81_FR_67966 81 FR 67776 - Federal Acquisition Regulation: Contractors Performing Private Security Functions

81 FR 67776 - Federal Acquisition Regulation: Contractors Performing Private Security Functions

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 81, Issue 190 (September 30, 2016)

Page Range67776-67778
FR Document2016-23203

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to remove the DoD-unique requirements for contractors performing private security functions outside the United States and provide a definition of ``full cooperation'' within the associated clause.

Federal Register, Volume 81 Issue 190 (Friday, September 30, 2016) 
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67776-67778]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23203]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 25 and 52

[FAC 2005-91; FAR Case 2014-018; Item IX; Docket No. 2014-0018, 
Sequence No. 1]
RIN 9000-AN07


Federal Acquisition Regulation: Contractors Performing Private 
Security Functions

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to remove the DoD-unique 
requirements for contractors performing private security functions 
outside the United States and provide a definition of ``full 
cooperation'' within the associated clause.

DATES: Effective: October 31, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-91, FAR Case 2014-
018.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 80 FR 30202 on May 27, 2015, to implement section 862 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 
(Pub. L. 110-181) (as amended by other NDAAs, see 10 U.S.C. 2302 Note). 
This rule amends FAR 25.302, Contractors performing private security 
functions outside the United States, and the associated clause at 
52.225-26 to remove the DoD-unique requirements, which were 
incorporated in the Defense Federal Acquisition Regulation Supplement 
(DFARS) on June 30, 2016 (81 FR 42559). This rule also adds the 
definition of ``full cooperation'' to FAR clause 52.225-26 in order to 
affirm that the contract clause does not foreclose any contractor 
rights arising in law, the FAR, or the terms of the contract when 
cooperating with any Government-authorized investigation into incidents 
reported pursuant to the clause.
    One respondent submitted comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comment in the 
development of the final rule.

A. Summary of Significant Changes

    There were no changes made to the rule as a result of the one 
comment received. There were no comments on the Regulatory Flexibility 
Analysis.

B. Analysis of Public Comments

    A discussion of the comment follows:
    Employing quasi-military armed forces:
    Comment: The respondent did not comment on any of the proposed 
changes in the proposed rule. The respondent commented on the alleged 
employment of mercenaries by contractors performing private security 
functions overseas and further stated that this is prohibited as 
codified at 5 U.S.C. 3181. The respondent recommended a change to the 
FAR to make it clear that the U.S. Government will not employ 
mercenaries.
    Response: The respondent's comments are not within the scope of 
this rule.

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, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    The objective of this rule is to amend FAR 25.302, Contractors 
performing private security functions outside the United States, and 
the associated clause at 52.225-26 to remove the DoD-unique 
requirements, which will be incorporated in the Defense Federal 
Acquisition Regulation Supplement (DFARS). The rule also adds a 
definition of ``full cooperation'' to FAR clause 52.225-26 in order 
to affirm that the contract clause does not foreclose any contractor 
rights arising in law, the FAR, or the terms of the contract when 
cooperating with any Government-authorized investigation into 
incidents reported pursuant to the clause.
    No comments were received from the public relative to the 
initial regulatory flexibility analysis.
    DoD, GSA, and NASA do not expect this final rule to have a 
significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. Based on data available in the Federal 
Procurement Data System (FPDS), DoD awarded 403 contracts in FY 2013 
in support of a designated contingency operation outside of the 
United States, of which 63 contracts (15.6 percent) were awarded to 
small businesses. Therefore, it is estimated that this rule will 
apply to approximately 63 small businesses.
    This rule does not create any new reporting, recordkeeping, or 
other compliance requirements.
    There are no known significant alternatives to the rule. The 
impact of this rule on small business is not expected to be 
significant because it is removing DoD-unique requirements from the 
FAR, to be incorporated in the DFARS.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the

[[Page 67777]]

Chief Counsel for Advocacy of the Small Business Administration.

V. Paperwork Reduction Act

    This rule does not affect the information collection requirements 
in FAR clause 52.225-26, currently approved under OMB Control Number 
9000-0184, titled: Contractors Performing Private Security Functions 
Outside the United States, in accordance with the Paperwork Reduction 
Act (44 U.S.C. chapter 35). The estimated total annual public hour and 
cost burden in OMB control number 9000-0184 was calculated based on 
data for the contracts and subcontracts of non-DoD agencies, because 
DoD's information collection was previously approved under OMB control 
number 0704-0460. Therefore, removing the DoD-unique requirements from 
the FAR does not impact the approved estimates for OMB clearance 9000-
0184.

List of Subject in 48 CFR Parts 25 and 52

    Government procurement.

    Dated: September 19, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set 
forth below:

0
1. The authority citation for 48 CFR parts 25 and 52 continues to read 
as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 25--FOREIGN ACQUISITION


25.302-2   [Amended]

0
2. Amend section 25.302-2 by removing from the definition ``Other 
significant military operations'' the phrase ``(see 25.302-3(b)(2)).'' 
and adding ``(see 25.302-3(a)(2)).'' in its place.

0
3. Amend section 25.302-3 by--
0
a. Revising paragraph (a);
0
b. Removing paragraph (b); and
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through 
(d), respectively.
    The revision reads as follows:


25.302-3  Applicability.

    (a) This section applies to contracts that require performance 
outside the United States--
    (1) In an area of combat operations as designated by the Secretary 
of Defense; or
    (2) In an area of other significant military operations as 
designated by the Secretary of Defense, and only upon agreement of the 
Secretary of Defense and the Secretary of State.
* * * * *


25.302-4   [Amended]

0
4. Amend section 25.302-4 by--
0
a. Removing from paragraph (a)(1) ``(PSCs) Operating in Contingency 
Operations, Combat Operations, or Other Significant Military 
Operations'' and adding ``Operating in Contingency Operations'' in its 
place; and
0
b. Removing from paragraph (a)(2) ``to cooperate'' and adding ``to 
fully cooperate'' in its place.

0
5. Amend section 25.302-6 by revising paragraph (a) to read as follows:


25.302-6  Contract clause.

    (a) Use the clause at 52.225-26, Contractors Performing Private 
Security Functions Outside the United States, in solicitations and 
contracts for performance outside the United States in an area of--
    (1) Combat operations, as designated by the Secretary of Defense; 
or
    (2) Other significant military operations, as designated by the 
Secretary of Defense and only upon agreement of the Secretary of 
Defense and the Secretary of State.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Amend section 52.212-5 by--
0
a. Revising the date of the clause, paragraphs (b)(51) and 
(e)(1)(xviii); and
0
b. Amending Alternate II by--
0
 1. Revising the date of Alternate II;
0
2. Redesignating paragraphs (e)(1)(ii)(O) through (R) as paragraphs 
(e)(1)(ii)(P) through (S), respectively; and
0
 3. Adding a new paragraph (e)(1)(ii)(T).
    The revisions read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Items (Oct 2016)

* * * * *
    (b) * * *
    _ (51) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (Oct 2016) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).
* * * * *
    (e)(1) * * *
    (xviii) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (Oct 2016) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).
* * * * *
    Alternate II (Oct 2016). * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (T) 52.225-26, Contractors Performing Private Security Functions 
Outside the United States (Oct 2016) (Section 862, as amended, of 
the National Defense Authorization Act for Fiscal Year 2008; 10 
U.S.C. 2302 Note).
* * * * *

0
7. Amend section 52.213-4 by revising the date of the clause and 
paragraph (a)(2)(viii) to read as follows:


52.213-4   Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items) (Oct 2016)

* * * * *
    (a) * * *
    (2) * * *
    (viii) 52.244-6, Subcontracts for Commercial Items (Oct 2016).
* * * * *

0
8. Amend section 52.225-26 by--
0
a. Revising the introductory text and the date of the clause;
0
b. Revising the introductory text of paragraph (a); and adding in 
alphabetical order, the definitions ``Area of combat operations'', 
``Full cooperation'', and ``Other significant military operations'';
0
c. Revising paragraph (b);
0
d. Removing from paragraph (c)(2)(i) ``(PSCs) Operating in Contingency 
Operations, Combat Operations, or Other Significant Military 
Operations'' and adding ``Operating in Contingency Operations'' in its 
place;
0
e. Removing from paragraph (c)(3) ``Cooperate'' and adding ``Provide 
full cooperation'' in its place; and
0
f. Revising paragraph (f).
    The revisions read as follows:


52.225-26  Contractors Performing Private Security Functions Outside 
the United States.

    As prescribed in 25.302-6, insert the following clause:

Contractors Performing Private Security Functions Outside the United 
States (Oct 2016)

    (a) Definitions. As used in this clause--
    Area of combat operations means an area of operations designated 
as such by the Secretary of Defense when enhanced coordination of 
contractors performing private security functions working for 
Government agencies is required.

[[Page 67778]]

    Full cooperation--
    (1) Means disclosure to the Government of the information 
sufficient to identify the nature and extent of the incident and the 
individuals responsible for the conduct. It includes providing 
timely and complete responses to Government auditors' and 
investigators' requests for documents and access to employees with 
information;
    (2) Does not foreclose any Contractor rights arising in law, the 
FAR, or the terms of the contract. It does not require--
    (i) The Contractor to waive its attorney-client privilege or the 
protections afforded by the attorney work product doctrine; or
    (ii) Any officer, director, owner, or employee of the 
Contractor, including a sole proprietor, to waive his or her 
attorney-client privilege or Fifth Amendment rights; and
    (3) Does not restrict the Contractor from--
    (i) Conducting an internal investigation; or
    (ii) Defending a proceeding or dispute arising under the 
contract or related to a potential or disclosed violation.
    Other significant military operations means activities, other 
than combat operations, as part of a contingency operation outside 
the United States that is carried out by United States Armed Forces 
in an uncontrolled or unpredictable high-threat environment where 
personnel performing security functions may be called upon to use 
deadly force.
* * * * *
    (b) Applicability. If this contract is performed both in a 
designated area and in an area that is not designated, the clause 
only applies to performance in the following designated areas--
    (1) Combat operations, as designated by the Secretary of 
Defense; or
    (2) Other significant military operations, as designated by the 
Secretary of Defense, and only upon agreement of the Secretary of 
Defense and the Secretary of State.
* * * * *
    (f) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (f), in all subcontracts that 
will be performed outside the United States in areas of--
    (1) Combat operations, as designated by the Secretary of 
Defense; or
    (2) Other significant military operations, upon agreement of the 
Secretaries of Defense and State that the clause applies in that 
area.
* * * * *

0
9. Amend section 52.244-6 by revising the date of the clause and 
paragraph (c)(1)(xv) to read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (Oct 2016)

* * * * *
    (c) * * *
    (1) * * *
    (xv) 52.225-26, Contractors Performing Private Security 
Functions Outside the United States (Oct 2016) (Section 862, as 
amended, of the National Defense Authorization Act for Fiscal Year 
2008; 10 U.S.C. 2302 Note).

[FR Doc. 2016-23203 Filed 9-29-16; 8:45 am]
 BILLING CODE 6820-EP-P

67776 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations ■ 9. Amend section 52.225–23 by— clarification of content. For information III. Executive Orders 12866 and 13563 ■ a. Revising the date of the clause; and pertaining to status or publication Executive Orders (E.O.s) 12866 and ■ b. Removing from paragraph (a), in the schedules, contact the Regulatory 13563 direct agencies to assess all costs definition ‘‘Designated country’’, Secretariat at 202–501–4755. Please cite and benefits of available regulatory paragraph (1) the words ‘‘Malta,’’ and FAC 2005–91, FAR Case 2014–018. alternatives and, if regulation is ‘‘Taiwan,’’ and adding ‘‘Malta, SUPPLEMENTARY INFORMATION: necessary, to select regulatory Moldova,’’ and ‘‘Taiwan, Ukraine,’’ in approaches that maximize net benefits their places, respectively; and I. Background (including potential economic, ■ c. Removing from paragraph (a), in the DoD, GSA, and NASA published a environmental, public health and safety definition ‘‘Recovery Act designated proposed rule in the Federal Register at effects, distributive impacts, and country’’, paragraph (1) the words 80 FR 30202 on May 27, 2015, to equity). E.O. 13563 emphasizes the ‘‘Malta,’’ and ‘‘Taiwan,’’ and adding implement section 862 of the National importance of quantifying both costs ‘‘Malta, Moldova,’’ and ‘‘Taiwan, Defense Authorization Act (NDAA) for and benefits, of reducing costs, of Ukraine,’’ in their places, respectively. Fiscal Year (FY) 2008 (Pub. L. 110–181) harmonizing rules, and of promoting The revision reads as follows: (as amended by other NDAAs, see 10 flexibility. This is not a significant 52.225–23 Required Use of American Iron, U.S.C. 2302 Note). This rule amends regulatory action and, therefore, was not Steel, and Manufactured Goods—Buy FAR 25.302, Contractors performing subject to review under Section 6(b) of American Statute—Construction Materials private security functions outside the E.O. 12866, Regulatory Planning and Under Trade Agreements. United States, and the associated clause Review, dated September 30, 1993. This * * * * * at 52.225–26 to remove the DoD-unique rule is not a major rule under 5 U.S.C. requirements, which were incorporated 804. Required Use of American Iron, Steel, in the Defense Federal Acquisition and Manufactured Goods—Buy Regulation Supplement (DFARS) on IV. Regulatory Flexibility Act American Statute—Construction June 30, 2016 (81 FR 42559). This rule DoD, GSA, and NASA have prepared Materials Under Trade Agreements also adds the definition of ‘‘full a Final Regulatory Flexibility Analysis (Oct 2016) cooperation’’ to FAR clause 52.225–26 (FRFA) consistent with the Regulatory * * * * * in order to affirm that the contract Flexibility Act, 5 U.S.C. 601, et seq. The [FR Doc. 2016–23202 Filed 9–29–16; 8:45 am] clause does not foreclose any contractor FRFA is summarized as follows: BILLING CODE 6820–EP–P rights arising in law, the FAR, or the The objective of this rule is to amend FAR terms of the contract when cooperating 25.302, Contractors performing private with any Government-authorized security functions outside the United States, DEPARTMENT OF DEFENSE investigation into incidents reported and the associated clause at 52.225–26 to pursuant to the clause. remove the DoD-unique requirements, which GENERAL SERVICES One respondent submitted comments will be incorporated in the Defense Federal ADMINISTRATION Acquisition Regulation Supplement on the proposed rule. (DFARS). The rule also adds a definition of NATIONAL AERONAUTICS AND II. Discussion and Analysis ‘‘full cooperation’’ to FAR clause 52.225–26 in order to affirm that the contract clause SPACE ADMINISTRATION The Civilian Agency Acquisition does not foreclose any contractor rights Council and the Defense Acquisition arising in law, the FAR, or the terms of the 48 CFR Parts 25 and 52 Regulations Council (the Councils) contract when cooperating with any reviewed the public comment in the Government-authorized investigation into [FAC 2005–91; FAR Case 2014–018; Item incidents reported pursuant to the clause. IX; Docket No. 2014–0018, Sequence No. development of the final rule. No comments were received from the 1] A. Summary of Significant Changes public relative to the initial regulatory RIN 9000–AN07 flexibility analysis. There were no changes made to the DoD, GSA, and NASA do not expect this Federal Acquisition Regulation: rule as a result of the one comment final rule to have a significant economic Contractors Performing Private received. There were no comments on impact on a substantial number of small the Regulatory Flexibility Analysis. entities within the meaning of the Regulatory Security Functions Flexibility Act, 5 U.S.C. 601, et seq. Based on AGENCY: Department of Defense (DoD), B. Analysis of Public Comments data available in the Federal Procurement General Services Administration (GSA), Data System (FPDS), DoD awarded 403 A discussion of the comment follows: contracts in FY 2013 in support of a and National Aeronautics and Space Employing quasi-military armed designated contingency operation outside of Administration (NASA). forces: the United States, of which 63 contracts (15.6 ACTION: Final rule. Comment: The respondent did not percent) were awarded to small businesses. comment on any of the proposed Therefore, it is estimated that this rule will SUMMARY: DoD, GSA, and NASA are apply to approximately 63 small businesses. changes in the proposed rule. The issuing a final rule amending the This rule does not create any new respondent commented on the alleged Federal Acquisition Regulation (FAR) to reporting, recordkeeping, or other employment of mercenaries by compliance requirements. remove the DoD-unique requirements contractors performing private security There are no known significant alternatives for contractors performing private functions overseas and further stated to the rule. The impact of this rule on small security functions outside the United asabaliauskas on DSK3SPTVN1PROD with RULES that this is prohibited as codified at 5 business is not expected to be significant States and provide a definition of ‘‘full U.S.C. 3181. The respondent because it is removing DoD-unique cooperation’’ within the associated requirements from the FAR, to be recommended a change to the FAR to clause. incorporated in the DFARS. make it clear that the U.S. Government DATES: Effective: October 31, 2016. will not employ mercenaries. Interested parties may obtain a copy FOR FURTHER INFORMATION CONTACT: Mr. Response: The respondent’s of the FRFA from the Regulatory Michael O. Jackson, Procurement comments are not within the scope of Secretariat. The Regulatory Secretariat Analyst, at 202–208–4949, for this rule. has submitted a copy of the FRFA to the VerDate Sep<11>2014 22:05 Sep 29, 2016 Jkt 238001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER4.SGM 30SER4

Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations 67777 Chief Counsel for Advocacy of the Small Secretary of Defense, and only upon United States (Oct 2016) (Section 862, as Business Administration. agreement of the Secretary of Defense amended, of the National Defense and the Secretary of State. Authorization Act for Fiscal Year 2008; 10 V. Paperwork Reduction Act U.S.C. 2302 Note). * * * * * This rule does not affect the * * * * * information collection requirements in 25.302–4 [Amended] Alternate II (Oct 2016). * * * FAR clause 52.225–26, currently ■ 4. Amend section 25.302–4 by— * * * * * approved under OMB Control Number ■ a. Removing from paragraph (a)(1) (e)(1) * * * 9000–0184, titled: Contractors ‘‘(PSCs) Operating in Contingency (ii) * * * Performing Private Security Functions (T) 52.225–26, Contractors Performing Operations, Combat Operations, or Private Security Functions Outside the Outside the United States, in Other Significant Military Operations’’ United States (Oct 2016) (Section 862, as accordance with the Paperwork and adding ‘‘Operating in Contingency amended, of the National Defense Reduction Act (44 U.S.C. chapter 35). Operations’’ in its place; and Authorization Act for Fiscal Year 2008; 10 The estimated total annual public hour ■ b. Removing from paragraph (a)(2) ‘‘to U.S.C. 2302 Note). and cost burden in OMB control number cooperate’’ and adding ‘‘to fully * * * * * 9000–0184 was calculated based on data cooperate’’ in its place. ■ 7. Amend section 52.213–4 by for the contracts and subcontracts of ■ 5. Amend section 25.302–6 by revising the date of the clause and non-DoD agencies, because DoD’s revising paragraph (a) to read as follows: paragraph (a)(2)(viii) to read as follows: information collection was previously approved under OMB control number 25.302–6 Contract clause. 52.213–4 Terms and Conditions— 0704–0460. Therefore, removing the (a) Use the clause at 52.225–26, Simplified Acquisitions (Other Than DoD-unique requirements from the FAR Contractors Performing Private Security Commercial Items). does not impact the approved estimates Functions Outside the United States, in * * * * * for OMB clearance 9000–0184. solicitations and contracts for Terms and Conditions—Simplified performance outside the United States Acquisitions (Other Than Commercial Items) List of Subject in 48 CFR Parts 25 and in an area of— (Oct 2016) 52 (1) Combat operations, as designated Government procurement. by the Secretary of Defense; or * * * * * (2) Other significant military (a) * * * Dated: September 19, 2016. (2) * * * William F. Clark, operations, as designated by the (viii) 52.244–6, Subcontracts for Secretary of Defense and only upon Commercial Items (Oct 2016). Director, Office of Government-wide Acquisition Policy, Office of Acquisition agreement of the Secretary of Defense and the Secretary of State. * * * * * Policy, Office of Government-wide Policy. ■ 8. Amend section 52.225–26 by— Therefore, DoD, GSA, and NASA * * * * * ■ a. Revising the introductory text and amend 48 CFR parts 25 and 52 as set PART 52—SOLICITATION PROVISIONS the date of the clause; forth below: ■ b. Revising the introductory text of AND CONTRACT CLAUSES ■ 1. The authority citation for 48 CFR paragraph (a); and adding in parts 25 and 52 continues to read as ■ 6. Amend section 52.212–5 by— alphabetical order, the definitions ‘‘Area follows: ■ a. Revising the date of the clause, of combat operations’’, ‘‘Full paragraphs (b)(51) and (e)(1)(xviii); and cooperation’’, and ‘‘Other significant Authority: 40 U.S.C. 121(c); 10 U.S.C. ■ b. Amending Alternate II by— military operations’’; chapter 137; and 51 U.S.C. 20113. ■ 1. Revising the date of Alternate II; ■ c. Revising paragraph (b); PART 25—FOREIGN ACQUISITION ■ 2. Redesignating paragraphs ■ d. Removing from paragraph (c)(2)(i) (e)(1)(ii)(O) through (R) as paragraphs ‘‘(PSCs) Operating in Contingency 25.302–2 [Amended] (e)(1)(ii)(P) through (S), respectively; Operations, Combat Operations, or ■ 2. Amend section 25.302–2 by and Other Significant Military Operations’’ ■ 3. Adding a new paragraph and adding ‘‘Operating in Contingency removing from the definition ‘‘Other significant military operations’’ the (e)(1)(ii)(T). Operations’’ in its place; phrase ‘‘(see 25.302–3(b)(2)).’’ and The revisions read as follows: ■ e. Removing from paragraph (c)(3) adding ‘‘(see 25.302–3(a)(2)).’’ in its ‘‘Cooperate’’ and adding ‘‘Provide full 52.212–5 Contract Terms and Conditions place. cooperation’’ in its place; and Required To Implement Statutes or ■ f. Revising paragraph (f). ■ 3. Amend section 25.302–3 by— Executive Orders—Commercial Items. The revisions read as follows: ■ a. Revising paragraph (a); * * * * * ■ b. Removing paragraph (b); and 52.225–26 Contractors Performing Private Contract Terms and Conditions Required To Security Functions Outside the United ■ c. Redesignating paragraphs (c) Implement Statutes or Executive Orders— States. through (e) as paragraphs (b) through Commercial Items (Oct 2016) (d), respectively. As prescribed in 25.302–6, insert the * * * * * following clause: The revision reads as follows: (b) * * * 25.302–3 Applicability. l (51) 52.225–26, Contractors Performing Contractors Performing Private Security Private Security Functions Outside the Functions Outside the United States (Oct asabaliauskas on DSK3SPTVN1PROD with RULES (a) This section applies to contracts United States (Oct 2016) (Section 862, as 2016) that require performance outside the amended, of the National Defense (a) Definitions. As used in this clause— United States— Authorization Act for Fiscal Year 2008; 10 Area of combat operations means an area (1) In an area of combat operations as U.S.C. 2302 Note). of operations designated as such by the designated by the Secretary of Defense; * * * * * Secretary of Defense when enhanced or (e)(1) * * * coordination of contractors performing (2) In an area of other significant (xviii) 52.225–26, Contractors Performing private security functions working for military operations as designated by the Private Security Functions Outside the Government agencies is required. VerDate Sep<11>2014 22:05 Sep 29, 2016 Jkt 238001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER4.SGM 30SER4

67778 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations Full cooperation— Authorization Act for Fiscal Year 2008; 10 Specifically, section 702 revised the (1) Means disclosure to the Government of U.S.C. 2302 Note). application of the compensation cap, the information sufficient to identify the [FR Doc. 2016–23203 Filed 9–29–16; 8:45 am] the amount of the cap, and the nature and extent of the incident and the associated formula for annually BILLING CODE 6820–EP–P individuals responsible for the conduct. It adjusting it. The existing formula for includes providing timely and complete responses to Government auditors’ and determining the limit on the investigators’ requests for documents and DEPARTMENT OF DEFENSE allowability of contractor and access to employees with information; subcontractor employee compensation GENERAL SERVICES costs under 41 U.S.C. 1127 was repealed (2) Does not foreclose any Contractor rights arising in law, the FAR, or the terms of the ADMINISTRATION for contracts awarded on or after June contract. It does not require— 24, 2014. Section 702 of the law set the (i) The Contractor to waive its attorney- NATIONAL AERONAUTICS AND initial limitation on allowable client privilege or the protections afforded by SPACE ADMINISTRATION contractor and subcontractor employee the attorney work product doctrine; or compensation costs at $487,000 per (ii) Any officer, director, owner, or 48 CFR Part 31 year, which will be adjusted annually to employee of the Contractor, including a sole [FAC 2005–91; FAR Case 2014–012; Item reflect the change in the Employment proprietor, to waive his or her attorney-client privilege or Fifth Amendment rights; and X; Docket No. 2014–0012; Sequence No. 1] Cost Index for all workers as calculated (3) Does not restrict the Contractor from— by the Bureau of Labor Statistics. This RIN 9000–AM75 (i) Conducting an internal investigation; or final rule also implements the authority (ii) Defending a proceeding or dispute Federal Acquisition Regulation: provided by 10 U.S.C. 2324(e)(1)(P) and arising under the contract or related to a Limitation on Allowable Government 41 U.S.C. 4304(a)(16), as amended by potential or disclosed violation. Contractor Employee Compensation section 702(a), in which Congress has Other significant military operations means authorized the heads of Executive Costs activities, other than combat operations, as agencies to establish ‘‘one or more part of a contingency operation outside the AGENCY: Department of Defense (DoD), narrowly targeted exceptions for United States that is carried out by United General Services Administration (GSA), scientists, engineers, or other specialists States Armed Forces in an uncontrolled or and National Aeronautics and Space unpredictable high-threat environment where upon a determination that such personnel performing security functions may Administration (NASA). exceptions are needed to ensure that the be called upon to use deadly force. ACTION: Final rule. executive agency has continued access to needed skills and capabilities.’’ * * * * * SUMMARY: DoD, GSA and NASA are (b) Applicability. If this contract is II. Discussion and Analysis adopting as final, with changes, an performed both in a designated area and in an area that is not designated, the clause only interim rule amending the Federal The Civilian Agency Acquisition applies to performance in the following Acquisition Regulation (FAR) to Council and the Defense Acquisition designated areas— implement a section of the Bipartisan Regulations Council (the Councils) (1) Combat operations, as designated by the Budget Act of 2013. The final rule reviewed the public comments in the Secretary of Defense; or revises the allowable cost limit relative development of the final rule. A (2) Other significant military operations, as to the compensation of contractor and discussion of the comments is provided designated by the Secretary of Defense, and subcontractor employees. Also, this as follows: only upon agreement of the Secretary of final rule implements the narrowly Defense and the Secretary of State. A. Summary of Significant Changes targeted exception to this allowable cost * * * * * limit for scientists, engineers, or other This final rule adopts the interim rule (f) Subcontracts. The Contractor shall specialists upon an agency with four changes for clarification. include the substance of this clause, determination that such exceptions are • The first clarification entails the including this paragraph (f), in all needed to ensure that the executive addition of a table to FAR 31.205–6(p) subcontracts that will be performed outside that summarizes the applicability dates the United States in areas of— agency has continued access to needed skills and capabilities. contained in this FAR section. (1) Combat operations, as designated by the • The second clarification concerns Secretary of Defense; or DATES: Effective: September 30, 2016. (2) Other significant military operations, the reorganization of the FAR text. FOR FURTHER INFORMATION CONTACT: Ms. upon agreement of the Secretaries of Defense Existing FAR paragraph 31.205–6(p)(4) Kathlyn J. Hopkins, Procurement has become new paragraph (p)(1), with and State that the clause applies in that area. Analyst, at 202–969–7226, for existing paragraph (p)(1) becoming new * * * * * clarification of content. For information paragraph (p)(2). Existing FAR ■ 9. Amend section 52.244–6 by pertaining to status or publication paragraphs 31.205–6(p)(2) and (p)(3) revising the date of the clause and schedules, contact the Regulatory have become new paragraphs (p)(3) and paragraph (c)(1)(xv) to read as follows: Secretariat Division at 202–501–4755. (p)(4), respectively. Please cite FAC 2005–91, FAR Case • The third clarification entails the 52.244–6 Subcontracts for Commercial 2014–012. removal of the following redundant FAR Items. SUPPLEMENTARY INFORMATION: 31.205–6 text: * * * * * Æ Paragraph (p)(2)(ii) text ‘‘Costs I. Background Subcontracts for Commercial Items (Oct incurred after January 1, 1998.’’ asabaliauskas on DSK3SPTVN1PROD with RULES 2016) DoD, GSA, and NASA published an Æ Paragraph (p)(3)(ii) text ‘‘Costs interim rule in the Federal Register at incurred after January 1, 2012.’’ * * * * * 79 FR 35865 on June 24, 2014, to Æ Paragraph (p)(4)(ii) text ‘‘Costs (c) * * * (1) * * * implement section 702 of The incurred on or after June 24, 2014.’’ (xv) 52.225–26, Contractors Performing Bipartisan Budget Act of 2013 (Pub. L. • The fourth clarification entails Private Security Functions Outside the 113–67), which amended the allowable reference links in paragraphs (p)(2) and United States (Oct 2016) (Section 862, as cost limits of contractor and (p)(3) (see https://www.whitehouse.gov/ amended, of the National Defense subcontractor employee compensation. omb/procurement_index_exec_comp/) VerDate Sep<11>2014 22:05 Sep 29, 2016 Jkt 238001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER4.SGM 30SER4


Document Created: 2018-02-09 13:34:07
Document Modified: 2018-02-09 13:34:07
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective: October 31, 2016.
ContactMr. Michael O. Jackson, Procurement Analyst, at 202-208-4949, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-91, FAR Case 2014- 018.
FR Citation81 FR 67776 
RIN Number9000-AN07
CFR Citation48 CFR 25
48 CFR 52
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