control the use of weapons by 

civilians, and the Law of Armed 

Conflict. 

(E) Written acknowledgment by the 

PSC and its individual PSC personnel, 

after investigation of background of PSC 

personnel by the contractor, verifying 

such personnel are not prohibited under 

U.S. law to possess firearms. 

(F) Written acknowledgment by the 

PSC and individual PSC personnel that: 

(1) Inappropriate use of force by 

contractor personnel authorized to 

accompany the U.S. Armed Forces may 

subject such personnel to United States 


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13This requirement is specific to arming 

procedures. Such written acknowledgement should 

not be construed to limit potential civil and 

criminal liability to conduct arising from ‘‘the use 

of weapons.’’ For example, PSC personnel could be 

held criminally liable for any conduct that would 

constitute a Federal offense (see MEJA, 18 U.S.C. 

3261(a)). 

or host nation prosecution and civil 

liability.13

(2) Proof of authorization to be armed 

must be carried by each PSC personnel. 

(3) PSC personnel may possess only 

U.S.G.-issued and/or -approved 

weapons and ammunition for which 

they have been qualified according to 

paragraph (a)(1)(iii)(E) of this section. 

(4) PSC personnel were briefed about 

and understand limitations on the use of 

force. 

(5) Authorization to possess weapons 

and ammunition may be revoked for 

non-compliance with established rules 

for the use of force. 

(6) PSC personnel are prohibited from 

consuming alcoholic beverages or being 

under the influence of alcohol while 

armed. 

(iv) Registration and identification in 

the Synchronized Predeployment and 

Operational Tracker (or its successor 

database) of armored vehicles, 

helicopters, and other vehicles operated 

by PSC personnel. 

(v) Reporting alleged criminal activity 

or other incidents involving PSCs or 

PSC personnel by another company or 

any other person. All incidents 

involving the following shall be 

reported and documented: 

(A) A weapon is discharged by an 

individual performing private security 

functions; 

(B) An individual performing private 

security functions is killed or injured in 

the performance of their duties; 

(C) A person other than an individual 

performing private security functions is 

killed or injured as a result of conduct 

by PSC personnel; 

(D) Property is destroyed as a result of 

conduct by a PSC or PSC personnel; 

(E) An individual performing private 

security functions has come under 

attack including in cases where a 

weapon is discharged against an 

individual performing private security 

functions or personnel performing such 

functions believe a weapon was so 

discharged; or 

(F) Active, non-lethal countermeasures (other than the discharge of a 

weapon) are employed by PSC 

personnel in response to a perceived 

immediate threat in an incident that 

could significantly affect U.S. objectives 

with regard to the military mission or 

international relations. (Active nonlethal systems include laser optical 

distracters, acoustic hailing devices, 

electro-muscular TASER guns, blunttrauma devices like rubber balls and 

sponge grenades, and a variety of riotcontrol agents and delivery systems). 

(vi) The independent review and, if 

practicable, investigation of incidents 

reported pursuant to paragraphs 

(a)(1)(v)(A) through (a)(1)(v)(F) of this 

section and incidents of alleged 

misconduct by PSC personnel. 

(vii) Identification of ultimate 

criminal jurisdiction and investigative 

responsibilities, where conduct of 

U.S.G.-funded PSCs or PSC personnel 

are in question, in accordance with 

applicable laws to include a recognition 

of investigative jurisdiction and 

coordination for joint investigations 

(i.e., other U.S.G. agencies, host nation, 

or third country agencies), where the 

conduct of PSCs and PSC personnel is 

in question. 

(viii) A mechanism by which a 

commander of a combatant command 

may request an action by which PSC 

personnel who are non-compliant with 

contract requirements are removed from 

the designated operational area. 

(ix) Interagency coordination of 

administrative penalties or removal, as 

appropriate, of non-DoD PSC personnel 

who fail to comply with the terms and 

conditions of their contract, as they 

relate to this part. 

(x) Implementation of the training 

requirements contained below in 

paragraph (a)(2)(ii) of this section. 

(2) Specifically cover: 

(i) Matters relating to authorized 

equipment, force protection, security, 

health, safety, and relations and 

interaction with locals in accordance 

with DoD Instruction 3020.41, 

‘‘Contractor Personnel Authorized to 

Accompany the U.S. Armed Forces.’’ 

(ii) Predeployment training 

requirements addressing, at a minimum, 

the identification of resources and 

assistance available to PSC personnel as 

well as country information and cultural 

training, and guidance on working with 

host country nationals and military 

personnel. 

(iii) Rules for the use of force and 

graduated force procedures. 

(iv) Requirements and procedures for 

direction, control and the maintenance 

of communications with regard to the 

movement and coordination of PSCs 

and PSC personnel, including 

specifying interoperability 

requirements. These include 

coordinating with the Chief of Mission, 

as necessary, private security operations 

outside secure bases and U.S. 

diplomatic properties to include 

movement control procedures for all 

contractors, including PSC personnel. 

(b) Availability of Guidance and 

Procedures. The geographic Combatant 

Commander shall ensure the guidance 

and procedures prescribed in paragraph 

(a) of this section are readily available 

and accessible by PSCs and their 

personnel (e.g., on a Web page and/or 

through contract terms), consistent with 

security considerations and 

requirements. 

(c) Subordinate Guidance and 

Procedures. A sub unified commander 

or JFC, in consultation with the Chief of 

Mission, will issue guidance and 

procedures implementing the standing 

combatant command publications 

specified in paragraph (a) of this 

section, consistent with the situation 

and operating environment. 

(d) Consultation and Coordination. 

The Chief of Mission and the geographic 

Combatant Commander/sub unified 

commander or JFC shall make every 

effort to consult and coordinate 

responses to common threats and 

common concerns related to oversight of 

the conduct of U.S.G.-funded PSCs and 

their personnel. 

Dated: August 3, 2011. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2011–20239 Filed 8–10–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 319 

[Docket ID DOD–2011–OS–0022] 

Privacy Act; Implementation 

AGENCY: Defense Intelligence Agency, 

DoD. 

ACTION: Direct final rule with request for 

comments. 

SUMMARY: The Defense Intelligence 

Agency is deleting an exemption rule 

for LDIA 0275, ‘‘DoD Hotline Referrals’’ 

in its entirety. This direct final rule 

makes nonsubstantive changes to the 

Defense Intelligence Agency Privacy 

Program rules. These changes will allow 

the Department to transfer these records 

to another system of records LDIA 0271, 

‘‘Investigations and Complaints’’ (July 

19, 2006, 71 FR 41006). This will 

improve the efficiency and effectiveness 

of DoD’s program by preserving the 

exempt status of the records when the 

purposes underlying the exemption are 

valid and necessary to protect the 

contents of the records. This rule is 

being published as a direct final rule as 

the Department of Defense does not 


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