42820 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Proposed Rules 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 212, and 252 

[Docket DARS–2018–0038] 

RIN 0750–AJ45 

Defense Federal Acquisition 

Regulation Supplement: Antiterrorism 

Training Requirements for Contractors 

(DFARS Case 2017–D034) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement the requirement for 

contractors to complete Level I 

antiterrorism awareness training. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 23, 2018, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2017–D034, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2017–D034.’’ Select 

‘‘Comment Now’’ and follow the 

instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2017–D034’’ on any attached 

documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2017–D034 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Kimberly 

Bass, OUSD(A&S)DPC/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). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Kimberly Bass, telephone 571–372– 

6174. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement the antiterrorism training 

requirements for contractors provided in 

DoD Instruction (DoDI) O–2000.16, 

Volume 1, DoD Antiterrorism (AT) 

Program Implementation: DoD AT 

Standards (available at http://

www.esd.whs.mil/Directives/issuances/ 

dodi/). The rule will ensure contractors 

are aware of the requirement for 

contractor personnel, who as a 

condition of contract performance 

require routine physical access to a 

Federally-controlled facility or military 

installation, to complete Level I DoD 

antiterrorism awareness training. 

Routine physical access is considered 

more than intermittent access, such as 

when a contractor employee is required 

to obtain a Common Access Card. The 

training is required within 30 days of 

requiring access and annually thereafter 

and must be completed either through 

DoD-sponsored and certified computer 

or web-based distance learning 

instruction, or under the instruction of 

a qualified Level I antiterrorism 

awareness instructor. 

II. Discussion and Analysis 

This rule proposes a new DFARS 

subpart 204.7X, Antiterrorism 

Awareness Training, to address the 

requirement for covered contractors to 

complete Level I antiterrorism 

awareness training. The new subpart 

advises contracting officers of the 

training requirement, the authorized 

sources of training, and when training 

must be completed by contractors. This 

subpart also prescribes a new DFARS 

clause 252.204–7XXX, Antiterrorism 

Awareness Training for Contractors, for 

use in all solicitations and contracts, 

including those for the acquisition of 

commercial items, when contractor 

personnel will require routine physical 

access to a Federally-controlled facility 

or military installation. The clause 

advises contractors of the training 

requirements, provides a reference to 

additional information and guidance 

available on the internet, and instructs 

contractors to include the clause in all 

subcontracts. Conforming changes are 

made to DFARS 212.301(f)(ii) to add the 

new clause to the list of contract clauses 

applicable to the acquisition of 

commercial items. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Items, Including Commercially 

Available Off-the-Shelf (COTS) Items 

This rule proposes to create a new 

clause, DFARS 252.204–7XXX, 

Antiterrorism Awareness Training for 

Contractors, to advise DoD contractors 

of the requirement for its employees 

(and those of its subcontractors, if 

applicable) to complete Level I 

antiterrorism awareness training within 

30 days of requiring access and annually 

thereafter, if, as a condition of contract 

performance require routine physical 

access to a Federally-controlled facility 

or a military installation. DoD plans to 

apply this clause to solicitations and 

contracts below the SAT and to the 

acquisition of commercial items, 

including COTS items (as defined in 

Federal Acquisition Regulation 2.101). 

This is necessary in order to reach as 

wide an audience as possible to ensure 

contractor personnel who are required 

to have routine physical access to a 

Federally-controlled facility or military 

installation are aware of this training 

requirement. 

IV. 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. 

V. Executive Order 13771 

This proposed rule is not expected to 

be an E.O. 13771, Reducing Regulation 

and Controlling Regulatory Costs, 

regulatory action, because this proposed 

rule is not significant under E.O. 12866. 

VI. Regulatory Flexibility Act 

This rule is not expected 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. An 

initial regulatory flexibility analysis has 

been performed and is summarized as 

follows: 

This action is necessary to implement 

the requirements of DoD Instruction O– 

2000.16, Volume 1, DoD Antiterrorism 

(AT) Program Implementation: DoD AT 

Standards, to ensure that contractors 

complete Level I antiterrorism 

awareness training. 

The objective of this proposed rule is 

to ensure contractor personnel who, as 

a condition of contract performance, 

require routine physical access to a 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Proposed Rules 42821 

Federally-controlled facility or military 

installation are aware of terrorism 

threats and the proper responses to 

threat actions. In recent years, there 

have been terrorist events directed at 

Federally-controlled facilities and 

military installation and all personnel 

that routinely access those facilities 

need to be aware of the threat. 

It is expected that contracts that 

contain the clause at Federal 

Acquisition Regulation (FAR) 52.204–9, 

Personal Identity Verification of 

Contractor Personnel, are contracts that 

would require contractor personnel to 

have routine physical access to 

Federally-controlled facilities or 

military installations. According to data 

available in the Electronic Data Access 

system, in fiscal year 2017, DoD 

awarded 137,106 contracts containing 

the clause at FAR 52.204–9 to 15,814 

businesses, of which 10,837 (68.5 

percent) were to small businesses. 

Common Access Cards (CAC) are issued 

to contractors who require routine 

physical access to a Federally-controlled 

facility or military installation. There 

are currently 507,665 contractors that 

hold CAC cards. 

The impact is not expected to be 

significant, because current contractor 

employees who hold a CAC have 

already completed the requisite training 

and the cost of training new contractor 

personnel is at the expense of the 

Department. The time allotted for the 

training is approximately two hours per 

year. The training will provide safety 

awareness and precautionary measures 

that will benefit contractor personnel 

requiring routine physical access to a 

Federally-controlled facilities or 

military installations. This awareness 

not only benefits the contractor 

personnel, but also DoD civilians, 

military, and its assets. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

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 this 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 2017–D034), in 

correspondence. 

VII. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 204, 

212, and 252 

Government procurement. 

Jennifer Lee Hawes, 

Regulatory Control Officer, Defense 

Acquisition Regulations System. 

Therefore, 48 CFR parts 204, 212, and 

252 are proposed to be amended as 

follows: 

■ 1. The authority citation for 48 CFR 

parts 204, 212, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 2. Add new subpart 204.7X to read as 

follows: 

Subpart 204.7X—Antiterrorism Awareness 

Training 

Sec. 

204.7X00 Scope of subpart. 

204.7X01 Definition. 

204.7X02 Policy. 

204.7X03 Contract clause. 

Subpart 204.7X—Antiterrorism 

Awareness Training 

204.7X00 Scope of subpart. 

This subpart provides policy and 

guidance related to antiterrorism 

awareness training for contractor 

personnel who require routine physical 

access to a Federally-controlled facility 

or military installation. 

204.7X01 Definition. 

As used in this subpart— 

Military installation means a base, 

camp, post, station, yard, center, or 

other activity under the jurisdiction of 

the Secretary of a military department 

(see 10 U.S.C. 2801(c)(4)). 

204.7X02 Policy. 

It is DoD policy that— 

(a) Contractor personnel who, as a 

condition of contract performance, 

require routine physical access to a 

Federally-controlled facility or military 

installation are required to complete 

Level I antiterrorism awareness training 

within 30 days of requiring access and 

annually thereafter. 

(b) In accordance with Department of 

Defense Instruction O–2000.16, Volume 

1, DoD Antiterrorism (AT) Program 

Implementation: DoD AT Standards, 

Level I antiterrorism awareness training 

may be completed— 

(1) Through a DoD-sponsored and 

certified computer or web-based 

distance learning instruction for Level I 

antiterrorism awareness; or 

(2) Under the instruction of a 

qualified Level I antiterrorism 

awareness instructor. 

204.7X03 Contract clause. 

Include the clause at 252.204–7XXX, 

DoD Antiterrorism Awareness Training 

for Contractors, in solicitations and 

contracts, including solicitations and 

contracts using FAR part 12 procedures 

for the acquisition of commercial items, 

when contractor personnel require 

routine physical access to a Federallycontrolled facility or military 

installation. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 3. Amend section 212.301, by adding 

new paragraph (f)(ii)(G) to read as 

follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

* * * * * 

(f) * * * 

(ii) * * * 

(G) Use the clause at 252.204–7XXX, 

Antiterrorism Awareness Training for 

Contractors, as prescribed in 204.7X03. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Add section 252.204–7XXX to read 

as follows: 

252.204–7XXX Antiterrorism Awareness 

Training for Contractors. 

As prescribed in 204.7X03, use the 

following clause: 

Level I Antiterrorism Awareness 

Training for Contractors (Date) 

(a) Definition. As used in this clause— 

Military installation means a base, camp, 

post, station, yard, center, or other activity 

under the jurisdiction of the Secretary of a 

military department (see 10 U.S.C. 

2801(c)(4)). 

(b) Training. Contractor personnel who 

require routine physical access to a 

Federally-controlled facility or military 

installation shall complete Level I 

antiterrorism awareness training within 30 

days of requiring access and annually 

thereafter. In accordance with Department of 

Defense Instruction O–2000.16 Volume 1, 

DoD Antiterrorism (AT) Program 

Implementation: DoD AT Standards, Level I 

antiterrorism awareness training shall be 

completed— 

(1) Through a DoD-sponsored and certified 

computer or web-based distance learning 

instruction for Level I antiterrorism 

awareness; or 

(2) Under the instruction of a Level I 

antiterrorism awareness instructor. 

(c) Information and guidance pertaining 

DoD antiterrorism awareness training is 


sradovich on DSK3GMQ082PROD with PROPOSALS
42822 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Proposed Rules 

available at http://jko.jfcom.mil/ or as 

otherwise identified in the performance work 

statement. 

(d) The Contractor shall include the 

substance of this clause, including this 

paragraph (d), in subcontracts, including 

subcontracts for commercial items, when 

subcontractor performance requires routine 

physical access to a Federally-controlled 

facility or military installation. 

(End of clause) 

[FR Doc. 2018–18250 Filed 8–23–18; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 225, and 252 

[Docket DARS–2018–0028] 

RIN 0750–AJ71 

Defense Federal Acquisition 

Regulation Supplement: Sunset of 

Provision Relating to the Procurement 

of Certain Goods (DFARS Case 2018– 

D007) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2018 that repeals the Fiscal Year 

2015 restrictions on the source of 

photovoltaic devices in contracts 

awarded by DoD that result in DoD 

ownership of photovoltaic devices by 

means other than DoD purchase of the 

photovoltaic devices as end products. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 23, 2018, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D007, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2018–D007’’. Select 

‘‘Comment Now’’ and follow the 

instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2018–D007’’ on any attached 

documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D007 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Amy G. 

Williams, OUSD(A&S)DPC/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). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy G. Williams, telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement section 813(b) of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2018. 

Section 813(b) repeals section 858 of the 

NDAA for FY 2015, effective October 1, 

2018, but does not repeal section 846 of 

the NDAA for FY 2011. DoD published 

the final rule to implement section 858 

under DFARS case 2015–D007 in the 

Federal Register on November 20, 2015 

(80 FR 72599). 

Section 858 of the NDAA for FY 2015 

did not contain specific language to 

rescind or supersede section 846 of the 

NDAA for FY 2011, which was first 

implemented in the DFARS by an 

interim rule under DFARS Case 2011– 

D046, published in the Federal Register 

on December 20, 2011 (76 FR 78858), 

and then finalized on May 22, 2012 (77 

FR 30368). 

II. Discussion and Analysis 

A. Analysis of Statutory Requirements 

1. Covered Contracts 

Section 846 applies to contracts 

awarded by DoD, including energy 

savings performance contracts, utility 

energy service contracts, and private 

housing contracts, to the extent that 

such contracts result in ownership of 

photovoltaic devices by DoD. Section 

846 further provides that DoD is deemed 

to own a photovoltaic device if the 

device is— 

• Installed on DoD property or in a 

facility owned by DoD; and 

• Reserved for the exclusive use of 

DOD for the full economic life of the 

device. 

Section 858 substituted ‘‘or’’ for 

‘‘and’’ in connecting the two conditions. 

Therefore, either one of the conditions 

would be sufficient to make the law 

applicable. By repealing section 858, the 

law does not apply unless both of the 

conditions are met. Although section 

858 explicitly restricted applicability to 

the United States, that restriction is still 

equivalent to the section 846 

applicability, because the Buy American 

statute invoked in section 846 does not 

apply overseas. Land leases are not 

addressed in this rule because land 

leases are outside the scope of the FAR 

and DFARS. 

2. Requirements 

Section 846 requires that, with some 

exceptions, photovoltaic devices 

provided under covered contracts 

comply with the Buy American statute. 

The Buy American statute requires, for 

use inside the United States, that 

manufactured articles, materials and 

supplies be manufactured in the United 

States, substantially all from articles, 

materials, or supplies mined, produced, 

or manufactured in the United States. 

When section 858 was enacted, it 

imposed basically the same 

requirement, requiring that any 

photovoltaic device installed under a 

covered contract be manufactured in the 

United States substantially all from 

articles, materials or supplies mined, 

produced, or manufactured in the 

United States, but no longer referenced 

the Buy American statute. 

3. Exceptions 

Because the requirement under 

section 858 was separated from the 

explicit application of the Buy 

American statute, the exceptions and 

waivers that apply to the Buy American 

statute no longer automatically applied 

to the restrictions of section 858, unless 

provided for and authorized by section 

858. Now that section 858 has been 

repealed, the following exceptions are 

again applicable: 

• Exceptions for domestic 

nonavailability and acquisitions in 

which the values of the photovoltaic 

devices does not exceed the micropurchase threshold. 

• Public interest determination. The 

Buy American statute provides for 

individual or class determinations that 

application of the Buy American statute 

is inconsistent with the public interest. 

Through public interest class 

determinations, DoD does not apply the 

Buy American statute to (1) qualifying 

country end products; or (2) U.S.-made 

end products, if the World Trade 

Organization Government Procurement 

Agreement applies (i.e., the aggregate 

value of the photovoltaic devices to be 

utilized is $180,000 or more). In 

implementing section 846, this 

determination was applied to 

photovoltaic devices not acquired as 

end products. Section 858 only allowed, 

on a case-by-case basis, determinations 


sradovich on DSK3GMQ082PROD with PROPOSALS