34690 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Rules and Regulations 

Regulatory Flexibility Act 

The interim rule will not have a 

significant economic impact upon a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 605(b), and is 

deemed by the Commission to be a rule 

of agency practice that does not 

substantially affect the rights or 

obligations of non-agency parties 

pursuant to Section 804(3)(c) of the 

Congressional Review Act. 

Unfunded Mandates Reform Act of 

1995 

This rule will not cause State, local, 

or tribal governments, or the private 

sector, to spend $100,000,000 or more in 

any one year, and it will not 

significantly or uniquely affect small 

governments. No action under the 

Unfunded Mandates Reform Act of 1995 

is necessary. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (Subtitle E— 

Congressional Review Act) 

This rule is not a ‘‘major rule’’ as 

defined by Section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Subtitle E— 

Congressional Review Act), now 

codified at 5 U.S.C. 804(2). The rule will 

not result in an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices; or 

significant adverse effects on the ability 

of United States-based companies to 

compete with foreign-based companies. 

Moreover, this is a rule of agency 

practice or procedure that does not 

substantially affect the rights or 

obligations of non-agency parties, and 

does not come within the meaning of 

the term ‘‘rule’’ as used in Section 

804(3)(C), now codified at 5 U.S.C. 

804(3)(C). Therefore, the reporting 

requirement of 5 U.S.C. 801 does not 

apply. 

List of Subjects in 28 CFR Part 2 

Administrative practice and 

procedure, Prisoners, Probation and 

parole. 

The Interim Rule 

■ Accordingly, the U.S. Parole 

Commission is adopting the following 

amendment to 28 CFR part 2. 

PART 2—[AMENDED] 

■ 1. The authority citation for 28 CFR 

part 2 continues to read as follows: 

Authority: 18 U.S.C. 4203(a)(1) and 

4204(a)(6). 

■ 2. Amend § 2.80 by revising paragraph 

(o) to read as follows: 

§ 2.80 Guidelines for DC Code Offenders. 

* * * 

(o)(1) A prisoner who is eligible under 

the criteria of paragraph (o)(2) may 

receive a parole determination using the 

1987 guidelines of the former District of 

Columbia Board of Parole (hereinafter 

‘‘the 1987 guidelines’’). 

(2) A prisoner must satisfy the 

following criteria to obtain a 

determination using the 1987 

guidelines: 

(i) The prisoner committed the offense 

of conviction after March 3, 1985 and 

before August 5, 1998; 

(ii) The prisoner is not incarcerated as 

a parole violator; 

(iii) The prisoner received his initial 

hearing after August 4, 1998; and 

(iv) The prisoner does not have a 

parole effective date, or a presumptive 

parole date before January 1, 2010. 

(3) If an eligible prisoner applies for 

a hearing under the 1987 guidelines, a 

hearing examiner shall review the case 

on the record. If the hearing examiner 

recommends that the prisoner receive a 

parole effective date and the 

Commission concurs in the 

recommendation, the case shall not be 

scheduled for a hearing. If the hearing 

examiner does not recommend a parole 

effective date, the examiner shall 

recommend a hearing on an appropriate 

hearing docket. 

(4) At the hearing, the hearing 

examiner shall evaluate the prisoner’s 

case using the 1987 guidelines as if the 

prisoner were receiving an initial 

hearing shortly before the date of parole 

eligibility. If the prisoner has passed the 

rehearing date that the examiner 

determines is appropriate under the 

circumstances presented by the case, the 

examiner shall also evaluate the case 

under the rehearing guidelines. The 

Commission shall also use the former 

Board’s policy guidelines in making its 

determinations under this paragraph, 

according to the policy guideline in 

effect at the time of the prisoner’s 

offense. 

(5) If the Commission denies parole 

after the hearing, and the prisoner 

received a presumptive parole date 

under the parole determination that 

preceded the hearing under this 

paragraph, the prisoner shall not forfeit 

the presumptive parole date unless the 

presumptive date is rescinded for 

institutional misconduct, new criminal 

conduct, or for new adverse 

information. 

(6) Decisions resulting from hearings 

under this paragraph may not be 

appealed to the Commission. 

Dated: July 8, 2009. 

Isaac Fulwood, 

Chairman, United States Parole Commission. 

[FR Doc. E9–16969 Filed 7–16–09; 8:45 am] 

BILLING CODE 4410–31–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 

AGENCY: Office of the Under Secretary of 

Defense for Acquisition, Technology, 

and Logistics, DoD. 

ACTION: Interim final rule. 

SUMMARY: 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 during 

contingency 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 IFR 

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 part is of critical importance. It 

is being published as an Interim Final 

Rule because there is insufficient policy 

and guidance regulating the actions of 

DoD and other governmental PSCs and 

their movements in the operational area. 

It will procedurally close existing gaps 

in the oversight of Private Security 

Contractors (PSCs), ensure compliance 

with laws and regulations pertaining to 

Inherently Governmental functions, and 

ensure proper performance by armed 

contractors. The expansion of troops in 

Afghanistan will result in a 

corresponding increase in the number of 

PSCs performing in that Area of 

Operations. This part is required to 

ensure implementation of necessary 

guidance for all U.S.G. PSCs across the 

CENTCOM area of responsibility. 

Further, the publication of this IFR is 

required to meet the mandate of Section 

862 of the 2008 National Defense 

Authorization Act. The Congress has 

expressed continuing concern that 


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regulations for the oversight of PSCs are 

not yet in place. 

DATES: This rule is effective July 17, 

2009. Comments must be received by 

August 31, 2009. 

ADDRESSES: You may submit comments, 

identified by docket number and/or RIN 

number and title, by any of the 

following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Federal Docket Management 

System Office, 1160 Defense Pentagon, 

Washington, DC 20301–1160. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

Federal Register document. The general 

policy for comments and other 

submissions from members of the public 

is to make these submissions available 

for public viewing on the Internet at 

http://www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Taylor, (703) 692–3032. 

SUPPLEMENTARY INFORMATION: This 

Interim Final Rule is required to meet 

the mandate of Section 862 of the FY 

2008 National Defense Authorization 

Act. Section 862 of the 2008 NDAA 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; 

and 

(ii) 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 contract. 

This Interim Final Rule meets 

requirement (i). There will be a separate 

and subsequent Federal Register action 

to meet requirement (ii) to update the 

FAR. 

Executive Order 12866, ‘‘Regulatory 

Planning and 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; 

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 this Executive Order. 

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 Public Law 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 foreign-based 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 32 CFR Part 159 is added 

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: Public Law 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. 

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 for 

the limited purposes of this part. In 

such an instance, the standards 


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1Contractors 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. 

2Available at http://www.dtic.mil/whs/directives/ 

corres/pdf/302041p.pdf. 

3Published in Title 48 of the Code of Federal 

Regulations. 

4Published in Title 48 of the Code of Federal 

Regulations. 

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. 

(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, 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: a. 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 force; or b. Is created by 

definition of law. Under 10 U.S.C. 

101(a)(13)(B), a contingency operation 

exists if a military operation results in 

the (1) call-up to (or retention on) active 

duty of members of the uniformed 

Services under certain enumerated 

statutes (10 U.S.C. 688, 12301(a), 12302, 

12304, 12305, 12406, or 331–335); and 

(2) the call-up to (or retention on) active 

duty of members of the uniformed 

Services under any other (nonenumerated) provision of law during 

war or national emergency declared by 

the President or Congress. These may 

include humanitarian or peacekeeping 

operations or other military operations 

or exercises. 

Contractor. The contractor, 

subcontractor, grantee, or other party 

carrying out the covered contract. 

Covered contract. A DoD contract for 

performance of services in an area of 

contingency operations or a contract of 

a non-DoD Federal agency for 

performance of services in an area of 

combat 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. 

Also includes contracts or 

subcontracts funded under grants and 

sub-grants by a Federal agency for 

performance in an area of combat 

operations as designated by the 

Secretary of Defense. 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. 

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.1

(2) Any other activity for which 

personnel are required to carry weapons 

in the performance of their duties. For 

the DoD, DoDI Instruction 3020.41, 

‘‘Contractor Personnel Authorized to 

Accompany the U.S. Armed Forces,’’ 2

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, 

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. 

(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) 3 and the Defense 

Federal Acquisition Regulation 

Supplement (DFARS).4

(c) In a designated area of combat 

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 Subordinate 

Commander. 

(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 Assistant Deputy Under 

Secretary of Defense for Program 

Support, under the authority, direction, 

and control of the Deputy Under 

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 

Deputy Under Secretary of Defense for 

Acquisition and Technology 

(DUSD(AT)), 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 Director, Defense Business 

Transformation Agency, under the 

authority, direction, and control of the 

Deputy Chief Management Officer of the 

Department of Defense, through the 

DUSD(AT), shall 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 


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5Available from http://www.dtic.mil/whs/ 

directives/corres/pdf/302040p.pdf. 

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

directives/corres/html/302041.htm. 

7CJCSI 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. 

8Available at http://www.dtic.mil/whs/directives/ 

corres/html/231101.htm. 

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

corres/pdf/520008r.pdf. 

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

directives/corres/html/521056.htm. 

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

directives/corres/pdf/110022p.pdf. 

Its Operational Execution,’’ 5 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 

Personnel Authorized to Accompany 

the U.S. Armed Forces,’’ 6 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, Subordinate Commanders 

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. 

(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, 

developed in accordance with Chairman 

of the Joint Chief of Staff Instruction 

3121.01B, ‘‘Standing Rules of 

Engagement/Standing Rules for the Use 

of Force for U.S. Forces,’’ 7 shall be 

included with the written authorization. 

(4) Ensure that the procedures, orders, 

directives and instructions prescribed 

§ 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,’’ 8 DoD 5200.8–R, 

‘‘Physical Security Program,’’ 9 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.’’ 10 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 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,’’ 11 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. 


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12This requirement is specific to arming 

procedures. Such written acknowledgement should 

not be construed to limit civil and criminal liability 

to conduct arising from ‘‘the use of weapons.’’ PSC 

personnel could be held criminally liable for any 

conduct that would constitute a federal offense (see 

MEJA, 18 USC 3261(a)). 

13Available at http://www.acq.osd.mil/log/PS/p_

vault.html. 

(F) Written acknowledgment by the 

PSC and individual PSC personnel that: 

(1) Potential civil and criminal 

liability exists under U.S. and local law 

or host nation Status of Forces 

Agreements for the use of weapons.12

(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 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. 

(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 is 

applicable 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. The Subordinate 

Commander, 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/Subordinate 

Commander 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 PSC and their personnel. 

The Memorandum of Agreement 

between the Department of Defense and 

Department of State on U.S.G. Private 

Security Contractors 13 shall provide the 

framework for the development of 

guidance and procedures without regard 

to the specific locations identified 

therein. 

Dated: July 14, 2009. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. E9–17059 Filed 7–16–09; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2007–HA–0127; RIN 0720–AB18] 

TRICARE: Civilian Health and Medical 

Program of the Uniformed Services 

(CHAMPUS) Changes Included in the 

John Warner National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2007; Authorization of 

Forensic Examinations 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Final rule. 

SUMMARY: This final rule implements 

section 701 of the John Warner National 

Defense Authorization Act for FY 2007, 

Public Law 109–364. Section 701 

amends Title 10 of the United States 

Code (U.S.C.), Chapter 55, Section 

1079(a) by authorizing coverage for 


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