Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises, 55281-55285 [2022-18992]

Download as PDF Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations (b) This general license does not authorize any transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR), or involving any person blocked pursuant to RuHSR, unless separately authorized. Andrea M. Gacki, Director, Office of Foreign Assets Control. Dated: March 11, 2022. OFFICE OF FOREIGN ASSETS CONTROL Russian Harmful Foreign Activities Sanctions Regulations 31 CFR Part 587 GENERAL LICENSE NO. 19 Authorizing Transactions Related to Personal Maintenance of U.S. Individuals Located in the Russian Federation Prohibited by Executive Order of March 11, 2022 (a) Except as provided in paragraph (b) of this general license, individuals who are U.S. persons located in the Russian Federation are authorized to engage in all transactions prohibited by section 1(a)(iv) of Executive Order of March 11, 2022, Prohibiting Certain Imports, Exports, and New Investment With Respect to Continued Russian Federation Aggression, that are ordinarily incident and necessary to their personal maintenance within the Russian Federation, including payment of housing expenses, acquisition of goods or services for personal use, payment of taxes or fees, and purchase or receipt of permits, licenses, or public utility services. (b) This general license does not authorize any transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR), including involving any person blocked pursuant to the RuHSR, unless separately authorized. Andrea M. Gacki, Director, Office of Foreign Assets Control. Dated: March 24, 2022. Andrea M. Gacki, Director, Office of Foreign Assets Control. [FR Doc. 2022–19510 Filed 9–8–22; 8:45 am] BILLING CODE 4810–AL–P DEPARTMENT OF DEFENSE Andrea M. Gacki, Director, Office of Foreign Assets Control. Dated: March 11, 2022. Office of the Secretary OFFICE OF FOREIGN ASSETS CONTROL [Docket ID: DoD–2020–OS–0016] 32 CFR Part 159 RIN 0790–AK87 Russian Harmful Foreign Activities Sanctions Regulations GENERAL LICENSE NO. 20 Authorizing Third-Country Diplomatic and Consular Funds Transfers (a) Except as provided in paragraph (b) of this general license, U.S. persons are authorized to engage in all VerDate Sep<11>2014 17:26 Sep 08, 2022 Jkt 256001 Office of the Under Secretary of Defense for Acquisition and Sustainment, Department of Defense (DoD). ACTION: Final rule. AGENCY: PO 00000 Frm 00041 Fmt 4700 The DoD is finalizing updates to this rule resulting from changes from the National Defense Authorization Act (NDAA) for Fiscal Years (FY) 2017 and 2020 as well as DoD policy updates. These changes include administrative updates and clarifications to private security contractors (PSCs) performing duties while under contract to DoD in support of a contingency operations, humanitarian or peace operations, or other military operations or exercises. DATES: This rule is effective on October 11, 2022. FOR FURTHER INFORMATION CONTACT: Ms. Donna M. Livingston, 703–692–3032, donna.m.livingston.civ@mail.mil. SUPPLEMENTARY INFORMATION: SUMMARY: Legal Authority This section of the CFR was last updated in a final rule published in the Federal Register (76 FR 49650) on August 11, 2011. DoD is finalizing this rule to meet the mandates of NDAA for FY 2017 and 2020 and updates to DoD policy that require the Department to propose additional guidance on inherently governmental functions, PSC compliance with national and international recognized quality assurance management standards, and to add new definitions for total force and arming authorities. DoD also added language requiring PSCs to cooperate with DoD on all U.S. Government investigations. Additional language is also provided to state DoD is responsible for providing the appropriate contract administration oversight of PSCs. The corresponding internal DoD policy is established in DoD Instruction 3020.50, ‘‘Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises,’’ published on July 22, 2009, and last updated on August 31, 2018. This Instruction will be updated based on publication of this final rule. For additional information, DoD Instruction 3020.50 can be accessed at https://www.esd.whs.mil/ Portals/54/Documents/DD/issuances/ dodi/302050p.pdf. Discussion of Comments Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises 31 CFR Part 587 jspears on DSK121TN23PROD with RULES transactions ordinarily incident and necessary to the official business of third-country diplomatic or consular missions located in the Russian Federation that are prohibited by Executive Order (E.O.) 14024 or section 1(a)(iv) of E.O. 14068. (b) This general license does not authorize: (1) The opening or maintaining of a correspondent account or payablethrough account for or on behalf of any entity subject to Directive 2 under E.O. 14024, Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions; (2) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, or the Ministry of Finance of the Russian Federation; (3) The exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of U.S. dollar-denominated banknotes to the Government of the Russian Federation, other than the payment of taxes or fees, and purchase or receipt of permits, licenses, or public utility services; or (4) Any transactions otherwise involving any person blocked pursuant to the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587, unless separately authorized. 55281 Sfmt 4700 A proposed rule titled ‘‘Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises’’ was published in the Federal Register (86 FR 28042) on May 25, 2021. Two commenters provided comments and the Department’s responses are as follows. E:\FR\FM\09SER1.SGM 09SER1 55282 Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations Comment: One comment discussed operational energy-related issues including registering activities involved with maintenance and security of the electrical grid, coordinating the activities of other U.S. Government entities operating in the area of operation, and coordinating with the host government on matters related to infrastructure in the area of operation. Response: While the Department appreciates the comment, it does not specifically address private security contractors and does not require a change to the rule. Comment: The second comment was supportive of the rule and suggested the new guidance be made readily available to all contractors. The commenter also opined that these policies should be strictly enforced with increased penalties for those that do not follow the requirements of the rule. Response: The Department appreciates the comment. The new guidance will be made available to the contractors through publication on public websites and will be shared with the contracting community and industry groups to support wider dissemination. Enforcement and penalties are not decided at the Department level. They must be considered and assessed on an individual contract basis. As no public comment required changes to the rule, the Department is finalizing the rule with minor administrative edits to provide additional clarity. jspears on DSK121TN23PROD with RULES Expected Impact of the Final Rule As no public comment was received on the economic analysis of the proposed rule, the Department is finalizing this section with no changes. Separate from this amendment rule, contractors are required to report certain types of incidents to the combatant commander (CCDR) with the geographic area of responsibility (AOR) in which they are assigned and in accordance with orders and instructions established by those commanders. Total Costs for Non-Government and Government The Office of the Secretary of Defense (OSD) subject matter experts on contractors performing private security functions have estimated an average of 4 incidents per month or 48 incidents (responses) per year from 12 respondents. Based on the nature of the task, the subject matter experts determined that it takes approximately 30 minutes for each contractor to retrieve, prepare, and submit the information for each incident report. Based on our assessment, the VerDate Sep<11>2014 17:26 Sep 08, 2022 Jkt 256001 complexity of the reporting requirement is equivalent to that of a GS–11, step 5. See the rate calculation below. The estimated annual cost to contractors for receiving, preparing, and submitting the information for incidents is as follows: Cost per hour Total ....................................... 45.29 Total Rounded to nearest whole dollar ........................ 45.00 A. Executive Order 12866, ‘‘Regulatory Planning and Review’’ and Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’ These Executive orders direct Number of respondents ........ 12 agencies to assess all costs, benefits, and Responses per respondent .. 4 available regulatory alternatives and, if Number of responses (a) ..... 48 regulation is necessary, to select Hours per response (b) ........ .5 regulatory approaches that maximize Estimated hours (number of net benefits (including potential responses multiplied hours economic, environmental, public health per response) .................... 24 and safety effects, distributive impacts, Cost per hour (c) .................. $45 and equity). These Executive orders Total cost to respondents ..... $1,080 emphasize the importance of quantifying both costs and benefits, of We estimate that the U.S. Government reducing costs, of harmonizing rules, receives approximately 48 contractor and of promoting flexibility. This rule incident reports each year. According to has been designated a ‘‘non-significant OSD subject matter experts on regulatory action’’ under section 3(f) of contractors performing private security Executive Order 12866. functions, it takes approximately 30 B. Congressional Review Act (5 U.S.C. minutes for the U.S. Government to 801 et seq.) receive, review, and analyze the information for each incident reported Pursuant to the Congressional Review by a contractor. Act, this rule has not been designated a Based on our assessment, the major rule, as defined by 5 U.S.C. complexity of the work is equivalent to 804(2). that of a GS–11, step 5. See the rate calculation below. The estimated annual C. Public Law 96–354, ‘‘Regulatory Flexibility Act’’ (5 U.S.C. 601) cost to the U.S. Government for receiving, reviewing, analyzing, and The Under Secretary of Defense for forwarding the information submitted Acquisition and Sustainment certified by the contractor is as follows: that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) ESTIMATION OF FEDERAL GOVERNbecause it would not, if promulgated, MENT BURDEN HOURS: OMB CON- have a significant economic impact on a substantial number of small entities. TROL NUMBER 0704–0549 Therefore, the Regulatory Flexibility Number of responses (a) ..... 48 Act, as amended, does not require us to Hours per response (b) ........ .5 prepare a regulatory flexibility analysis. ESTIMATION OF RESPONDENT BURDEN HOURS: OFFICE OF MANAGEMENT AND BUDGET (OMB) CONTROL NUMBER 0704–0549 Estimated hours (number of responses multiplied hours per response) .................... Cost per hour (c) .................. Annual Federal Government burden (estimated hours multiplied by cost per hour) .................................. D. Sec. 202, Public Law 104–4, ‘‘Unfunded Mandates Reform Act’’ Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to $1,080 assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of The hourly rate was calculated by $100 million in 1995 dollars, updated adding an overhead factor of 36.25 percent (taken from OMB Memo M–08– annually for inflation. This rule will not 13, which provides standard cost factors mandate any requirements for State, local, or tribal governments, nor will it for agency use) to the calendar year affect private sector costs. 2019 Office of Personnel Management rate for the Rest of the United States for E. Public Law 96–511, ‘‘Paperwork a GS–11, step 5; $33.24. Reduction Act’’ (44 U.S.C. Chapter 35) Labor rate calculation: It has been determined that this amendment rule does not impose Cost per hour additional reporting or recordkeeping GS–11, step 5 as follows ............. $33.24 requirements under the Paperwork OMB burden @36.25% ................ 12.05 Reduction Act of 1995. There is an PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 24 $45 E:\FR\FM\09SER1.SGM 09SER1 Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations existing information collection for 32 CFR part 159 that has been reviewed and approved by the OMB under OMB Control Number 0704–0549, ‘‘Defense Federal Acquisition Regulation Supplement, part 225, Foreign Acquisition, and Defense Contractors Performing Private Security Functions Outside the United States.’’ The amendments to this rule neither increase nor decrease the public burden nor cost to the Federal Government associated with this collection. F. Executive Order 13132, ‘‘Federalism’’ Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. This rule will not have a substantial effect on State and local governments. G. Executive Order 13175, ‘‘Consultation and Coordination With Indian Tribal Governments’’ Executive Order 13175 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct compliance costs on one or more Indian tribes, preempts tribal law, or effects the distribution of power and responsibilities between the Federal Government and Indian tribes. This rule will not have a substantial effect on Indian tribal governments. List of Subjects in 32 CFR Part 159 Government contracts, Reporting and recordkeeping requirements, Security measures. Accordingly, 32 CFR part 159 is amended as follows: PART 159—PRIVATE SECURITY CONTRACTORS (PSCs) OPERATING IN CONTINGENCY OPERATIONS, HUMANITARIAN OR PEACE OPERATIONS, OR OTHER MILITARY OPERATIONS OR EXERCISES 1. The authority citation for part 159 is revised to read as follows: ■ jspears on DSK121TN23PROD with RULES Authority: Sec. 862, Pub. L. 110–181, 122 Stat. 253; Sec. 832, Sec 853, Pub. L. 110–417, 122 Stat. 4535; Sec. 831–833, Pub L. 111– 383, 124 Stat. 4276. 2. Revise the heading for part 159 to read as set forth above. ■ 3. Amend § 159.2 by: ■ a. In paragraph (a)(1): ■ i. Adding ‘‘(CJCS)’’ after ‘‘Office of the Chairman of the Joint Chiefs of Staff’’. ■ VerDate Sep<11>2014 17:26 Sep 08, 2022 Jkt 256001 ii. Adding ‘‘(DoD)’’ after ‘‘the Office of the Inspector General of the Department of Defense’’. ■ iii. Removing ‘‘organizational entities in the Department of Defense’’ and adding in its place ‘‘organizational entities in the DoD’’. ■ b. Revising paragraph (a)(2). ■ c. Adding paragraph (a)(3). ■ d. Revising paragraph (b)(1). ■ e. In paragraph (b)(2), removing ‘‘USG-funded’’ and adding in its place ‘‘U.S.G.-funded’’. The revisions and addition read as follows: ■ § 159.2 Applicability and scope. * * * * * (a) * * * (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, as amended. 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 or other significant military operations for the limited purposes of this part. In such an instance, the standards 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. (3) The requirements of this part shall not apply to a nonprofit nongovernmental organization receiving grants or cooperative agreements for activities conducted within an area of other significant military operations if the Secretary of Defense and the Secretary of State agree that such organization may be exempted. An exemption may be granted by the agreement of the Secretary of Defense and the Secretary of State under this paragraph (a)(3) on an organization-byorganization or area-by-area basis. Such an exemption may not be granted with respect to an area of combat operations. (b) * * * (1) DoD PSCs and PSC personnel on contract and subcontract, at any tier, performing private security functions in support of contingency operations, humanitarian or peace operations, or other military operations or exercises outside the United States. * * * * * ■ 4. Amend § 159.3 by: ■ a. Adding the definition of ‘‘Arming authority’’ in alphabetical order. ■ b. Revising the definition of ‘‘Contingency operation,’’ ‘‘Covered PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 55283 contract,’’ ‘‘Other significant military operations,’’ and ‘‘Private security functions’’. ■ c. Removing the definition of ‘‘PSC’’. ■ d. Adding the definitions of ‘‘Private Security Contractor (PSC)’’ and ‘‘Total Force’’ in alphabetical order. The revisions and additions read as follows: § 159.3 Definitions. * * * * * Arming authority. A Combatant Commander (CCDR) with responsibility for the applicable geographic area concerned, or a person or persons designated by that Commander who can authorize the arming of civilians under their authority or supervision for security functions or to permit the carrying of firearms for personal protection in support of operations outside the United States. Contingency operation. Per 10 U.S.C. 101(a)(13)(a), a military operation that is designated by the Secretary of Defense as a contingency operation, or that becomes a contingency operation as a matter of law in accordance with 10 U.S.C. 101(a)(13)(b). * * * * * Covered contract. (1) A DoD contract for performance of services and/or delivery of supplies in an area of contingency operations, humanitarian or peace operations, or other military operations or exercises outside the United States or non-DoD Federal agency contract for performance of services and/or delivery of supplies in an area of combat operations or other significant military operations, as designated by the Secretary of Defense; a subcontract at any tier under such contracts; or a task order or delivery order issued under such contracts or subcontracts. (2) Excludes temporary arrangements entered into by non-DoD contractors for the performance of private security functions by individual indigenous personnel not affiliated with a local or expatriate security company. Other significant military operations. (1) Activities, other than combat operations, as part of an overseas contingency operation that are carried out by U.S. Armed Forces in an uncontrolled or unpredictable highthreat environment where personnel performing security functions may be called upon to use deadly force. (2) With respect to an area of other significant military operations, the requirements of this part shall apply only upon agreement of the Secretary of Defense and the Secretary of State. Such an agreement of the Secretary of Defense and the Secretary of State may be made E:\FR\FM\09SER1.SGM 09SER1 55284 Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations only on an area-by-area basis. With respect to an area of combat operations, the requirements of this part shall always apply. Private security functions. Activities engaged in by a contractor under a covered contract as follows: (1) Guarding personnel, facilities, designated sites, or property of a Federal agency, the contractor or subcontractor, or a third party. (2) Any other activity for which personnel are required to carry weapons in the performance of their duties in accordance with the terms of their contract. For the DoD, DoD Instruction 3020.41, ‘‘Operational Contract Support (OCS)’’ (available at https:// www.esd.whs.mil/Portals/54/ Documents/DD/issuances/dodi/ 302041p.pdf) prescribes policies related to personnel allowed to carry weapons for self-defense. (3) Contractors, including those performing private security functions, are not authorized to perform inherently governmental functions. In this regard, armed contractors are limited in the use of force to a defensive response to hostile acts or demonstrated hostile intent. Private Security Contractor (PSC). A company contracted by the U.S.G. to perform private security functions under a covered contract. * * * * * Total Force. The organizations, units, and individuals that comprise DoD’s resources for implementing the National Security Strategy. It includes the DoD Active and Reserve Component military personnel, DoD civilian personnel (including foreign national direct-hires as well as non-appropriated fund employees), contracted support, and host nation support personnel. § 159.4 [Amended] 5. Amend § 159.4 by: a. In paragraph (a): i. Adding ‘‘as amended,’’ after ‘‘Public Law 110–181,’’. ■ ii. Removing ‘‘section 159.5 of this part’’ and adding in its place ‘‘§ 159.5’’. ■ b. In paragraph (b): ■ i. Removing ‘‘Geographic Combatant Commanders’’ and adding in its place ‘‘Combatant Commanders (CCDRs) with geographic Areas of Responsibility (AORs)’’. ■ ii. Redesignating footnotes 4 and 5 as footnotes 1 and 2. ■ c. In paragraph (c): ■ i. Removing ‘‘geographic Combatant Commander’’ and adding in its place ‘‘CCDR for the applicable geographic AOR’’ wherever it appears. ■ ii. Adding ‘‘(COM)’’ after ‘‘the relevant Chief of Mission’’ in the first sentence. jspears on DSK121TN23PROD with RULES ■ ■ ■ VerDate Sep<11>2014 17:26 Sep 08, 2022 Jkt 256001 iii. Removing ‘‘Chief of Mission’’ and adding in its place ‘‘COM’’ in the second sentence. ■ 6. Revise § 159.5 to read as follows: ■ § 159.5 Responsibilities. (a) The Under Secretary of Defense for Personnel and Readiness (USD(P&R)) will provide Department-wide policies on the total force manpower mix and labor sourcing, consistent with U.S. law, the FAR, the DFARS, and other applicable Federal policy documents, especially with respect to contracted services and restrictions on functions that contractors may and may not perform. The USD(P&R) will ensure that policies specifically address circumstances where use of PSCs would be inherently governmental or where CCDRs with geographic AORs would need to assess where performance of the function by PSCs or total reliance on PSCs would constitute an unacceptable risk. (b) The Deputy Assistant Secretary of Defense for Logistics (DASD(Logistics)), under the authority, direction, and control of the Under Secretary of Defense for Acquisition and Sustainment (USD(A&S)) and through the Assistant Secretary of Defense for Sustainment, monitors the registering, processing, and accounting of PSC personnel in areas of contingency operations, humanitarian or peace operations, or other military operations or exercises. (c) The Principal Director, Defense Pricing and Contracting (DPC), under the authority, direction, and control of the USD(A&S) and through the Assistant Secretary of Defense for Acquisition, ensures that the DFARS and (when appropriate, in consultation with the other members of the FAR Council) the FAR, provides appropriate guidance and publishes contracting requirements pursuant to this part and section 862 of Public Law 110–181. (d) The CJCS shall ensure that joint doctrine is consistent with the principles established by DoD Directive 3020.49, ‘‘Program Management for the Planning and Execution of Operational Contract Support’’ (available at https:// www.esd.whs.mil/Portals/54/ Documents/DD/issuances/dodd/ 302049d.pdf?ver=fgxC1kzBqeIV4 KpOv9pDTw%3d%3d); DoD Instruction 3020.41, DoD Directive 5210.56, ‘‘Arming and the Use of Force’’ (available at https://www.esd.whs.mil/ Portals/54/Documents/DD/issuances/ dodd/521056p.PDF?ver=PIvIb3eht 0obgolnD0UCEw%3d%3d); and this part. (e) CCDRs with responsibility for the AOR in which contingency operations, PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 humanitarian or peace operations, or other military operations or exercises are 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, DoD Instruction 3020.41, DoD Instruction 1100.22, ‘‘Policy and Procedures for Determining Workforce Mix’’ (available at https:// www.esd.whs.mil/Portals/54/ Documents/DD/issuances/dodi/ 110022p.pdf); DFARS, 48 CFR 225.302, 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 Combatant Command (CCMD) with a designated geographic AOR, a sub unified commander or JFC shall be responsible for developing and issuing implementing procedures as warranted by the situation, operation, and environment, in consultation with the relevant COM in designated areas of combat operations or other significant military operations. (2) Through the Contracting Officer, the PSC should acknowledge that its personnel understand their obligation to comply with the terms and conditions of applicable 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 shall be included with the written authorization, if not previously provided. Rules for the Use of Force shall conform to the guidance in DoD Directive 5210.56 and the CJCS Instruction 3121.01B, ‘‘Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces.’’ Offerors’ and contractors’ access to the Rules for the Use of Force may be controlled in accordance with the terms of FAR, 48 CFR 52.204–2, ‘‘Security Requirements’’; DFARS, 48 CFR 252.204–7000, ‘‘Disclosure of Information’’; or both.1 (4) Ensure that the procedures, orders, directives, and instructions prescribed in § 159.6 are available through a single location (including an internet website, 1 CJCS Instruction 3121.01B provides guidance on the standing rules of engagement (SROE) and establishes standing rules for the use of force for DoD operations worldwide. This document is classified secret. CJCS Instruction 3121.01B is available via Secure internet Protocol Router Network at https://jsportal.osd.smil.mil. E:\FR\FM\09SER1.SGM 09SER1 jspears on DSK121TN23PROD with RULES Federal Register / Vol. 87, No. 174 / Friday, September 9, 2022 / Rules and Regulations 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 and the guidance and procedures issued by the CCMD of the applicable geographic AOR. (2) Ensure private security-related solicitations and contracts contain the appropriate clauses in accordance with the applicable FAR and DFARS clauses and include additional mission-specific requirements as appropriate. (3) In coordination with the appropriate requiring activity (or activities), ensure the head of the contracting activity responsible for each covered contract takes appropriate steps to assign sufficient oversight personnel to the contract to verify that the contractor responsible for performing private security functions complies with the requirements of this part. This includes ensuring that the contracting officer coordinates with the requiring activity to nominate and appoint a qualified contracting officer’s representative (COR) or other multiple or alternate CORs, in accordance with DoD Instruction 5000.72, ‘‘DoD Standard for Contracting Officer’s Representative (COR) Certification’’ (available at https://www.esd.whs.mil/ Portals/54/Documents/DD/issuances/ dodi/500072p.pdf). ■ 7. Amend § 159.6 by: ■ a. Revising paragraph (a) introductory text. ■ b. In paragraph (a)(1)(i), removing ‘‘, ‘‘Contractor Personnel Authorized to Accompany the U.S. Armed Forces.’’ ’’ and adding a period in its place. ■ c. In paragraph (a)(1)(iii) introductory text: ■ i. Removing ‘‘geographic Combatant Commander’’ and adding in its place ‘‘CCDR of the geographic AOR’’ wherever it appears. ■ ii. Removing ‘‘of this part’’. ■ d. In paragraph (a)(1)(iii)(C): ■ i. Removing ‘‘ ‘‘Guidance for Determining Workforce Mix,’’ ’’ and adding in its place ‘‘ ‘‘Policy and Procedures for Determining Workforce Mix,’’ ’’. ■ ii. Redesignating footnote 12 as footnote 1. ■ e. In paragraph (a)(1)(iii)(F)(1), redesignating footnote 13 as footnote 2. ■ f. In paragraph (a)(1)(iv), adding ‘‘PSC personnel, weapons,’’ before ‘‘armored vehicles’’. ■ g. In paragraph (a)(1)(v)(F), removing ‘‘TASER guns’’ and adding in its place ‘‘disruption devices’’. VerDate Sep<11>2014 17:26 Sep 08, 2022 Jkt 256001 h. In paragraph (a)(1)(viii), removing ‘‘commander of a combatant command may request’’ and adding in its place ‘‘CCDR may, through the contracting officer, request’’. ■ i. In paragraph (a)(1)(x), removing ‘‘paragraph (a)(2)(ii)’’ and adding in its place ‘‘paragraph (a)(2)(iii)’’. ■ j. In paragraph (a)(2)(i), removing ‘‘, ‘‘Contractor Personnel Authorized to Accompany the U.S. Armed Forces.’’ ’’ and adding a period in its place. ■ k. Redesignating paragraphs (a)(2)(ii) through (iv) as paragraphs (a)(2)(iii) through (v) and adding new paragraph (a)(2)(ii). ■ l. Further redesignating newly redesignated paragraph (a)(2)(v) as paragraph (a)(2)(vi) and adding new paragraph (a)(2)(v). ■ m. In newly redesignated paragraph (a)(2)(vi), removing ‘‘Chief of Mission’’ and adding in its place ‘‘COM’’. ■ n. Removing paragraph (b) and redesignating paragraphs (c) and (d) as paragraphs (b) and (c). ■ o. In newly redesignated paragraph (b): ■ i. Revising the paragraph heading. ■ ii. Removing ‘‘Chief of Mission’’ and ‘‘combatant command’’ and adding in their places ‘‘COM’’ and ‘‘CCDR’’, respectively. ■ p. In newly redesignated paragraph (c): ■ i. Revising the paragraph heading. ■ ii. Removing ‘‘Chief of Mission’’ and ‘‘geographic Combatant Commander/sub unified commander’’ and adding in their places ‘‘COM’’ and ‘‘CCDR with geographic AOR/sub unified commander’’, respectively. The revisions and additions read as follows: ■ § 159.6 Frm 00045 Fmt 4700 www.esd.whs.mil/Portals/54/ Documents/DD/issuances/dodm/5200 08rm.pdf); CJCS Instruction 3121.01B,, and DoD Directive 5210.56. The guidance and procedures shall: * * * * * (2) * * * (ii) Assessing compliance with DoD approved business and operational standards for private security functions. * * * * * (v) Requirements for the PSC to cooperate with any investigation conducted by the DoD, including by providing access to its employees and relevant information in its possession regarding the matter(s) under investigation. * * * * * (b) Subordinate guidance and procedures. * * * (c) Consultation and coordination. * * * Dated: August 29, 2022. Aaron T. Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2022–18992 Filed 9–8–22; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG–2022–0671] RIN 1625–AA00 Safety Zone; Steve Hemberger Wedding Fireworks, Bay Harbor, MI Coast Guard, DHS. Temporary final rule. AGENCY: Procedures. (a) Standing Combatant Command (CCMD) guidance and procedures. Each CCDR with a geographic AOR shall develop and publish guidance and procedures for PSCs and PSC personnel operating during contingency operations, humanitarian or peace operations, or other military operations or exercises within their AOR, consistent with applicable law; this part; applicable Military Department publications; and other applicable DoD issuances including DoD Directive 3020.49, DoD Instruction 1100.22, ‘‘Policy and Procedures for Determining Workforce Mix,’’ FAR, DFARS, DoD Instruction 3020.41, DoD Directive 2311.01E, ‘‘DoD Law of War Program’’ (available at https://www.esd.whs.mil/ Portals/54/Documents/DD/issuances/ dodd/231101p.pdf?ver=2020-07-02143157-007); DoD 5200.08–R, ‘‘Physical Security Program’’ (available at https:// PO 00000 55285 Sfmt 4700 ACTION: The Coast Guard is establishing a temporary safety zone for navigable waters within a 500-foot radius of a fireworks display in Bay Harbor, MI. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by repair work on the bridge. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sault Sainte Marie. DATES: This rule is effective from 11 p.m. on October 1, 2022 through 12 a.m. on October 2, 2022. ADDRESSES: To view documents mentioned in this preamble as being available in the docket, go to https:// www.regulations.gov, type USCG–2022– 0671 in the search box and click ‘‘Search.’’ Next, in the Document Type SUMMARY: E:\FR\FM\09SER1.SGM 09SER1

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[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Rules and Regulations]
[Pages 55281-55285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18992]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 159

[Docket ID: DoD-2020-OS-0016]
RIN 0790-AK87


Private Security Contractors (PSCs) Operating in Contingency 
Operations, Humanitarian or Peace Operations, or Other Military 
Operations or Exercises

AGENCY: Office of the Under Secretary of Defense for Acquisition and 
Sustainment, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: The DoD is finalizing updates to this rule resulting from 
changes from the National Defense Authorization Act (NDAA) for Fiscal 
Years (FY) 2017 and 2020 as well as DoD policy updates. These changes 
include administrative updates and clarifications to private security 
contractors (PSCs) performing duties while under contract to DoD in 
support of a contingency operations, humanitarian or peace operations, 
or other military operations or exercises.

DATES: This rule is effective on October 11, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Donna M. Livingston, 703-692-3032, 
[email protected].

SUPPLEMENTARY INFORMATION:

Legal Authority

    This section of the CFR was last updated in a final rule published 
in the Federal Register (76 FR 49650) on August 11, 2011. DoD is 
finalizing this rule to meet the mandates of NDAA for FY 2017 and 2020 
and updates to DoD policy that require the Department to propose 
additional guidance on inherently governmental functions, PSC 
compliance with national and international recognized quality assurance 
management standards, and to add new definitions for total force and 
arming authorities. DoD also added language requiring PSCs to cooperate 
with DoD on all U.S. Government investigations. Additional language is 
also provided to state DoD is responsible for providing the appropriate 
contract administration oversight of PSCs.
    The corresponding internal DoD policy is established in DoD 
Instruction 3020.50, ``Private Security Contractors (PSCs) Operating in 
Contingency Operations, Humanitarian or Peace Operations, or Other 
Military Operations or Exercises,'' published on July 22, 2009, and 
last updated on August 31, 2018. This Instruction will be updated based 
on publication of this final rule. For additional information, DoD 
Instruction 3020.50 can be accessed at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302050p.pdf.

Discussion of Comments

    A proposed rule titled ``Private Security Contractors (PSCs) 
Operating in Contingency Operations, Humanitarian or Peace Operations, 
or Other Military Operations or Exercises'' was published in the 
Federal Register (86 FR 28042) on May 25, 2021.
    Two commenters provided comments and the Department's responses are 
as follows.

[[Page 55282]]

    Comment: One comment discussed operational energy-related issues 
including registering activities involved with maintenance and security 
of the electrical grid, coordinating the activities of other U.S. 
Government entities operating in the area of operation, and 
coordinating with the host government on matters related to 
infrastructure in the area of operation.
    Response: While the Department appreciates the comment, it does not 
specifically address private security contractors and does not require 
a change to the rule.
    Comment: The second comment was supportive of the rule and 
suggested the new guidance be made readily available to all 
contractors. The commenter also opined that these policies should be 
strictly enforced with increased penalties for those that do not follow 
the requirements of the rule.
    Response: The Department appreciates the comment. The new guidance 
will be made available to the contractors through publication on public 
websites and will be shared with the contracting community and industry 
groups to support wider dissemination. Enforcement and penalties are 
not decided at the Department level. They must be considered and 
assessed on an individual contract basis.
    As no public comment required changes to the rule, the Department 
is finalizing the rule with minor administrative edits to provide 
additional clarity.

Expected Impact of the Final Rule

    As no public comment was received on the economic analysis of the 
proposed rule, the Department is finalizing this section with no 
changes. Separate from this amendment rule, contractors are required to 
report certain types of incidents to the combatant commander (CCDR) 
with the geographic area of responsibility (AOR) in which they are 
assigned and in accordance with orders and instructions established by 
those commanders.

Total Costs for Non-Government and Government

    The Office of the Secretary of Defense (OSD) subject matter experts 
on contractors performing private security functions have estimated an 
average of 4 incidents per month or 48 incidents (responses) per year 
from 12 respondents. Based on the nature of the task, the subject 
matter experts determined that it takes approximately 30 minutes for 
each contractor to retrieve, prepare, and submit the information for 
each incident report. Based on our assessment, the complexity of the 
reporting requirement is equivalent to that of a GS-11, step 5. See the 
rate calculation below. The estimated annual cost to contractors for 
receiving, preparing, and submitting the information for incidents is 
as follows:

 Estimation of Respondent Burden Hours: Office of Management and Budget
                     (OMB) Control Number 0704-0549
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Number of respondents...................................              12
Responses per respondent................................               4
Number of responses (a).................................              48
Hours per response (b)..................................              .5
Estimated hours (number of responses multiplied hours                 24
 per response)..........................................
Cost per hour (c).......................................             $45
Total cost to respondents...............................          $1,080
------------------------------------------------------------------------

    We estimate that the U.S. Government receives approximately 48 
contractor incident reports each year. According to OSD subject matter 
experts on contractors performing private security functions, it takes 
approximately 30 minutes for the U.S. Government to receive, review, 
and analyze the information for each incident reported by a contractor.
    Based on our assessment, the complexity of the work is equivalent 
to that of a GS-11, step 5. See the rate calculation below. The 
estimated annual cost to the U.S. Government for receiving, reviewing, 
analyzing, and forwarding the information submitted by the contractor 
is as follows:

 Estimation of Federal Government Burden Hours: OMB Control Number 0704-
                                  0549
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Number of responses (a).................................              48
Hours per response (b)..................................              .5
Estimated hours (number of responses multiplied hours                 24
 per response)..........................................
Cost per hour (c).......................................             $45
Annual Federal Government burden (estimated hours                 $1,080
 multiplied by cost per hour)...........................
------------------------------------------------------------------------

    The hourly rate was calculated by adding an overhead factor of 
36.25 percent (taken from OMB Memo M-08-13, which provides standard 
cost factors for agency use) to the calendar year 2019 Office of 
Personnel Management rate for the Rest of the United States for a GS-
11, step 5; $33.24.
    Labor rate calculation:

------------------------------------------------------------------------
                        Cost per hour
------------------------------------------------------------------------
GS-11, step 5 as follows.....................................     $33.24
OMB burden @36.25%...........................................      12.05
    Total....................................................      45.29
                                                              ----------
    Total Rounded to nearest whole dollar....................      45.00
------------------------------------------------------------------------

A. Executive Order 12866, ``Regulatory Planning and Review'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review''

    These Executive orders direct agencies to assess all costs, 
benefits, and 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). These Executive orders 
emphasize the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been designated a ``non-significant regulatory action'' 
under section 3(f) of Executive Order 12866.

B. Congressional Review Act (5 U.S.C. 801 et seq.)

    Pursuant to the Congressional Review Act, this rule has not been 
designated a major rule, as defined by 5 U.S.C. 804(2).

C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The Under Secretary of Defense for Acquisition and Sustainment 
certified that this rule 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. 
Therefore, the Regulatory Flexibility Act, as amended, does not require 
us to prepare a regulatory flexibility analysis.

D. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any one year 
of $100 million in 1995 dollars, updated annually for inflation. This 
rule will not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    It has been determined that this amendment rule does not impose 
additional reporting or recordkeeping requirements under the Paperwork 
Reduction Act of 1995. There is an

[[Page 55283]]

existing information collection for 32 CFR part 159 that has been 
reviewed and approved by the OMB under OMB Control Number 0704-0549, 
``Defense Federal Acquisition Regulation Supplement, part 225, Foreign 
Acquisition, and Defense Contractors Performing Private Security 
Functions Outside the United States.'' The amendments to this rule 
neither increase nor decrease the public burden nor cost to the Federal 
Government associated with this collection.

F. Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has federalism 
implications. This rule will not have a substantial effect on State and 
local governments.

G. Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct compliance costs on one or 
more Indian tribes, preempts tribal law, or effects the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes. This rule will not have a substantial effect on Indian tribal 
governments.

List of Subjects in 32 CFR Part 159

    Government contracts, Reporting and recordkeeping requirements, 
Security measures.

    Accordingly, 32 CFR part 159 is amended as follows:

PART 159--PRIVATE SECURITY CONTRACTORS (PSCs) OPERATING IN 
CONTINGENCY OPERATIONS, HUMANITARIAN OR PEACE OPERATIONS, OR OTHER 
MILITARY OPERATIONS OR EXERCISES

0
1. The authority citation for part 159 is revised to read as follows:

    Authority: Sec. 862, Pub. L. 110-181, 122 Stat. 253; Sec. 832, 
Sec 853, Pub. L. 110-417, 122 Stat. 4535; Sec. 831-833, Pub L. 111-
383, 124 Stat. 4276.


0
2. Revise the heading for part 159 to read as set forth above.

0
3. Amend Sec.  159.2 by:
0
a. In paragraph (a)(1):
0
i. Adding ``(CJCS)'' after ``Office of the Chairman of the Joint Chiefs 
of Staff''.
0
ii. Adding ``(DoD)'' after ``the Office of the Inspector General of the 
Department of Defense''.
0
iii. Removing ``organizational entities in the Department of Defense'' 
and adding in its place ``organizational entities in the DoD''.
0
b. Revising paragraph (a)(2).
0
c. Adding paragraph (a)(3).
0
d. Revising paragraph (b)(1).
0
e. In paragraph (b)(2), removing ``USG-funded'' and adding in its place 
``U.S.G.-funded''.
    The revisions and addition read as follows:


Sec.  159.2  Applicability and scope.

* * * * *
    (a) * * *
    (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, 
as amended. 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 or other significant military operations for 
the limited purposes of this part. In such an instance, the standards 
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.
    (3) The requirements of this part shall not apply to a nonprofit 
nongovernmental organization receiving grants or cooperative agreements 
for activities conducted within an area of other significant military 
operations if the Secretary of Defense and the Secretary of State agree 
that such organization may be exempted. An exemption may be granted by 
the agreement of the Secretary of Defense and the Secretary of State 
under this paragraph (a)(3) on an organization-by-organization or area-
by-area basis. Such an exemption may not be granted with respect to an 
area of combat operations.
    (b) * * *
    (1) DoD PSCs and PSC personnel on contract and subcontract, at any 
tier, performing private security functions in support of contingency 
operations, humanitarian or peace operations, or other military 
operations or exercises outside the United States.
* * * * *

0
4. Amend Sec.  159.3 by:
0
a. Adding the definition of ``Arming authority'' in alphabetical order.
0
b. Revising the definition of ``Contingency operation,'' ``Covered 
contract,'' ``Other significant military operations,'' and ``Private 
security functions''.
0
c. Removing the definition of ``PSC''.
0
d. Adding the definitions of ``Private Security Contractor (PSC)'' and 
``Total Force'' in alphabetical order.
    The revisions and additions read as follows:


Sec.  159.3  Definitions.

* * * * *
    Arming authority. A Combatant Commander (CCDR) with responsibility 
for the applicable geographic area concerned, or a person or persons 
designated by that Commander who can authorize the arming of civilians 
under their authority or supervision for security functions or to 
permit the carrying of firearms for personal protection in support of 
operations outside the United States.
    Contingency operation. Per 10 U.S.C. 101(a)(13)(a), a military 
operation that is designated by the Secretary of Defense as a 
contingency operation, or that becomes a contingency operation as a 
matter of law in accordance with 10 U.S.C. 101(a)(13)(b).
* * * * *
    Covered contract. (1) A DoD contract for performance of services 
and/or delivery of supplies in an area of contingency operations, 
humanitarian or peace operations, or other military operations or 
exercises outside the United States or non-DoD Federal agency contract 
for performance of services and/or delivery of supplies in an area of 
combat operations or other significant military operations, as 
designated by the Secretary of Defense; a subcontract at any tier under 
such contracts; or a task order or delivery order issued under such 
contracts or subcontracts.
    (2) Excludes temporary arrangements entered into by non-DoD 
contractors for the performance of private security functions by 
individual indigenous personnel not affiliated with a local or 
expatriate security company.
    Other significant military operations. (1) Activities, other than 
combat operations, as part of an overseas contingency operation that 
are carried out by U.S. Armed Forces in an uncontrolled or 
unpredictable high-threat environment where personnel performing 
security functions may be called upon to use deadly force.
    (2) With respect to an area of other significant military 
operations, the requirements of this part shall apply only upon 
agreement of the Secretary of Defense and the Secretary of State. Such 
an agreement of the Secretary of Defense and the Secretary of State may 
be made

[[Page 55284]]

only on an area-by-area basis. With respect to an area of combat 
operations, the requirements of this part shall always apply.
    Private security functions. Activities engaged in by a contractor 
under a covered contract as follows:
    (1) Guarding personnel, facilities, designated sites, or property 
of a Federal agency, the contractor or subcontractor, or a third party.
    (2) Any other activity for which personnel are required to carry 
weapons in the performance of their duties in accordance with the terms 
of their contract. For the DoD, DoD Instruction 3020.41, ``Operational 
Contract Support (OCS)'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302041p.pdf) prescribes policies related 
to personnel allowed to carry weapons for self-defense.
    (3) Contractors, including those performing private security 
functions, are not authorized to perform inherently governmental 
functions. In this regard, armed contractors are limited in the use of 
force to a defensive response to hostile acts or demonstrated hostile 
intent.
    Private Security Contractor (PSC). A company contracted by the 
U.S.G. to perform private security functions under a covered contract.
* * * * *
    Total Force. The organizations, units, and individuals that 
comprise DoD's resources for implementing the National Security 
Strategy. It includes the DoD Active and Reserve Component military 
personnel, DoD civilian personnel (including foreign national direct-
hires as well as non-appropriated fund employees), contracted support, 
and host nation support personnel.


Sec.  159.4  [Amended]

0
5. Amend Sec.  159.4 by:
0
a. In paragraph (a):
0
i. Adding ``as amended,'' after ``Public Law 110-181,''.
0
ii. Removing ``section 159.5 of this part'' and adding in its place 
``Sec.  159.5''.
0
b. In paragraph (b):
0
i. Removing ``Geographic Combatant Commanders'' and adding in its place 
``Combatant Commanders (CCDRs) with geographic Areas of Responsibility 
(AORs)''.
0
ii. Redesignating footnotes 4 and 5 as footnotes 1 and 2.
0
c. In paragraph (c):
0
i. Removing ``geographic Combatant Commander'' and adding in its place 
``CCDR for the applicable geographic AOR'' wherever it appears.
0
ii. Adding ``(COM)'' after ``the relevant Chief of Mission'' in the 
first sentence.
0
iii. Removing ``Chief of Mission'' and adding in its place ``COM'' in 
the second sentence.

0
6. Revise Sec.  159.5 to read as follows:


Sec.  159.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)) will provide Department-wide policies on the total force 
manpower mix and labor sourcing, consistent with U.S. law, the FAR, the 
DFARS, and other applicable Federal policy documents, especially with 
respect to contracted services and restrictions on functions that 
contractors may and may not perform. The USD(P&R) will ensure that 
policies specifically address circumstances where use of PSCs would be 
inherently governmental or where CCDRs with geographic AORs would need 
to assess where performance of the function by PSCs or total reliance 
on PSCs would constitute an unacceptable risk.
    (b) The Deputy Assistant Secretary of Defense for Logistics 
(DASD(Logistics)), under the authority, direction, and control of the 
Under Secretary of Defense for Acquisition and Sustainment (USD(A&S)) 
and through the Assistant Secretary of Defense for Sustainment, 
monitors the registering, processing, and accounting of PSC personnel 
in areas of contingency operations, humanitarian or peace operations, 
or other military operations or exercises.
    (c) The Principal Director, Defense Pricing and Contracting (DPC), 
under the authority, direction, and control of the USD(A&S) and through 
the Assistant Secretary of Defense for Acquisition, ensures that the 
DFARS and (when appropriate, in consultation with the other members of 
the FAR Council) the FAR, provides appropriate guidance and publishes 
contracting requirements pursuant to this part and section 862 of 
Public Law 110-181.
    (d) The CJCS shall ensure that joint doctrine is consistent with 
the principles established by DoD Directive 3020.49, ``Program 
Management for the Planning and Execution of Operational Contract 
Support'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/302049d.pdf?ver=fgxC1kzBqeIV4KpOv9pDTw%3d%3d); DoD 
Instruction 3020.41, DoD Directive 5210.56, ``Arming and the Use of 
Force'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/521056p.PDF?ver=PIvIb3eht0obgolnD0UCEw%3d%3d); and this 
part.
    (e) CCDRs with responsibility for the AOR in which contingency 
operations, humanitarian or peace operations, or other military 
operations or exercises are 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, DoD 
Instruction 3020.41, DoD Instruction 1100.22, ``Policy and Procedures 
for Determining Workforce Mix'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/110022p.pdf); DFARS, 48 CFR 
225.302, 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 Combatant Command (CCMD) with a 
designated geographic AOR, a sub unified commander or JFC shall be 
responsible for developing and issuing implementing procedures as 
warranted by the situation, operation, and environment, in consultation 
with the relevant COM in designated areas of combat operations or other 
significant military operations.
    (2) Through the Contracting Officer, the PSC should acknowledge 
that its personnel understand their obligation to comply with the terms 
and conditions of applicable 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 shall be included with the written authorization, if not 
previously provided. Rules for the Use of Force shall conform to the 
guidance in DoD Directive 5210.56 and the CJCS Instruction 3121.01B, 
``Standing Rules of Engagement/Standing Rules for the Use of Force for 
U.S. Forces.'' Offerors' and contractors' access to the Rules for the 
Use of Force may be controlled in accordance with the terms of FAR, 48 
CFR 52.204-2, ``Security Requirements''; DFARS, 48 CFR 252.204-7000, 
``Disclosure of Information''; or both.\1\
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    \1\ CJCS Instruction 3121.01B provides guidance on the standing 
rules of engagement (SROE) and establishes standing rules for the 
use of force for DoD operations worldwide. This document is 
classified secret. CJCS Instruction 3121.01B is available via Secure 
internet Protocol Router Network at https://jsportal.osd.smil.mil.
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    (4) Ensure that the procedures, orders, directives, and 
instructions prescribed in Sec.  159.6 are available through a single 
location (including an internet website,

[[Page 55285]]

consistent with security considerations and requirements).
    (f) The Heads of the DoD Components shall:
    (1) Ensure that all private security-related requirement documents 
are in compliance with the procedures listed in Sec.  159.6 and the 
guidance and procedures issued by the CCMD of the applicable geographic 
AOR.
    (2) Ensure private security-related solicitations and contracts 
contain the appropriate clauses in accordance with the applicable FAR 
and DFARS clauses and include additional mission-specific requirements 
as appropriate.
    (3) In coordination with the appropriate requiring activity (or 
activities), ensure the head of the contracting activity responsible 
for each covered contract takes appropriate steps to assign sufficient 
oversight personnel to the contract to verify that the contractor 
responsible for performing private security functions complies with the 
requirements of this part. This includes ensuring that the contracting 
officer coordinates with the requiring activity to nominate and appoint 
a qualified contracting officer's representative (COR) or other 
multiple or alternate CORs, in accordance with DoD Instruction 5000.72, 
``DoD Standard for Contracting Officer's Representative (COR) 
Certification'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/500072p.pdf).

0
7. Amend Sec.  159.6 by:
0
a. Revising paragraph (a) introductory text.
0
b. In paragraph (a)(1)(i), removing ``, ``Contractor Personnel 
Authorized to Accompany the U.S. Armed Forces.'' '' and adding a period 
in its place.
0
c. In paragraph (a)(1)(iii) introductory text:
0
i. Removing ``geographic Combatant Commander'' and adding in its place 
``CCDR of the geographic AOR'' wherever it appears.
0
ii. Removing ``of this part''.
0
d. In paragraph (a)(1)(iii)(C):
0
i. Removing `` ``Guidance for Determining Workforce Mix,'' '' and 
adding in its place `` ``Policy and Procedures for Determining 
Workforce Mix,'' ''.
0
ii. Redesignating footnote 12 as footnote 1.
0
e. In paragraph (a)(1)(iii)(F)(1), redesignating footnote 13 as 
footnote 2.
0
f. In paragraph (a)(1)(iv), adding ``PSC personnel, weapons,'' before 
``armored vehicles''.
0
g. In paragraph (a)(1)(v)(F), removing ``TASER guns'' and adding in its 
place ``disruption devices''.
0
h. In paragraph (a)(1)(viii), removing ``commander of a combatant 
command may request'' and adding in its place ``CCDR may, through the 
contracting officer, request''.
0
i. In paragraph (a)(1)(x), removing ``paragraph (a)(2)(ii)'' and adding 
in its place ``paragraph (a)(2)(iii)''.
0
j. In paragraph (a)(2)(i), removing ``, ``Contractor Personnel 
Authorized to Accompany the U.S. Armed Forces.'' '' and adding a period 
in its place.
0
k. Redesignating paragraphs (a)(2)(ii) through (iv) as paragraphs 
(a)(2)(iii) through (v) and adding new paragraph (a)(2)(ii).
0
l. Further redesignating newly redesignated paragraph (a)(2)(v) as 
paragraph (a)(2)(vi) and adding new paragraph (a)(2)(v).
0
m. In newly redesignated paragraph (a)(2)(vi), removing ``Chief of 
Mission'' and adding in its place ``COM''.
0
n. Removing paragraph (b) and redesignating paragraphs (c) and (d) as 
paragraphs (b) and (c).
0
o. In newly redesignated paragraph (b):
0
i. Revising the paragraph heading.
0
ii. Removing ``Chief of Mission'' and ``combatant command'' and adding 
in their places ``COM'' and ``CCDR'', respectively.
0
p. In newly redesignated paragraph (c):
0
i. Revising the paragraph heading.
0
ii. Removing ``Chief of Mission'' and ``geographic Combatant Commander/
sub unified commander'' and adding in their places ``COM'' and ``CCDR 
with geographic AOR/sub unified commander'', respectively.
    The revisions and additions read as follows:


Sec.  159.6  Procedures.

    (a) Standing Combatant Command (CCMD) guidance and procedures. Each 
CCDR with a geographic AOR shall develop and publish guidance and 
procedures for PSCs and PSC personnel operating during contingency 
operations, humanitarian or peace operations, or other military 
operations or exercises within their AOR, consistent with applicable 
law; this part; applicable Military Department publications; and other 
applicable DoD issuances including DoD Directive 3020.49, DoD 
Instruction 1100.22, ``Policy and Procedures for Determining Workforce 
Mix,'' FAR, DFARS, DoD Instruction 3020.41, DoD Directive 2311.01E, 
``DoD Law of War Program'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/231101p.pdf?ver=2020-07-02-143157-007); DoD 5200.08-R, ``Physical Security Program'' (available at 
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520008rm.pdf); CJCS Instruction 3121.01B,, and DoD Directive 5210.56. 
The guidance and procedures shall:
* * * * *
    (2) * * *
    (ii) Assessing compliance with DoD approved business and 
operational standards for private security functions.
* * * * *
    (v) Requirements for the PSC to cooperate with any investigation 
conducted by the DoD, including by providing access to its employees 
and relevant information in its possession regarding the matter(s) 
under investigation.
* * * * *
    (b) Subordinate guidance and procedures. * * *
    (c) Consultation and coordination. * * *

    Dated: August 29, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-18992 Filed 9-8-22; 8:45 am]
BILLING CODE 5001-06-P

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