80 FR 36900 - Defense Federal Acquisition Regulation Supplement: Defense Contractors Outside the United States-Subpart Relocation (DFARS Case 2015-D015)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 80, Issue 123 (June 26, 2015)

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to relocate the text of a DFARS subpart in order to conform with the Federal Acquisition Regulation (FAR) and to make minor related editorial revisions.

[Federal Register Volume 80, Number 123 (Friday, June 26, 2015)]
[Rules and Regulations]
[Pages 36900-36903]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-15667]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204, 212, 225, 242, and 252

RIN 0750-AI55


Defense Federal Acquisition Regulation Supplement: Defense 
Contractors Outside the United States--Subpart Relocation (DFARS Case 
2015-D015)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to relocate the text of a 
DFARS subpart in order to conform with the Federal Acquisition 
Regulation (FAR) and to make minor related editorial revisions.

DATES: Effective June 26, 2015.

FOR FURTHER INFORMATION CONTACT: Ms. Kyoung Lee, telephone 571-372-
6176.

SUPPLEMENTARY INFORMATION:

I. Background

    In order to conform the DFARS with the FAR, this rule moves, with 
minor editorial changes, the text of DFARS subpart 225.74, Defense 
Contractors

[[Page 36901]]

Outside the United States, to DFARS subpart 225.3, Contracts Performed 
Outside the United States. In addition, this rule revises the 
introductory texts of the clauses at DFARS 252.225-7040, Contractor 
Personnel Supporting U.S. Armed Forces Deployed Outside the United 
States, and 252.225-7043, Antiterrorism/Force Protection for Defense 
Contractors Outside the United States, to reflect the changed location 
of the prescriptions for use of those clauses, and makes a minor 
editorial change to the text of each of the clauses. This rule also 
revises DFARS subparts 204.8, 212.3, and 242.3 to revise references to 
the DFARS text that has been relocated from DFARS subpart 225.74 to 
DFARS subpart 225.3.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    ``Publication of proposed regulations'', 41 U.S.C. 1707, is the 
statute which applies to the publication of the Federal Acquisition 
Regulation. Paragraph (a)(1) of the statute requires that a procurement 
policy, regulation, procedure or form (including an amendment or 
modification thereof) must be published for public comment if it 
relates to the expenditure of appropriated funds, and has either a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule only relocates existing text within the DFARS, makes 
corresponding revisions to references related to that text, and makes a 
minor editorial change to two clauses. This final rule is not required 
to be published for public comment, because it has no effect beyond the 
internal operating procedures of DoD, and the rule has no cost or 
administrative impact on contractors or offerors.

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

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision within 
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require 
publication for public comment.

V. Paperwork Reduction Act

    The rule contains 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); however, these changes to the 
DFARS do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Number 0704-
0460, entitled Synchronized Predeployment and Operational Tracker 
(SPOT) System.

List of Subjects in 48 CFR Parts 204, 212, 225, 242, and 252

    Government procurement.

Amy G. Williams,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 204, 212, 225, 242, and 252 are amended as 
follows:

0
1. The authority citation for 48 CFR parts 204, 212, 225, 242, and 252 
continues to read as follows:

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

PART 204--ADMINISTRATIVE MATTERS


204.804  [Amended]

0
2. Amend section 204.804 in paragraph (2) by removing ``PGI 
225.7404(e)'' and adding ``PGI 225.373(e)'' in its place.

PART 212--ACQUISITION OF COMMERCIAL ITEMS


212.301  [Amended]

0
3. Amend section 212.301 by--
0
a. In paragraph (f)(x)(Y), removing ``225.7402-5(a)'' and adding 
``225.371-5(a)'' in its place; and
0
b. In paragraph (f)(x)(Z), removing ``225.7403-2'' and adding 
``225.372-2'' in its place.

PART 225--FOREIGN ACQUISITION

0
4. Add section 225.370 to subpart 225.3 to read as follows:


225.370  Contracts requiring performance or delivery in a foreign 
country.

    (a) If the acquisition requires the performance of services or 
delivery of supplies in an area outside the United States, follow the 
procedures at PGI 225.370(a).
    (b) For work performed in Germany, eligibility for logistics 
support or base privileges of contractor employees is governed by U.S.-
German bilateral agreements. Follow the procedures at Army in Europe 
Regulation 715-9, available at http://www.eur.army.mil/g1/content/CPD/docper/docper_germanyLinks.html under ``AE Regs & Resources.''
    (c) For work performed in Japan or Korea, see PGI 225.370(b) for 
information on bilateral agreements and policy relating to contractor 
employees in Japan or Korea.
    (d) For work performed in the U.S. Central Command area of 
responsibility, follow the procedures for theater business clearance/
contract administration delegation instructions at PGI 225.370(c).

0
5. Add sections 225.371, 225.371-1, 225.371-2, 225.371-3, 225.371-4, 
225.371-5 to subpart 225.3 to read as follows:


225.371  Contractor personnel supporting U.S. Armed Forces deployed 
outside the United States.

    For additional information on contractor personnel supporting U.S. 
Armed Forces, see PGI 225.371.


225.371-1  Scope.

    (a) This section applies to contracts that involve contractor 
personnel supporting U.S. Armed Forces deployed outside the United 
States in--
    (1) Contingency operations;
    (2) Humanitarian or peacekeeping operations; or
    (3) Other military operations or military exercises, when 
designated by the combatant commander.
    (b) Any of the types of operations listed in paragraph (a) of this 
section may include stability operations such as--
    (1) Establishment or maintenance of a safe and secure environment; 
or
    (2) Provision of emergency infrastructure reconstruction, 
humanitarian relief, or essential governmental services (until feasible 
to transition to local government).


225.371-2  Definition.

    ``Designated operational area'' is defined in the clause at 
252.225-7040. See PGI 225.371-2 for additional information on 
designated operational areas.

[[Page 36902]]

225.371-3  Government support.

    (a) Government support that may be authorized or required for 
contractor personnel performing in a designated operational area may 
include, but is not limited to, the types of support listed in PGI 
225.371-3(a).
    (b) The agency shall provide logistical or security support only 
when the appropriate agency official, in accordance with agency 
guidance, determines in coordination with the combatant commander 
that--
    (1) Such Government support is available and is needed to ensure 
continuation of essential contractor services; and
    (2) The contractor cannot obtain adequate support from other 
sources at a reasonable cost.
    (c) The contracting officer shall specify in the solicitation and 
contract--
    (1) Valid terms, approved by the combatant commander, that specify 
the responsible party, if a party other than the combatant commander is 
responsible for providing protection to the contractor personnel 
performing in the designated operational area; and
    (2) Any other Government support to be provided, and whether this 
support will be provided on a reimbursable basis, citing the authority 
for the reimbursement.
    (d) Medical support of contractor personnel. The contracting 
officer shall provide direction to the contractor when the contractor 
is required to reimburse the Government for medical treatment or 
transportation of contractor personnel to a selected civilian facility 
in accordance with paragraph (c)(2)(ii) of the clause at 252.225-7040. 
For additional information, see PGI 225.371-3(d).
    (e) Letter of authorization. Contractor personnel must have a 
Synchronized Predeployment and Operational Tracker (SPOT)-generated 
letter of authorization (LOA) signed by the contracting officer in 
order to process through a deployment center or to travel to, from, or 
within the designated operational area. The LOA also will identify any 
additional authorizations, privileges, or Government support that the 
contractor personnel are entitled to under the contract. For additional 
information on LOAs, see PGI 225.371-3(e).


225.371-4  Law of war training.

    (a) Basic training. Basic law of war training is required for all 
contractor personnel supporting U.S. Armed Forces deployed outside the 
United States. The basic training normally will be provided through a 
military-run training center. The contracting officer may authorize the 
use of an alternate basic training source, provided the servicing DoD 
legal advisor concurs with the course content. An example of an 
alternate source of basic training is the web-based training provided 
by the Defense Acquisition University at https://acc.dau.mil/CommunityBrowser.aspx?id=18014&lang=en-US.
    (b) Advanced law of war training. (1) The types of personnel that 
must obtain advanced law of war training include the following:
    (i) Private security contractors.
    (ii) Security guards in or near areas of military operations.
    (iii) Interrogators, linguists, interpreters, guards, report 
writers, information technology technicians, or others who will come 
into contact with enemy prisoners of war, civilian internees, retained 
persons, other detainees, terrorists, or criminals who are captured, 
transferred, confined, or detained during or in the aftermath of 
hostilities.
    (iv) Other personnel when deemed necessary by the contracting 
officer.
    (2) If contractor personnel will be required to obtain advanced law 
of war training, the solicitation and contract shall specify--
    (i) The types of personnel subject to advanced law of war training 
requirements;
    (ii) Whether the training will be provided by the Government or the 
contractor;
    (iii) If the training will be provided by the Government, the 
source of the training; and
    (iv) If the training will be provided by the contractor, a 
requirement for coordination of the content with the servicing DoD 
legal advisor to ensure that training content is commensurate with the 
duties and responsibilities of the personnel to be trained.


225.371-5  Contract clauses.

    (a) Use the clause at 252.225-7040, Contractor Personnel Supporting 
U.S. Armed Forces Deployed Outside the United States, instead of the 
clause at FAR 52.225-19, Contractor Personnel in a Designated 
Operational Area or Supporting a Diplomatic or Consular Mission Outside 
the United States, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for performance in a designated 
operational area that authorize contractor personnel (including both 
contractors authorized to accompany the Force (CAAF) and non-CAAF) to 
support U.S. Armed Forces deployed outside the United States in--
    (1) Contingency operations;
    (2) Humanitarian assistance operations;
    (3) Peace operations consistent with Joint Publication 3-07.3; or
    (4) Other military operations or military exercises, when 
designated by the combatant commander or as directed by the Secretary 
of Defense.
    (b) For additional guidance on clauses to consider when using the 
clause at 252.225-7040, see PGI 225.371-5(b).

0
6. Add sections 225.372, 225.372-1, and 225.372-2 to subpart 225.3 to 
read as follows:


225.372  Antiterrorism/force protection.


225.372-1  General.

    Information and guidance pertaining to DoD antiterrorism/force 
protection policy for contracts that require performance or travel 
outside the United States can be obtained from the offices listed in 
PGI 225.372-1.


225.372-2  Contract clause.

    Use the clause at 252.225-7043, Antiterrorism/Force Protection 
Policy for Defense Contractors Outside the United States, in 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that require performance or travel outside the United States, except 
for contracts with--
    (a) Foreign governments;
    (b) Representatives of foreign governments; or
    (c) Foreign corporations wholly owned by foreign governments.

0
7. Add section 225.373 to subpart 225.3 to read as follows:


225.373   Contract administration in support of contingency operations.

    For additional guidance on contract administration considerations 
when supporting contingency operations, see PGI 225.373.

0
8. Add section 225.374 to subpart 225.3 to read as follows:


225.374   Use of electronic business tools.

    See 218.272 concerning the use of electronic business tools in 
support of a contingency operation or humanitarian or peacekeeping 
operation.


225.802-70   [Amended]

0
9. Amend section 225.802-70, by removing ``225.74, Defense Contractors 
Outside the United States'' and adding ``225.3, Contracts Performed 
Outside the United States'' in its place.

Subpart 225.74 [Removed and Reserved]

0
10. Remove and reserve subpart 225.74, consisting of sections 225.7401,

[[Page 36903]]

225.7402, 225.7402-1, 225.7402-2, 225.7402-3, 225.7402-4, 225.7402-5, 
225.7403, 225.7403-1, 225.7403-2, 225.7404, and 225.7405.

PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES


242.302   [Amended]

0
11. Amend section 242.302 in paragraph (S-72) by removing ``PGI 
225.7402-5(a)(iv)'' and adding ``PGI 207.105(b)(20)(C)(9)'' in its 
place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.225-7040   [Amended]

0
12. Amend section 252.225-7040 by--
0
a. In the introductory text, removing ``225.7402-5(a)'' and adding 
``225.371-5(a)'' in its place;
0
b. Removing the clause date ``(JAN 2015)'' and adding ``(JUN 2015)'' in 
its place; and
0
c. In paragraph (b)(4), removing ``authorized to accompany'' and adding 
``supporting'' in its place.


252.225-7043   [Amended]

0
13. Amend section 252.225-7043 by--
0
a. In the introductory text, removing ``225.7403-2'' and adding 
``225.372-2'' in its place;
0
b. Removing the clause date ``(MAR 2006)'' and adding ``(JUN 2015)'' in 
its place; and
0
c. In paragraph (d), removing ``PGI 225.7403-1'' and adding ``PGI 
225.372-1'' in its place.

[FR Doc. 2015-15667 Filed 6-25-15; 8:45 am]
 BILLING CODE 5001-06-P