[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Rules and Regulations]
[Pages 11745-11747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02743]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 212, 237, and 252

[Docket DARS-2023-0016]
RIN 0750-AL07


Defense Federal Acquisition Regulation Supplement: Transfer and 
Adoption of Military Animals (DFARS Case 2020-D021)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2020.

DATES: Effective February 15, 2024.

FOR FURTHER INFORMATION CONTACT: Kimberly R. Ziegler, telephone 703-
901-3176.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule in the Federal Register at 88 FR 
25606 on April 27, 2023, to implement section 372(f) of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020 (Pub. L. 
116-92). Section 372(f), as implemented at 10 U.S.C. 2387 (previously 
10 U.S.C. 2410r), requires DoD contracting officers to include a clause 
in contracts when contract working dogs are provided under the 
contract. 10 U.S.C. 2387 requires the transfer of a contract working 
dog, after the service life of the dog has terminated, to the United 
States Air Force, 341st Training Squadron. The preamble to the proposed 
rule contained a detailed description of the treatment and care to be 
provided for a contract working dog whose service life has terminated 
and the conditions under which that determination may be made.
    Three respondents submitted comments on the proposed rule.

II. Discussion and Analysis.

    DoD reviewed the public comments in the development of the final 
rule. A discussion of the comments and the changes made to the rule as 
a result of those comments is provided, as follows:

A. Summary of Significant Changes from the Proposed Rule.

    There are no significant changes from the proposed rule.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: Some respondents support the rule.
    Response: The support is noted.
2. Application to All Contracts for Military Working Dogs
    Comment: Some respondents voiced concerns that the rule will only 
apply to contracts at or below the simplified acquisition threshold 
(SAT).
    Response: The rule applies to all contracts for contract working 
dogs, as defined in 10 U.S.C. 2387(c), including those valued at or 
below the SAT. Section III of the preamble for the proposed rule 
provides the legal basis for applying the rule to contracts valued at 
or below the SAT and for commercial services and products, including 
commercially available off-the-shelf (COTS) items.
3. Replacement vs. Termination of Contract Working Dogs
    Comment: Some respondents were concerned that a contract working 
dog would be replaced instead of retired under a service contract, 
avoiding the termination and transfer of the dog.
    Response: DoD generally contracts for a team consisting of the 
working dog and handler under a service contract. Service contracts 
include standards of performance for the team. If the team cannot 
perform to the standard, the contractor is generally expected to 
replace the team with a team that can perform to the standard. The 
statute recognizes that the inability to perform to the standard in an 
individual DoD contract does not mean that a dog has met the conditions 
for retirement or termination. Specifically, the contract working dog 
service life would continue if the dog could be utilized on another 
Federal Government contract, which could have different standards than 
a DoD contract.
    Comment: A respondent expressed concerns that the proposed rule 
explanation of the impact characterized the need for a contracting 
officer to make a determination as ``rare'' because it may be assumed 
that a dog's service life would never be terminated.
    Response: As noted in section IV of the preamble for the proposed 
rule, DoD does not expect the impact of the rule to be significant 
because the number of acquisitions that include contract working dogs 
and handlers are few in number. If the contracting officer's 
representative or requiring activity identifies a non-performing 
working dog and handler, an assessment will be conducted by Government 
experts to

[[Page 11746]]

determine if the conditions at 10 U.S.C. 2387(b) are met before a 
recommendation is provided to the contracting officer.
4. DoD Handlers
    Comment: Some respondents asserted that contract working dogs are 
paired with military and DoD civilian handlers and that DoD's statement 
to the contrary, provided in the preamble for the proposed rule, is 
inaccurate. The respondents refer to DoD Inspector General (DoDIG) 
report 2018-081, entitled ``The Army's Tactical Explosive Detection Dog 
Disposition Process from 2011 to 2014.''
    Response: This rule addresses contract working dogs that are not 
Government-owned property (see 10 U.S.C. 2387(c)). Contract working 
dogs addressed by this rule are not paired with military personnel or 
DoD civilian employee handlers. The respondent's references to DoDIG 
report 2018-081 seem to indicate a misunderstanding of the difference 
between a contract working dog and those working dogs procured as 
Government property under the military working dog and Tactical 
Explosive Detection Dog (TEDD) programs. The TEDD program authorized 
the procurement of a working dog and provided that a contractor, rather 
than the Government, train, house, and care for the dog through 
certification under the military working dog standards. The Government 
owned these military working dogs and was responsible for their 
disposition in accordance with 10 U.S.C. 2583.
5. Penalty for Noncompliance
    Comment: Some respondents requested that the final rule include a 
penalty for noncompliance.
    Response: The statute does not provide a specific penalty for 
contractor noncompliance; however, contracting officers may use 
existing contracting regulations to enforce the terms of the contract.

C. Other Changes

    Text at DFARS contract clause 252.237-7027, Transfer and Adoption 
of Military Animals, is revised for clarity. At DFARS 237.7804, the 
prescription for the clause is also revised for clarity.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Services and Commercial Products, 
Including Commercially Available Off-the-Shelf (COTS) Items

    The contract clause at DFARS 252.237-7027, Transfer and Adoption of 
Military Animals, is prescribed at DFARS 237.7804 for use in 
solicitations and contracts, including solicitations and contracts 
using Federal Acquisition Regulation (FAR) part 12 procedures for 
commercial products and commercial services, that require the services 
of a contract working dog. Consistent with the analysis that DoD 
provided in the proposed rule with regard to the application of the 
requirements of section 372(f) of the NDAA for FY 2020, DoD has made 
the determination to apply the statute, as implemented in the clause at 
DFARS 252.237-7027, to contracts at or below the SAT and to the 
acquisition of commercial services, as defined at FAR 2.101.

IV. Expected Impact of the Rule

    DoD does not expect the rule to have a significant impact on the 
public, because the need for a contracting officer to make a 
determination that a contract working dog has reached the end of its 
service life will be rare. Such acquisitions are few in number, and 
service contractors who provide contract working dogs and handlers are 
expected to replace dogs and handlers who are unable to perform to DoD 
standards. A contracting officer's representative (COR) would be 
responsible for monitoring contract performance and coordinating any 
replacement dog and handler requirements. If the COR or requiring 
activity identifies a non-performing working dog and handler, an 
assessment will be conducted by Government experts to determine if the 
conditions at 10 U.S.C. 2387(b) are met before a recommendation is 
provided to the contracting officer for action.

V. 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, as amended.

VI. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
Under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a major rule as defined by 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
and is summarized as follows:
    This final rule amends the Defense Federal Acquisition Regulation 
Supplement (DFARS) to implement 10 U.S.C. 2387, as amended by section 
372(f) of the National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2020 (Pub. L. 116-92). Under 10 U.S.C. 2387, DoD contracting 
officers are required to include a clause in contracts for contract 
working dog services.
    The objective of the rule is to implement the statutory 
requirements for terminating the service life of a contract working 
dog, when certain circumstances apply, and transferring the animal to 
the Department of the Air Force, 341st Training Squadron.
    There were no significant issues raised by the public in response 
to the initial regulatory flexibility analysis.
    This rule will apply to small entities providing contract working 
dog and handler services to DoD. The contract clause is prescribed for 
use in solicitations and contracts for such services, including those 
conducted under FAR part 12 procedures for the acquisition of 
commercial products and commercial services.
    Research conducted in the Contract Opportunities section of SAM.gov 
indicates that contract working dog and handler services are generally 
procured under North American Industry Classification System codes and 
product and service codes that provide for certain physical security 
and law enforcement services. Data obtained from the Federal 
Procurement Data System (FPDS) for FYs 2019, 2020, and 2021 indicate 
that DoD awards an average of 227 contract actions annually for these 
physical security and law enforcement services, which may include a 
requirement for a contract working dog and handler. Of the estimated 
227 awards, an average of approximately 72 awards are made annually to 
an estimated 52 unique

[[Page 11747]]

small entities. Neither FPDS nor SAM.gov provide data for the number of 
awards that are specific to the contract working dog and handler 
services; however, this analysis assumes all of the estimated awards 
and unique small entities may be impacted.
    The rule does not impose any new reporting, recordkeeping, or 
compliance requirements.
    There are no practical alternatives that will accomplish the 
objectives of the statute.

VIII. Paperwork Reduction Act

    This final 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 Part 212, 237, and 252

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 237, and 252 are amended as follows:

0
1. The authority citation for parts 212, 237, and 252 continues to read 
as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL 
SERVICES

0
2. Amend section 212.301 by adding paragraph (f)(xv)(E) to read as 
follows:


212.301   Solicitation provisions and contract clauses for the 
acquisition of commercial products and commercial services.

* * * * *
    (f) * * *
    (xv) * * *
    (E) Use the clause at 252.237-7027, Transfer and Adoption of 
Military Animals, as prescribed in 237.7804 to comply with 10 U.S.C. 
2387.
* * * * *

PART 237--SERVICE CONTRACTING

0
3. Add subpart 237.78 to read as follows:
Subpart 237.78--Transfer and Adoption of Military Animals
Sec.
237.7800 Scope of subpart.
237.7801 Definition.
237.7802 Policy.
237.7803 Procedures.
237.7804 Contract clause.

Subpart 237.78--Transfer and Adoption of Military Animals


237.7800   Scope of subpart.

    This subpart implements 10 U.S.C. 2387, which requires, under 
certain circumstances, the transfer of a contract working dog to the 
Department of Air Force, 341st Training Squadron, for veterinary 
screening and care in accordance with 10 U.S.C. 2583.


237.7801   Definition.

    As used in this subpart--
    Contract working dog means a dog that--
    (1) Performs a service for DoD pursuant to a contract; and
    (2) Is trained and kenneled by an entity that provides such a dog 
pursuant to such a contract.


237.7802   Policy.

    (a) In accordance with 10 U.S.C. 2387, DoD will transfer a contract 
working dog to the Department of the Air Force, 341st Training 
Squadron, for veterinary screening and care after the service life of 
the dog has terminated.
    (b) The service life of a contract working dog may be terminated 
if--
    (1) The final contractual obligation of the dog preceding transfer 
is with DoD; and
    (2) The dog cannot be used by another department or agency of the 
Federal Government due to age, injury, or performance.
    (c) A contract working dog that has reached the end of its service 
life will be transferred for care, reclassification as a military 
animal, and placement for adoption in accordance with 10 U.S.C. 2583.


237.7803   Procedures.

    Contracting officers, at the request of the requiring activity, may 
issue a determination that the service life of a contract working dog 
has terminated if the conditions in 237.7802(b) have been documented by 
the requiring activity.


237.7804   Contract clause.

    Use the clause at 252.237-7027, Transfer and Adoption of Military 
Animals, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial products and commercial services, that require the services 
of a contract working dog.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 252.237-7027 to read as follows:


252.237-7027   Transfer and Adoption of Military Animals.

    As prescribed in 237.7804, use the following clause:

Transfer and Adoption of Military Animals (Feb 2024)

    (a) Definition. As used in this clause--
    Contract working dog means a dog that--
    (1) Performs a service for DoD pursuant to a contract; and
    (2) Is trained and kenneled by an entity that provides such a 
dog pursuant to such a contract.
    (b) In accordance with 10 U.S.C. 2387, if the Contracting 
Officer determines that the service life of a contract working dog 
has terminated, the dog will be transferred to the Department of the 
Air Force, 341st Training Squadron, for veterinary screening and 
care, reclassification as a military animal, and placement for 
adoption in accordance with 10 U.S.C. 2583.
    (c) The service life of a contract working dog may be terminated 
if the Contracting Officer determines that--
    (1) The final contractual obligation of the dog preceding 
transfer is with DoD; and
    (2) The dog cannot be used by another department or agency of 
the Federal Government due to age, injury, or performance.


(End of clause)

[FR Doc. 2024-02743 Filed 2-14-24; 8:45 am]
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