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)

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, 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.

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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