83 FR 16003 - Defense Federal Acquisition Regulation Supplement: Safe Access to Projects in Afghanistan (DFARS Case 2017-D032)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 83, Issue 72 (April 13, 2018)

Page Range		16003-16004
FR Document		2018-07733

DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2017 that prohibits use of funds for certain programs and projects of the Department of Defense in Afghanistan that cannot be safely accessed by United States Government personnel.

Federal Register, Volume 83 Issue 72 (Friday, April 13, 2018)

[Federal Register Volume 83, Number 72 (Friday, April 13, 2018)]
[Rules and Regulations]
[Pages 16003-16004]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-07733]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 225

[Docket DARS-2018-D007]
RIN 0750-AJ38


Defense Federal Acquisition Regulation Supplement: Safe Access to 
Projects in Afghanistan (DFARS Case 2017-D032)

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is amending the Defense Federal Acquisition Regulation 
Supplement (DFARS) to implement a section of the National Defense 
Authorization Act for Fiscal Year 2017 that prohibits use of funds for 
certain programs and projects of the Department of Defense in 
Afghanistan that cannot be safely accessed by United States Government 
personnel.

DATES: Effective April 13, 2018.

FOR FURTHER INFORMATION CONTACT:  Ms. Amy Williams, telephone 571-372-
6106.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is amending the DFARS to implement section 1216 of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 
114-328). Section 1216 requires that funding amounts available to the 
Department of Defense may not be obligated or expended for a 
construction or other infrastructure program or project of the 
Department in Afghanistan if military or civilian personnel of the 
United States Government, or their representatives with authority to 
conduct oversight of such program or project, cannot safely access such 
program or project. The prohibition may be waived with an approved 
determination.

II. Discussion and Analysis

    To implement section 1216, this rule adds a new DFARS section 
225.7705, Prohibition on use of funds for contracts of certain programs 
and projects in Afghanistan that cannot be safely accessed. The 
procedures provided in this new section are strictly internal to the 
Government, in that they instruct the contracting officer to not 
obligate funds on the covered contracts, unless (1) Government 
personnel can safely access the project, or (2) a determination is 
approved by the appropriate authority to waive this restriction, as 
outlined in the statute.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not add any new burdens or impact applicability of 
clauses and provisions at or below the simplified acquisition 
threshold, or to acquisition of commercial items.

IV. 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 a significant regulatory action and, therefore, was 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.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and 
Controlling Regulatory Costs, because the rule relates to agency 
organization, management, or personnel.

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

    The statute that applies to the publication of the Federal 
Acquisition Regulation is codified at Title 41 of the United States 
Code (formerly known as the Office of Federal Procurement Policy Act). 
Specifically, 41 U.S.C 1707(a)(1) 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 is 
not required to be published for public comment, because it only 
provides procedures for United States Government personnel to follow 
for certain programs and projects in Afghanistan that cannot be safely 
accessed. These requirements affect only the internal operating 
procedures of the Government.

VII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section VI. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required and none has been prepared.

VIII. Paperwork Reduction Act

    The 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).

[[Page 16004]]

List of Subjects in 48 CFR Part 225

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Editor, Defense Acquisition Regulations 
System.

    Therefore, 48 CFR part 225 is amended as follows:

PART 225--FOREIGN ACQUISITION

0
1. The authority citation for part 225 continues to read as follows:

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


0
2. Amend section 225.7700 by adding paragraph (e) to read as follows:


225.7700   Scope.

* * * * *
    (e) Section 216 of the National Defense Authorization Act for 
Fiscal Year 2017 (Pub. L. 114-328).
* * * * *

0
3. Add sections 225.7705, 225.7705-1, 225.7705-2, and 225.7705-3 to 
subpart 225.77 to read as follows:


225.7705   Prohibition on use of funds for contracts of certain 
programs and projects in Afghanistan that cannot be safely accessed.

    This section implements section 1216 of the National Defense 
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328).


225.7705-1   Prohibition.

    The contracting officer shall not obligate or expend funds for a 
construction or other infrastructure program or project of the 
Department in Afghanistan if military or civilian personnel of the 
United States Government or their representatives, with authority to 
conduct oversight of such program or project, cannot safely access such 
program or project. In limited circumstances, this prohibition may be 
waived in accordance with section 225.7705-2.


225.7705-2   Waiver of prohibition.

    (a) The prohibition in 225.7705-1 may be waived upon issuance of a 
determination, approved in accordance with paragraph (b) of this 
section, that--
    (1) The program or project clearly contributes to United States 
national interests or strategic objectives;
    (2) The Government of Afghanistan has requested or expressed a need 
for the program or project;
    (3) The program or project has been coordinated with the Government 
of Afghanistan, and with any other implementing agencies or 
international donors;
    (4) Security conditions permit effective implementation and 
oversight of the program or project;
    (5) Safeguards to detect, deter, and mitigate corruption and waste, 
fraud, and abuse of funds are in place;
    (6) Adequate arrangements have been made for the sustainment of the 
program or project following its completion, including arrangements 
with respect to funding and technical capacity for sustainment; and
    (7) Meaningful metrics have been established to measure the 
progress and effectiveness of the program or project in meeting its 
objectives.
    (b) The following officials are authorized to approve the 
determination described in paragraph (a) of this section:
    (1) In the case of a program or project with an estimated lifecycle 
cost of less than $1 million, by the contracting officer.
    (2) In the case of a program or project with an estimated lifecycle 
cost of $1 million or more, but less than $20 million, by the senior 
U.S. officer in the Combined Security Transition Command-Afghanistan.
    (3) In the case of a program or project with an estimated lifecycle 
cost of $20 million or more, but less than $40 million, by the 
Commander of United States Forces-Afghanistan.
    (4) In the case of a program or project with an estimated lifecycle 
cost of $40 million or more, by the Secretary of Defense.
    (c) Congressional notification is required within 15 days of 
issuance of a determination to waive the prohibition for programs or 
projects valued at $40 million or more in accordance with paragraph 
(b)(4) of this section.


225.7705-3   Procedures.

    (a) The contracting officer shall not obligate or expend funds for 
contracts for a construction or other infrastructure program or project 
in Afghanistan, awarded after December 23, 2016, unless the requiring 
activity provides the following documentation:
    (1) Written affirmation that military or civilian personnel of the 
United States Government or their representatives, with authority to 
conduct oversight of such program or project, can safely access such 
program or project; or
    (2)(i) For programs or projects valued at less than $1 million, 
sufficient information upon which to base the determination described 
in 225.7705-2(a); or
    (ii)(A) For programs or projects valued at $1 million or more, a 
copy of the approved determination described in 225.7705-2(a) and (b); 
and
    (B) For programs or projects valued at $40 million or more, a copy 
of the Congressional notification described in 225.7705-2(c).
    (b) After contract award, the contracting officer shall review the 
requiring activity's progress reports (e.g., contracting officer's 
representative reports) that addresses whether access continues to be 
safe or security conditions continue to permit effective implementation 
and oversight of the contract. If the requiring activity does not 
affirm continued safe access or, if a determination to waive the 
prohibition has been approved, that security conditions continue to 
permit effective implementation and oversight of the contract, then the 
contracting officer shall consult with the requiring activity to take 
any appropriate actions.

[FR Doc. 2018-07733 Filed 4-12-18; 8:45 am]
 BILLING CODE 5001-06-P

Federal Register / Vol. 83, No. 72 / Friday, April 13, 2018 / Rules and Regulations 16003

PART 252—SOLICITATION FOR FURTHER INFORMATION CONTACT: E.O. 12866, Regulatory Planning and
PROVISIONS AND CONTRACT Ms. Amy Williams, telephone 571–372– Review, dated September 30, 1993. This
CLAUSES 6106. rule is not a major rule under 5 U.S.C.
SUPPLEMENTARY INFORMATION: 804.
■ 6. Add section 252.219–7012 to read
as follows: I. Background V. Executive Order 13771
DoD is amending the DFARS to
252.219–7012 Competition for Religious- This rule is not subject to E.O. 13771,
Related Services.
implement section 1216 of the National
Defense Authorization Act (NDAA) for Reducing Regulation and Controlling
As prescribed in 219.270–3, use the Fiscal Year (FY) 2017 (Pub. L. 114–328). Regulatory Costs, because the rule
following provision: Section 1216 requires that funding relates to agency organization,
Competition for Religious-Related amounts available to the Department of management, or personnel.
Services (APR 2018) Defense may not be obligated or VI. Publication of This Final Rule for
expended for a construction or other Public Comment Is Not Required by
(a) Definition. As used in this provision—
Nonprofit organization means any infrastructure program or project of the Statute
organization that is— Department in Afghanistan if military or
(1) Described in section 501(c) of the civilian personnel of the United States The statute that applies to the
Internal Revenue Code of 1986; and Government, or their representatives publication of the Federal Acquisition
(2) Exempt from tax under section 501(a) with authority to conduct oversight of Regulation is codified at Title 41 of the
of that Code. such program or project, cannot safely United States Code (formerly known as
(b) A nonprofit organization is not access such program or project. The
precluded from competing for a contract for the Office of Federal Procurement
prohibition may be waived with an Policy Act). Specifically, 41 U.S.C
religious-related services to be performed on
a U.S. military installation notwithstanding
approved determination. 1707(a)(1) requires that a procurement
that a nonprofit organization is not a small II. Discussion and Analysis policy, regulation, procedure or form
business concern as identified in FAR (including an amendment or
19.000(a)(3). To implement section 1216, this rule
adds a new DFARS section 225.7705, modification thereof) must be published
(c) If the apparently successful offeror has
not represented in its offer or quotation that Prohibition on use of funds for contracts for public comment if it relates to the
it is a small business concern identified in of certain programs and projects in expenditure of appropriated funds, and
FAR 19.000(a)(3), as appropriate to the Afghanistan that cannot be safely has either a significant effect beyond the
solicitation, the Contracting Officer will accessed. The procedures provided in internal operating procedures of the
verify that the offeror is registered in the this new section are strictly internal to agency issuing the policy, regulation,
System for Award Management (SAM) procedure or form, or has a significant
the Government, in that they instruct
database as a nonprofit organization.
the contracting officer to not obligate cost or administrative impact on
(End of provision)
funds on the covered contracts, unless contractors or offerors. This final rule is
[FR Doc. 2018–07731 Filed 4–12–18; 8:45 am] (1) Government personnel can safely not required to be published for public
BILLING CODE 5001–06–P access the project, or (2) a determination comment, because it only provides
is approved by the appropriate authority procedures for United States
to waive this restriction, as outlined in Government personnel to follow for
DEPARTMENT OF DEFENSE the statute. certain programs and projects in
Defense Acquisition Regulations III. Applicability to Contracts at or Afghanistan that cannot be safely
System Below the Simplified Acquisition accessed. These requirements affect
Threshold and for Commercial Items, only the internal operating procedures
48 CFR Part 225 Including Commercially Available Off- of the Government.
the-Shelf Items
[Docket DARS–2018–D007] VII. Regulatory Flexibility Act
This rule does not add any new
RIN 0750–AJ38 Because a notice of proposed
burdens or impact applicability of
Defense Federal Acquisition clauses and provisions at or below the rulemaking and an opportunity for
Regulation Supplement: Safe Access simplified acquisition threshold, or to public comment are not required to be
to Projects in Afghanistan (DFARS acquisition of commercial items. given for this rule under 41 U.S.C.
Case 2017–D032) IV. Executive Orders 12866 and 13563 1707(a)(1) (see section VI. of this
preamble), the analytical requirements
AGENCY: Defense Acquisition Executive Orders (E.O.s) 12866 and of the Regulatory Flexibility Act
Regulations System, Department of 13563 direct agencies to assess all costs (5 U.S.C. 601 et seq.) are not applicable.
Defense (DoD). and benefits of available regulatory Accordingly, no regulatory flexibility
ACTION: Final rule. alternatives and, if regulation is
analysis is required and none has been
necessary, to select regulatory
SUMMARY: DoD is amending the Defense prepared.
approaches that maximize net benefits
Federal Acquisition Regulation (including potential economic, VIII. Paperwork Reduction Act
Supplement (DFARS) to implement a environmental, public health and safety
section of the National Defense effects, distributive impacts, and The rule does not contain any
Authorization Act for Fiscal Year 2017 equity). E.O. 13563 emphasizes the information collection requirements that
daltland on DSKBBV9HB2PROD with RULES

that prohibits use of funds for certain importance of quantifying both costs require the approval of the Office of
programs and projects of the and benefits, of reducing costs, of Management and Budget under the
Department of Defense in Afghanistan harmonizing rules, and of promoting Paperwork Reduction Act (44 U.S.C.
that cannot be safely accessed by United flexibility. This is a significant chapter 35).
States Government personnel. regulatory action and, therefore, was
DATES: Effective April 13, 2018. subject to review under section 6(b) of

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16004 Federal Register / Vol. 83, No. 72 / Friday, April 13, 2018 / Rules and Regulations

List of Subjects in 48 CFR Part 225 (4) Security conditions permit (B) For programs or projects valued at
effective implementation and oversight $40 million or more, a copy of the
Government procurement.
of the program or project; Congressional notification described in
Jennifer Lee Hawes, (5) Safeguards to detect, deter, and 225.7705–2(c).
Regulatory Control Officer, Editor, Defense mitigate corruption and waste, fraud, (b) After contract award, the
Acquisition Regulations System. and abuse of funds are in place; contracting officer shall review the
Therefore, 48 CFR part 225 is (6) Adequate arrangements have been requiring activity’s progress reports
amended as follows: made for the sustainment of the program (e.g., contracting officer’s representative
or project following its completion, reports) that addresses whether access
PART 225—FOREIGN ACQUISITION including arrangements with respect to continues to be safe or security
funding and technical capacity for conditions continue to permit effective
■ 1. The authority citation for part 225 sustainment; and implementation and oversight of the
continues to read as follows: (7) Meaningful metrics have been contract. If the requiring activity does
Authority: 41 U.S.C. 1303 and 48 CFR established to measure the progress and not affirm continued safe access or, if a
chapter 1. effectiveness of the program or project determination to waive the prohibition
in meeting its objectives. has been approved, that security
■ 2. Amend section 225.7700 by adding (b) The following officials are conditions continue to permit effective
paragraph (e) to read as follows: authorized to approve the determination implementation and oversight of the
225.7700 Scope. described in paragraph (a) of this contract, then the contracting officer
section: shall consult with the requiring activity
* * * * * (1) In the case of a program or project to take any appropriate actions.
(e) Section 216 of the National with an estimated lifecycle cost of less
Defense Authorization Act for Fiscal [FR Doc. 2018–07733 Filed 4–12–18; 8:45 am]
than $1 million, by the contracting
Year 2017 (Pub. L. 114–328). officer.
BILLING CODE 5001–06–P

* * * * * (2) In the case of a program or project
■ 3. Add sections 225.7705, 225.7705–1, with an estimated lifecycle cost of DEPARTMENT OF DEFENSE
225.7705–2, and 225.7705–3 to subpart $1 million or more, but less than
225.77 to read as follows: $20 million, by the senior U.S. officer in Defense Acquisition Regulations
the Combined Security Transition System
225.7705 Prohibition on use of funds for Command-Afghanistan.
contracts of certain programs and projects (3) In the case of a program or project
in Afghanistan that cannot be safely 48 CFR Part 237
with an estimated lifecycle cost of
accessed. [Docket DARS–2018–0013]
$20 million or more, but less than
This section implements section 1216 $40 million, by the Commander of RIN 0750–AJ49
of the National Defense Authorization United States Forces-Afghanistan.
Act for Fiscal Year 2017 (Pub. L. 114– (4) In the case of a program or project Defense Federal Acquisition
328). with an estimated lifecycle cost of Regulation Supplement: Educational
$40 million or more, by the Secretary of Service Agreements (DFARS Case
225.7705–1 Prohibition.
Defense. 2017–D039)
The contracting officer shall not (c) Congressional notification is
obligate or expend funds for a AGENCY: Defense Acquisition
required within 15 days of issuance of
construction or other infrastructure Regulations System, Department of
a determination to waive the prohibition
program or project of the Department in Defense (DoD).
for programs or projects valued at
Afghanistan if military or civilian $40 million or more in accordance with ACTION: Final rule.
personnel of the United States paragraph (b)(4) of this section.
Government or their representatives, SUMMARY: DoD is issuing a final rule
with authority to conduct oversight of 225.7705–3 Procedures. amending the Defense Federal
such program or project, cannot safely (a) The contracting officer shall not Acquisition Regulation Supplement
access such program or project. In obligate or expend funds for contracts (DFARS) to remove limiting language
limited circumstances, this prohibition for a construction or other infrastructure related to educational service
may be waived in accordance with program or project in Afghanistan, agreements. This deletion will allow
section 225.7705–2. awarded after December 23, 2016, DoD to make agreements that permit
unless the requiring activity provides payment for Masters of Laws degrees
225.7705–2 Waiver of prohibition.
the following documentation: and other legal training programs, in
(a) The prohibition in 225.7705–1 (1) Written affirmation that military or accordance with applicable law,
may be waived upon issuance of a civilian personnel of the United States regulation, and policy.
determination, approved in accordance Government or their representatives, DATES: Effective April 13, 2018.
with paragraph (b) of this section, that— with authority to conduct oversight of FOR FURTHER INFORMATION CONTACT:
(1) The program or project clearly such program or project, can safely Carrie Moore, telephone 571–372–6093.
contributes to United States national access such program or project; or SUPPLEMENTARY INFORMATION:
interests or strategic objectives; (2)(i) For programs or projects valued
(2) The Government of Afghanistan at less than $1 million, sufficient I. Background
has requested or expressed a need for DFARS subpart 237.72, Educational
daltland on DSKBBV9HB2PROD with RULES

information upon which to base the
the program or project; determination described in 225.7705– Service Agreements, prescribes policies
(3) The program or project has been 2(a); or and procedures for acquiring
coordinated with the Government of (ii)(A) For programs or projects valued educational services from schools,
Afghanistan, and with any other at $1 million or more, a copy of the colleges, universities, or other
implementing agencies or international approved determination described in educational institutions. An educational
donors; 225.7705–2(a) and (b); and service agreement (ESA) is an ordering

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Document Created: 2018-04-13 00:18:24
Document Modified: 2018-04-13 00:18:24

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective April 13, 2018.
Contact		Ms. Amy Williams, telephone 571-372- 6106.
FR Citation		83 FR 16003
RIN Number		0750-AJ38

83 FR 16003 - Defense Federal Acquisition Regulation Supplement: Safe Access to Projects in Afghanistan (DFARS Case 2017-D032)

DEPARTMENT OF DEFENSEDefense Acquisition Regulations System

Federal Register Volume 83, Issue 72 (April 13, 2018)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System