Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 35879 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 201, 203, 204, 212, 213, 

217, 219, 222, 225, 233, 243, 252, and 

Appendix I to Chapter 2 

RIN 0750–AH55 

Defense Federal Acquisition 

Regulation Supplement: Title 41 

Positive Law Codification—Further 

Implementation (DFARS Case 2012– 

D003) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule to 

amend the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

conform statutory titles throughout the 

DFARS to the new Positive Law 

Codification of Title 41, United States 

Code, ‘‘Public Contracts.’’ 

DATES: June 15, 2012. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy G. Williams, telephone 571–371– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 76 FR 78874 on 

December 20, 2011. The comment 

period closed on February 21, 2012. One 

respondent submitted a public comment 

in response to the proposed rule. 

DoD is updating the historical names 

of the Acts in the DFARS (e.g., the 

‘‘Service Contract Act of 1965’’ is now 

the ‘‘Service Contract Labor Standards 

statute’’). A table providing the 

historical titles of the Acts, the present 

statutory citation, and the new titles of 

the statutes is being proposed under 

FAR case 2011–018 for inclusion at FAR 

1.110. That table will cover acts under 

both titles 40 and 41. Additionally, 

editorial changes are being made to 

conform to DFARS drafting 

conventions. 

Although there were no substantive 

changes to the meaning of the statutes, 

there were some changes in 

terminology. 

II. Discussion and Analysis 

One respondent submitted two edits, 

which have been incorporated in the 

final rule at 225.1101(2)(i)(C) and 

225.7000(b). 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

DoD certifies that this final rule will 

not 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., 

because the rule does not change any 

policies or requirements. It just changes 

and updates references and terminology. 

Additionally, the proposed rule 

published at 76 FR 78874 on December 

20, 2011, invited comments from small 

businesses and other interested parties. 

No comments were received from small 

entities on the affected DFARS subparts 

with regard to small businesses. 

Therefore, a Final Regulatory Flexibility 

Analysis has not been performed. 

V. Paperwork Reduction Act 

The rule does not impose any new 

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 201, 

203, 204, 212, 213, 217, 219, 222, 225, 

233, 243, 252, and Appendix I to 

Chapter 2 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 201, 203, 204, 

212, 213, 217, 219, 222, 225, 233, 243, 

252, and 48 CFR chapter 2 appendix I 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 201, 204, 212, 213, 217, 219, 225, 

243, 252, and 48 CFR chapter 2 

appendix I continues to read as follows: 

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

chapter 1. 

PART 201—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

201.107 [Amended] 

■ 2. Section 201.107 introductory text is 

amended by removing ‘‘In accordance 

with section 29 of the Office of Federal 

Procurement Policy Act (41 U.S.C. 

1304)’’ and adding ‘‘In accordance with 

41 U.S.C. 1304’’ in its place. 

201.304 [Amended] 

■ 3. Section 201.304 is amended in 

paragraph (2) introductory text in by 

removing ‘‘In accordance with section 

29 of the Office of Federal Procurement 

Policy Act (41 U.S.C. 1304)’’ and adding 

‘‘In accordance with 41 U.S.C. 1304’’ in 

its place. 

PART 203—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 4. The authority citation for 48 CFR 

part 203 is revised to read as follows: 

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

chapter 1 

203.070 [Amended] 

■ 5. Section 203.070 is amended in 

paragraph (f) by removing ‘‘Antikickback Act’’ and adding ‘‘Kickbacks’’ 

in its place. 

203.502–2 [Amended] 

■ 6. Section 203.502–2 is amended in 

paragraph (h) introductory text by 

removing ‘‘under the Anti-Kickback Act 

of 1986’’ and adding ‘‘under 41 U.S.C. 

chapter 87, Kickbacks’’ in its place. 

PART 204—ADMINISTRATIVE 

MATTERS 

204.1202 [Amended] 

■ 7. Section 204.1202 is amended— 

■ a. In paragraph (2)(v), by removing 

‘‘Buy American Act—Balance of 

Payments Program Certificate’’ and 

adding ‘‘Buy American—Balance of 

Payments Program Certificate’’ in its 

place; and 

■ b. In paragraph (2)(ix), by removing 

‘‘Buy American Act—Free Trade 

Agreements—Balance of Payments 

Program Certificate’’ and adding ‘‘Buy 

American—Free Trade Agreements— 

Balance of Payments Program 

Certificate’’ in its place. 

■ 8. In 204.7003, revise paragraph 

(a)(3)(vi) to read as follows: 

204.7003 Basic PII number. 

(a) * * * 

(3) * * * 

(vi) Contracting actions placed with or 

through other Government departments 

or agencies or against contracts placed 


srobinson on DSK4SPTVN1PROD with RULES
35880 Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 

by such departments or agencies outside 

the DoD (including actions from 

nonprofit agencies employing people 

who are blind or severely disabled 

(AbilityOne), and the Federal Prison 

Industries (UNICOR))—F 

* * * * * 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

212.301 [Amended] 

■ 9. Section 212.301 is amended— 

■ a. In paragraph (f)(i)(A) by removing 

‘‘Buy American Act—Balance of 

Payments Program Certificate’’ and 

adding ‘‘Buy American—Balance of 

Payments Program Certificate’’ in its 

place; and 

■ b. In paragraph (f)(i)(C), removing 

‘‘Buy American Act—Free Trade 

Agreements—Balance of Payments 

Program Certificate’’ and adding ‘‘Buy 

American—Free Trade Agreements— 

Balance of Payments Program 

Certificate’’ in its place. 

212.7102–1 [Amended] 

■ 10. Section 212.7102–1 is amended in 

paragraph (e)(2) by removing ‘‘section 

26 of the Office of Federal Procurement 

Policy Act (41 U.S.C. 1502)’’ and adding 

‘‘41 U.S.C. 1502’’ in its place. 

PART 213—SIMPLIFIED ACQUISITION 

PROCEDURES 

213.301 [Amended] 

■ 11. Section 213.301 is amended in 

paragraph (1) by removing ‘‘Continental 

Shelf lands’’ and adding ‘‘Continental 

Shelf’’ in its place. 

213.302–5 [Amended] 

■ 12. Section 213.302–5 is amended— 

■ a. In the first sentence of paragraph (d) 

introductory text by removing ‘‘Buy 

American Act—Supplies’’ and adding 

‘‘Buy American—Supplies’’ in its place 

and in the second sentence, removing 

‘‘Buy American Act’’ and adding ‘‘Buy 

American statute’’ in its place; and 

■ b. Removing ‘‘Act’’ from paragraphs 

(d)(i) and (d)(ii). 

PART 217—SPECIAL CONTRACTING 

METHODS 

217.7000 [Amended] 

■ 13. Section 217.7000 is amended by 

removing ‘‘Section 201(c) of the Federal 

Property and Administrative Services 

Act of 1949, 63 Stat. 384, as amended 

(40 U.S.C. 481(c))’’ and adding ‘‘40 

U.S.C. 503’’ in its place. 

PART 219—SMALL BUSINESS 

PROGRAMS 

219.703 [Amended] 

■ 14. Section 219.703 is amended in 

paragraph (a) by removing ‘‘the JavitsWagner-O’Day Act (41 U.S.C. 8502– 

8504)’’ and adding ‘‘41 U.S.C. chapter 

85’’ in its place. 

PART 222—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

■ 15. The authority citation for 48 CFR 

part 222 is revised to read as follows: 

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

chapter 1. 

Subpart 222.3—[Amended] 

■ 16. Subpart 222.3 is amended in the 

subpart heading by removing ‘‘Act’’. 

222.302 [Amended] 

■ 17. Section 222.302 is amended in the 

introductory text by removing ‘‘Act’’. 

■ 18. Section 222.402–70 is amended by 

revising paragraph (a) introductory text 

and paragraphs (b), (c), (d), and (f) to 

read as follows: 

222.402–70 Installation support contracts. 

(a) Apply both the Service Contract 

Labor Standards statute and the 

Construction Wage Rate Requirements 

statute to installation support contracts 

if— 

* * * * * 

(b) Service Contract Labor Standards 

statute coverage under the contract. 

Contract installation support 

requirements, such as plant operation 

and installation services (i.e., custodial, 

snow removal, etc.) are subject to the 

Service Contract Labor Standards. 

Apply Service Contract Labor Standards 

clauses and minimum wage and fringe 

benefit requirements to all contract 

service calls or orders for such 

maintenance and support work. 

(c) Construction Wage Rate 

Requirements statute coverage under 

the contract. Contract construction, 

alteration, renovation, painting, and 

repair requirements (i.e., roof shingling, 

building structural repair, paving 

repairs, etc.) are subject to the 

Construction Wage Rate Requirements 

statute. Apply Construction Wage Rate 

Requirements clauses and minimum 

wage requirements to all contract 

service calls or orders for construction, 

alteration, renovation, painting, or 

repairs to buildings or other works. 

(d) Repairs versus maintenance. Some 

contract work may be characterized as 

either Construction Wage Rate 

Requirements painting/repairs or 

Service Contract Labor Standards 

maintenance. For example, replacing 

broken windows, spot painting, or 

minor patching of a wall could be 

covered by either the Construction Wage 

Rate Requirements or the Service 

Contract Labor Standards. In those 

instances where a contract service call 

or order requires construction trade 

skills (i.e., carpenter, plumber, painter, 

etc.), but it is unclear whether the work 

required is Service Contract Labor 

Standards maintenance or Construction 

Wage Rate Requirements painting/ 

repairs, apply the following rules: 

(1) Individual service calls or orders 

which will require a total of 32 or more 

work hours to perform shall be 

considered to be repair work subject to 

the Construction Wage Rate 

Requirements. 

(2) Individual service calls or orders 

which will require less than 32 work 

hours to perform shall be considered to 

be maintenance subject to the Service 

Contract Labor Standards. 

(3) Painting work of 200 square feet or 

more to be performed under an 

individual service call or order shall be 

considered to be subject to the 

Construction Wage Rate Requirements 

statute regardless of the total work hours 

required. 

* * * * * 

(f) Contracting officers may not avoid 

application of the Construction Wage 

Rate Requirements statute by splitting 

individual tasks between orders or 

contracts. 

■ 19. The 222.404 section heading is 

revised to read as follows: 

222.404 Construction Wage Rate 

Requirements statute wage determinations. 

* * * * * 

■ 20. Section 222.406–1 is amended by 

revising paragraph (b)(1)(A)(1), and in 

paragraph (b)(1)(A)(2) by removing the 

word ‘‘Act’’ and adding ‘‘statute’’ in its 

place. 

The revision reads as follows: 

222.406–1 Policy. 

* * * * * 

(b) * * * 

(1) * * * 

(A) * * * 

(1) Construction Wage Rate 

Requirements statute. 

* * * * * 

222.406–8 [Amended] 

■ 21. Section 222.406–8 is amended in 

paragraph (c)(4)(A) introductory text by 

removing ‘‘Contract Work Hours and 

Safety Standards Act (CWHSSA)’’ and 

adding ‘‘Contract Work Hours and 

Safety Standards (CWHSS) statute’’ in 

its place. 


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Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 35881 

222–406–9 [Amended] 

■ 22. Section 222.406–9 is amended in 

paragraph (a) by removing ‘‘Davis-Bacon 

or CWHSSA’’ and adding ‘‘Construction 

Wage Rate Requirements or CWHSS 

statute’’ in its place. 

■ 23. Section 222.406–13 is amended— 

■ a. In the introductory text by 

removing ‘‘Davis-Bacon Act and the 

CWHSSA’’ and adding ‘‘Construction 

Wage Rate Requirements statute and the 

CWSS statute’’ in its place; 

■ b. By revising paragraphs (7)(i) and (ii) 

and (8)(i) and (ii); 

■ c. In paragraph (9) introductory text 

by removing ‘‘CWHSSA’’ and adding 

‘‘CWSS statute’’ in its place; 

■ d. In paragraph (9)(i), by adding ‘‘; 

and’’ to the end; and 

■ e. By revising paragraphs (10)(i) and 

(ii). 

The revisions read as follows: 

222.406–13 Semiannual enforcement 

reports. 

* * * * * 

(7) * * * 

(i) Construction Wage Rate 

Requirements statute; and 

(ii) CWSS statute; 

(8) * * * 

(i) Construction Wage Rate 

Requirements statute; and 

(ii) CWHSS statute; 

* * * * * 

(10) * * * 

(i) Construction Wage Rate 

Requirements statute; 

(ii) CWSS statute; 

* * * * * 

Subpart 222.10—Service Contract 

Labor Standards 

■ 24. The subpart 222.10 heading is 

revised as set forth above. 

Subpart 222.14—Employment of 

Workers with Disabilites 

■ 25. The subpart 222.14 heading is 

revised to read as set forth above. 

PART 225—FOREIGN ACQUISITION 

225.003 [Amended] 

■ 26. Section 225.003 is amended in 

paragraphs (4) and (11) by removing 

‘‘Act’’ each time it appears. 

Subpart 225.1—Buy American— 

Supplies 

■ 27. The subpart 225.1 is revised to 

read as set forth above. 

225.103 [Amended] 

■ 28a. Section 225.103 is amended— 

■ a. In paragraph (a)(i)(B) by removing 

‘‘Buy American Act’’ and adding ‘‘Buy 

American statute’’ in its place; and 

■ b. In paragraph (a)(ii)(A) introductory 

text by removing ‘‘Subpart 225.5’’ and 

adding ‘‘subpart 225.5’’ in its place and 

by removing ‘‘Buy American Act’’ and 

adding ‘‘Buy American statute’’ in its 

place. 

Subpart 225.2—Buy American— 

Construction Materials 

■ 28b. The subpart 225.2 heading is 

revised to read as set forth above. 

225.502 [Amended] 

■ 29. Section 225.502 is amended— 

■ a. In paragraphs (c) introductory text 

and (c)(iii)(C), by removing ‘‘Buy 

American Act’’ and adding ‘‘Buy 

American statute’’ in its place; 

■ b. In paragraph (c)(i)(A), by removing 

‘‘Buy American Act’’ and ‘‘Buy 

American Act or Balance of Payments 

Program’’ and adding ‘‘Buy American 

statute’’ and ‘‘Buy American or Balance 

of Payments Program’’, respectively, in 

its place; and 

■ c. In paragraphs (c)(i)(B), (c)(ii)(C), 

(c)(ii)(D), and (c)(iii)(A), by removing 

‘‘Act’’. 

225.872–1 [Amended] 

■ 30. Section 225.872–1 is amended in 

paragraphs (a) introductory text and (b) 

introductory text by removing ‘‘Buy 

American Act’’ and adding ‘‘Buy 

American statute’’ in its place. 

225.872–4 [Amended] 

■ 31. Section 225.872–4 is amended by 

removing ‘‘Buy American Act’’ and 

adding ‘‘Buy American statute’’ in its 

place. 

225.1101 [Amended] 

■ 32. Section 225.1101 is amended— 

■ a. In paragraphs (1)(i), (2)(i) 

introductory text, (2)(i)(D)(2), (3)(i), 

(3)(iii), (10)(i), (11)(i) introductory text, 

and (11)(iii), by removing ‘‘Act’’ each 

time it appears; and 

■ b. In paragraph (2)(i)(C), removing 

‘‘Act’’ and adding ‘‘statute’’ in its place. 

225.7000 [Amended] 

■ 33. Section 225.7000 is amended in 

paragraph (b) by removing ‘‘Buy 

American Act’’ and adding ‘‘Buy 

American statute’’ in its place. 

225.7017–3 [Amended] 

■ 34. Section 225.7017–3 is amended in 

paragraph (a) by removing ‘‘Buy 

American Act’’ and adding ‘‘Buy 

American statute’’ in its place. 

PART 233—PROTESTS, DISPUTES, 

AND APPEALS 

■ 35. The authority citation for 48 CFR 

part 233 is revised to read as follows: 

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

chapter 1. 

233.204–70 [Amended] 

■ 36. Section 233.204–70 is amended by 

removing ‘‘the Contract Disputes Act of 

1978’’ and adding ‘‘41 U.S.C. chapter 71 

(Contract Disputes)’’ in its place. 

PART 243—CONTRACT 

MODIFICATIONS 

■ 37. Section 243.204–71 is amended in 

paragraph (c) in the first sentence by 

removing ‘‘the Contract Disputes Act of 

1978 (41 U.S.C. 7103)’’ and adding ‘‘41 

U.S.C. 7103, Disputes’’ in its place, and 

in the second sentence, removing 

‘‘Contract Disputes Act’’ and adding 

‘‘Contract Disputes statute’’ in its place 

and removing ‘‘Subpart’’ and adding 

‘‘subpart’’ in its place. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.204–7007 [Amended] 

■ 38. Section 252.204–7007 is amended 

by removing the clause date ‘‘(SEP 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in paragraphs (d)(2)(ii) and 

(d)(2)(vi) by removing ‘‘Act’’. 

252.212–7001 [Amended] 

■ 39. Section 252.212–7001 is amended 

by— 

■ a. Removing the clause date ‘‘(SEP 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ b. In paragraphs (b)(4), (b)(22), and 

(c)(4), removing ‘‘(SEP 2011)’’ and 

adding ‘‘(JUN 2012)’’ in its place; 

■ c. In paragraphs (b)(6)(i) by removing 

‘‘Act’’ and by removing ‘‘(OCT 2011)’’ 

and adding ‘‘(JUN 2012)’’ in its place; 

■ d. In paragraph (b)(8) by removing 

‘‘(JAN 2011)’’ and adding ‘‘(JUN 2012)’’ 

in its place; and 

■ e. In paragraph (b)(13)(i) by removing 

‘‘(MAY 2012)’’ and adding ‘‘(JUN 2012)’’ 

in its place. 

■ f. In paragraph (b)(16)(i) by removing 

‘‘(MAY 2012)’’ and adding ‘‘(JUN 2012)’’ 

in its place; and 

■ g. In paragraphs (b)(16)(ii) through (iv) 

by removing ‘‘(OCT 2011)’’ and adding 

‘‘(JUN 2012)’’ in its place; 

■ h. In paragraphs (b)(16)(v) and (vi), by 

removing ‘‘(MAY 2012)’’ and adding 

‘‘(JUN 2012)’’ in its place; and 

■ i. In paragraphs (b)(18) and (c)(1), 

removing ‘‘(AUG 2011)’’ and adding 

‘‘(JUN 2012)’’ in its place. 

252.212–7002 [Amended] 

■ 40. Section 252.212–7002 is amended 

by removing the clause date ‘‘(JUN 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in the definition 


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35882 Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 

‘‘Nontraditional defense contractor’’, 

paragraph (1), removing ‘‘Section 26 of 

the Office of Federal Procurement 

Policy Act (41 U.S.C. section 1502)’’ and 

adding ‘‘41 U.S.C. section 1502’’ in its 

place. 

252.217–7002 [Amended] 

■ 41. Section 252.217–7002 is amended 

by removing the clause date ‘‘(DEC 

1991)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in paragraph (a), removing 

‘‘Section 201(c) of the Federal Property 

and Administrative Services Act of 

1949, 63 Stat. 384 (40 U.S.C. 481(c))’’ 

and adding ‘‘40 U.S.C. 503’’ in its place. 

252.219–7003 [Amended] 

■ 42. Section 252.219–7003 is 

amended— 

■ a. By removing the clause date ‘‘(SEP 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ b. In paragraph (e) introductory text 

by removing ‘‘Section 831’’ and adding 

‘‘section 831’’ in its place; and 

■ c. In paragraph (e)(1), by removing 

‘‘handicapped’’ and adding ‘‘disabled’’ 

in its place. 

■ 43. Section 252.225–7000 is amended: 

■ a. By revising the section heading; 

■ b. By removing ‘‘Act’’ from the 

provision title; 

■ c. By removing the clause date ‘‘(DEC 

2009)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ d. In paragraph (b)(2) by removing 

‘‘Act’’ and adding’’ statute’’ in its place; 

and 

■ e. In paragraph (c)(1) introductory text 

by removing ‘‘Act’’. 

The revision reads as follows: 

252.225–7000 Buy American Statute— 

Balance of Payments Program Certificate. 

* * * * * 

252.225–7001 [Amended] 

■ 44. Section 252.225–7001 is 

amended— 

■ a. By revising the section heading; 

■ b. By removing ‘‘Act’’ from the 

provision title; 

■ c. By removing the clause date ‘‘(OCT 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ d. In paragraph (a), in the definition 

of ‘‘Commercially available off-the-shelf 

(COTS) item’’, paragraph (ii), by 

removing ‘‘section 3 of the Shipping Act 

of 1984 (46 U.S.C. 40102)’’ and adding 

‘‘46 U.S.C. 40102(4)’’ in its place; 

■ d. In paragraph (a), in the definition 

of ‘‘Domestic end product’’, paragraph 

(ii)(A)(2), by removing ‘‘Act’’ and 

adding ‘‘statute’’ in its place; 

■ e. In paragraph (b) in the first 

sentence, by removing ‘‘the Buy 

American Act (41 U.S.C chapter 83)’’ 

and adding ‘‘, Buy American’’ in its 

place and in the second sentence, 

removing ‘‘Act’’ and adding ‘‘statute’’ in 

its place; and 

■ f. In paragraph (c), by removing ‘‘Act’’. 

252.225–7009 [Amended] 

■ 45. Section 252.225–7009 is amended 

by removing the clause date ‘‘(JAN 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place; and in paragraph (a)(4)(ii), 

removing ‘‘section 3 of the Shipping Act 

of 1984 (46 U.S.C. App 1702)’’ and 

adding ‘‘46 U.S.C. 40102(4)’’ in its 

place. 

252.225–7013 [Amended] 

■ 46. Section 252.225–7013 is 

amended— 

■ a. By removing the clause date ‘‘(DEC 

2009)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ b. In paragraph (a), by removing the 

numerical designations (1) through (4) 

from the definitions; 

■ c. In paragraph (a), in the definition 

‘‘Eligible product’’, paragraph (ii), by 

removing ‘‘Bahrainian end product or a 

Moroccan end product, as defined in the 

Buy American Act’’ and adding 

‘‘Bahrainian end product, a Moroccan 

end product, or a Peruvian end product, 

as defined in the Buy American’’ in its 

place, and in paragraph (iii), by 

removing ‘‘Act’’; and 

■ d. In paragraph (a), in the definition 

‘‘Qualifying country’’ and ‘‘qualifying 

country end product’’, removing ‘‘Act’’ 

each time it appears. 

252.225–7021 [Amended] 

■ 47. Section 252.225–7021 is amended 

by removing the clause date ‘‘(MAY 

2012)’’ and adding ‘‘(JUN 2012)’’ in its 

place, and in paragraph (a), in the 

definition ‘‘Commercially available offthe-shelf (COTS) item’’, paragraph (ii), 

by removing ‘‘section 4 of the Shipping 

Act of 1984 (46 U.S.C. 40102)’’ and 

adding ‘‘46 U.S.C. 40102(4)’’ in its 

place. 

252.225–7035 [Amended] 

■ 48. Section 252.225–7035 is 

amended— 

■ a. By revising the section heading; 

■ b. In the clause title by removing 

‘‘Act’’; 

■ c. By removing the clause date ‘‘(DEC 

2010)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ d. In paragraphs (a) and (b)(2) by 

removing ‘‘Act’’; 

■ e. In introductory paragraph (c)(1), 

removing ‘‘Buy American Act’’ and 

adding ‘‘Buy American’’ in its place; 

■ f. In Alternate II, by removing the 

clause date ‘‘(DEC 2010)’’ and adding 

‘‘(JUN 2012)’’ in its place; and in 

Alternate II, paragraph (b)(2), removing 

‘‘Act’’; and 

■ g. In Alternate III, removing the clause 

date ‘‘(DEC 2010)’’ and adding ‘‘(JUN 

2012)’’ in its place; and in Alternate III, 

paragraphs (a) and (b)(2), removing 

‘‘Act’’. 

The revision reads as follows: 

252.225–7035 Buy American—Free Trade 

Agreements—Balance of Payments 

Program Certificate. 

* * * * * 

■ 49. Section 252.225–7036 is 

amended— 

■ a. By revising the section heading; 

■ b. In the clause title by removing 

‘‘Act’’; 

■ c. By removing the clause date ‘‘(MAY 

2012)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ c. In paragraph (a), in the definition 

‘‘Commercially available off-the-shelf 

(COTS) item’’, paragraph (ii), by 

removing ‘‘section 3 of the Shipping Act 

of 1984 (46 U.S.C. 40102)’’ and adding 

‘‘46 U.S.C. 40102(4)’’ in its place; 

■ d. In paragraph (a), in the definition 

‘‘Domestic end product’’, paragraph 

(ii)(A)(2), by removing ‘‘Act’’ and 

adding ‘‘statute’’ in its place; 

■ e. In paragraph (c) by removing ‘‘Act’’; 

and 

■ f. In Alternates I, II, and III, by 

removing the clause date ‘‘(OCT 2011)’’ 

and adding ‘‘(JUN 2012)’’ in its place 

and in paragraph (c), removing ‘‘Act’’. 

The revision reads as follow: 

252.225–7036 Buy American—Free Trade 

Agreements—Balance of Payments 

Program. 

* * * * * 

252.225–7044 [Amended] 

■ 50. Section 252.225–7044 is amended 

by removing the clause date ‘‘(DEC 

2010)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in paragraph (a), in the 

definition ‘‘Commercially available offthe-shelf (COTS) item’’, paragraph (2), 

by removing ‘‘section 3 of the Shipping 

Act of 1984 (46 U.S.C. 40102)’’ and 

adding ‘‘46 U.S.C. 40102(4)’’ in its 

place. 

252.227–7037 [Amended] 

■ 51. Section 252.225–7037 is 

amended— 

■ a. By removing the clause date ‘‘(APR 

2012)’’ and adding ‘‘(JUN 2012)’’ in its 

place; 

■ b. In paragraph (e)(3), by removing 

‘‘the Contract Disputes Act of 1978 (41 

U.S.C. 7101)’’ and adding ‘‘41 U.S.C. 

7101, Contract Disputes’’ in its place; 

and 

■ c. In paragraph (g)(2)(iv), removing 

‘‘Act’’ and adding ‘‘statute’’ in its place. 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 116 / Friday, June 15, 2012 / Rules and Regulations 35883 

252.227–7038 [Amended] 

■ 52. Section 252.225–7038 is amended 

by removing the clause date ‘‘(DEC 

2007)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in paragraph (l)(2)(ii), by 

removing ‘‘Act’’ and adding ‘‘statute’’ in 

its place. 

252.244–7001 [Amended] 

■ 53. Section 252.244–7001 is amended 

by removing the clause date ‘‘(MAY 

2011)’’ and adding ‘‘(JUN 2012)’’ in its 

place and in paragraph (c)(17), by 

removing ‘‘the Anti-Kickback Act’’ and 

adding ‘‘41 U.S.C. chapter 87, 

Kickbacks’’ in its place. 

■ 54. In appendix I to chapter 2, section 

I–101.4 is revised to read as follows: 

Appendix I to Chapter 2—Policy and 

Procedures for the DOD Pilot MentorProtege Program 

* * * * * 

I–101.4 Severely disabled individual. 

An individual who has a physical or 

mental disability which constitutes a 

substantial handicap to employment and 

which, in accordance with criteria prescribed 

by the Committee for Purchase from People 

Who Are Blind or Severely Disabled 

established by the first section of the Act of 

June 25, 1938 (41 U.S.C. 8502), is of such a 

nature that the individual is otherwise 

prevented from engaging in normal 

competitive employment. 

* * * * * 

[FR Doc. 2012–14259 Filed 6–14–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 216, 225, and 252 

RIN 0750–AH28 

Defense Federal Acquisition 

Regulation Supplement; Contractors 

Performing Private Security Functions 

(DFARS Case 2011–D023) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, with 

changes, an interim rule amending the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to implement 

those sections of several National 

Defense Authorization Acts which 

establish minimum processes and 

requirements for the selection, 

accountability, training, equipping, and 

conduct of personnel performing private 

security functions under DoD contracts. 

DATES: Effective Date: June 15, 2012. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, telephone 571–372– 

6098. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The interim rule implemented the 

legislation by establishing (1) 

Regulations addressing the selection, 

training, equipping, and conduct of 

personnel performing private security 

functions in areas of contingency 

operations, complex contingency 

operations, or other military operations 

or exercises that are designated by the 

combatant commander, (2) a contract 

clause, and (3) remedies. DoD published 

the interim rule in the Federal Register 

at 76 FR 52133 on August 19, 2011, to 

implement section 862, as amended, of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2008. 

Section 862 was amended by section 

853 of the NDAA for FY 2009 and 

sections 831 and 832 of the NDAA for 

FY 2011. In addition, the DoD 

Instruction addressing private Security 

Contractors (DoDI 3020.50) was revised 

on August 1, 2011, and the final rule to 

implement section 862 of the NDAA for 

FY 2008, as amended, 32 CFR part 159, 

Private Security Contractors Operating 

in Contingency Operations, was 

published in the Federal Register on 

August 11, 2011 (76 FR 49651). Public 

comments on the final rule at 32 CFR 

part 159 had been solicited by 

publication of an interim rule on July 

17, 2009. 

II. Discussion and Analysis of the 

Public Comments 

Three respondents submitted 

comments on the interim rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Summary of Significant Changes 

The following significant changes to 

the DFARS are being made by this rule: 

• The definition of ‘‘private security 

functions’’ in the clause at DFARS 

225.370–3 was revised to conform to the 

DoDI, and limit the definition to the 

specified criteria. 

• The types of active, non-lethal 

countermeasures that must be reported 

when used has been added at DFARS 

225.370–4(c)(1)(iv)(E) and 252.225– 

7039(b)(1)(iv)(E). 

• The types of Governmentauthorized investigations with which 

the contractor is required to cooperate 

are more narrowly described in order to 

conform to the limitations in the statute. 

Changes have been made to DFARS 

225.370–4(c)(3) and the clause at 

DFARS 252.225–7039(b)(3). In addition, 

a definition of ‘‘full cooperation’’ has 

been added to the clause at DFARS 

252.225–7039 to allay concerns about 

waiver of attorney-client privilege. 

• The remedies at DFARS 225.370– 

5(a) have been revised to remove 

paragraph (a)(4), a discussion of the 

right to terminate for default, because 

this right is already covered by the 

contract termination clauses. 

• The applicability of the rule 

(DFARS 225.370–2, 225.370–4(b), and 

225.370–6) and references to the title of 

DoDI 3020.50 at DFARS 225.370–4 and 

252.225–7039(b)(2)(i)) have been 

updated to conform to the revised DoDI 

3020.50. 

B. Analysis of Public Comments 

1. Definition of Private Security 

Functions 

Comment: Two respondents 

commented that the definition of 

‘‘private security functions’’ was (a) too 

broad and (b) inconsistent among the 

DoDI, the DFARS text, and the clause at 

DFARS 252.225–7039, Contractors 

Performing Private Security Functions. 

Response: The definition of ‘‘private 

security functions’’ has been revised to 

limit the definition to the specified 

criteria all inclusive (rather than just 

‘‘including’’ the criteria), consistent 

with the DoDI. The essence of the 

definition cannot be changed 

substantially in the DFARS from that in 

the controlling DoDI. 

2. The Contractor’s Requirement To 

Ensure Compliance of Contractor 

Personnel Performing Private Security 

Functions 

Comment: One respondent stated that 

the requirement for prime contractors to 

ensure that personnel performing 

private security functions comply with 

numerous administrative and reporting 

requirements and are briefed on and 

understand various enumerated laws, 

regulations, orders, directives, 

instructions, and rules related to the 

private security function imposes 

‘‘untenable oversight, policing, and 

enforcement obligations,’’ particularly 

for non-private security function prime 

contractors that subcontract with a 

private security function provider. The 

respondent recommended that the 

prime contractor’s obligation be limited 

to the administrative functions of 

passing the requirements on to the 

private security function provider and 

conducting audits or other 

administrative review functions to 

verify compliance. 

Response: No change has been made 

in the final rule because the law, at 


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