[Federal Register Volume 75, Number 209 (Friday, October 29, 2010)]
[Rules and Regulations]
[Pages 66683-66686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27305]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 246 and 252
RIN 0750-AG73
Defense Federal Acquisition Regulation Supplement; Safety of
Facilities, Infrastructure, and Equipment for Military Operations
(DFARS Case 2009-D029)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement section 807 of
the National Defense Authorization Act of 2010. Section 807 requires
that facilities, infrastructure, and equipment that are intended for
use by military or civilian personnel of the Department of Defense
(DoD), in current or future military operations, should be inspected
for safety and habitability prior to use, and that such facilities
should be brought into compliance with generally accepted standards for
the safety and health of personnel to the maximum extent practicable
consistent with the requirements of military operations and the best
interests of DoD to minimize the safety and health risk posed to such
personnel.
DATES: Effective date: October 29, 2010.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before December 28, 2010, to
be considered in the formation of the final rule.
ADDRESSES: Submit comments, identified by DFARS Case 2008-D029, using
any of the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``DFARS Case 2009-D029'' under the heading ``Enter keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``DFARS Case 2009-D029.'' Follow the instructions
provided at the ``Submit
[[Page 66684]]
a Comment'' screen. Please include your name, company name (if any),
and ``DFARS Case 2009-D029'' on your attached document.
E-mail: [email protected]. Include DFARS Case 2008-D029 in the subject
line of the message.
Fax: 703-602-0350.
Mail: Defense Acquisition Regulations System, Attn: Ms. Mary
Overstreet, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to
verify posting (except allow 30 days for posting of comments submitted
by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Mary Overstreet, 703-602-0311.
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule implements section 807 of the National Defense
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), which was
signed on October 28, 2009. Section 807 requires that--
Each contract, including task or delivery orders, entered
into for the construction, installation, repair, maintenance, or
operation of facilities, infrastructure, and equipment for use by DoD
military or civilian should be inspected for safety and habitability
prior to use to minimize the safety and health risk posed to such
personnel;
The term ``generally accepted standards'' shall be defined
with respect to fire protection, structural integrity, electrical
systems, plumbing, water treatment, waste disposal, and
telecommunications networks for the purposes of this section; and
Exceptions and limitations shall be provided as may be
needed to ensure that this section can be implemented in a manner that
is consistent with the requirements of military operations and the best
interests of the Department of Defense.
DoD amended DFARS subpart 246.2, Contract Quality Requirements, to
add section 246.270, Safety of Facilities, Infrastructure, and
Equipment for Military Operations. Part 252 is amended to include a new
contract clause, 252.246-7004, Safety of Facilities, Infrastructure,
and Equipment for Military Operations.
DFARS 246.270-1 provides for the scope to be limited to current or
future military operations performed outside the United States, Guam,
Puerto Rico, and the Virgin Islands.
DFARS 246.270-2 provides for the rule to apply to each contract,
including task and delivery orders, for construction, installation,
repair, maintenance, or operation of facilities. This includes
contracts for facilities, infrastructure, and equipment configured for
occupancy, including but not limited to, existing host nation
facilities, new construction, and relocatable buildings. Contracts will
require compliance with the Unified Facilities Criteria (UFC) 1-200-01
and its referenced standards to meet generally accepted standards for
fire protection, structural integrity, electrical systems, plumbing,
water treatment, waste disposal, and telecommunications networks.
Facilities, infrastructure, and equipment shall be inspected prior to
use for compliance with UFC 1-200-01 to ensure safety and habitability.
DFARS 246.270-3 allows the combatant commander to waive compliance
with any standards when compliance is impracticable under prevailing
operational conditions.
The new contract clause 252.246-7004, Safety of Facilities,
Infrastructure, and Equipment for Military Operations, provides for use
of the UFC 1-200-01 standards. The clause also provides for use of
facilities that are constructed to standards equivalent to or more
stringent than the UFC 1-200-01 standards based upon a written
determination by the Contracting Officer with the concurrence of the
relevant Discipline Working Group. The Discipline Working Group is
defined in the clause. Section 807 is applicable to contracts for the
acquisition of commercial items. Subpart 252.2, Text of Provisions and
Clauses, is amended to add 252.246.7004, Safety of Facilities,
Infrastructure, and Equipment for Military Operations, to 252.212-7001,
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders Applicable to Defense Acquisition of Commercial Items,
subparagraph (b)(22).
Contracting officers are encouraged to include this rule in
solicitations issued before the effective date, provided award occurs
after the effective date. Contracting officers are also encouraged to
apply this rule to the maximum extent practicable to existing
contracts, consistent with FAR 1.108(d).
II. Executive Order 12866
This rule is a significant regulatory action and, therefore, was
subject to review under section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD has prepared an initial regulatory flexibility analysis
consistent with 5 U.S.C. 603. A copy of the analysis may be obtained
from the point of contact specified herein. The analysis is summarized
as follows:
The rule affects contractors with contracts, including task and
delivery orders, in support of current and future military operations
for construction, installation, repair, maintenance, or operation of
facilities. This includes contracts for facilities, infrastructure, and
equipment configured for occupancy, including but not limited to,
existing host nation facilities, new construction, and relocatable
buildings.
Contracts will require compliance with the Unified Facilities
Criteria (UFC) 1-200-01 to meet generally accepted standards for fire
protection, structural integrity, electrical systems, plumbing, water
treatment, waste disposal, and telecommunications networks. Facilities,
infrastructure, and equipment shall be inspected prior to use to ensure
safety and habitability.
Military operations affected by this rule are those outside the
United States, Guam, Puerto Rico, and the Virgin Islands.
Contract support for recent military operations has been provided
primarily by the Department of Army's LOGCAP contracts, which were
awarded to large businesses. There are high costs associated with a
company being able to perform in the geographic regions where most
military operations are currently taking place. This makes it unlikely
that a small business could afford to sustain the infrastructure
required to perform these types of services in locations such as Iraq
and Afghanistan. Small business preferential programs under FAR part 19
may not apply to these contracts as they only apply to contracts placed
in the United States or its outlying areas. At this time, DoD is unable
to estimate the number of small entities to which this rule will apply.
However, based on the above factors, the number of small business firms
to which the rule would apply is expected to be minimal.
DoD invites comments from small businesses and other interested
parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit comments separately
and should cite 5
[[Page 66685]]
U.S.C. 610 (DFARS Case 2009-D029) in correspondence.
IV. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 96-511) does not apply because
the rule does not impose additional information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD) that urgent and compelling circumstances exist to
promulgate this interim rule without prior opportunity for public
comments. This action is necessary because section 807 of the National
Defense Authorization Act for Fiscal Year 2010 became effective 60 days
after enactment, October 28, 2009.
Section 807 requires that facilities, infrastructure, and equipment
that are intended for use by military or civilian personnel of the
Department of Defense (DoD), in current or future military operations,
should be inspected for safety and habitability prior to use and that
such facilities should be brought into compliance with generally
accepted standards for the safety and health of personnel to the
maximum extent practicable consistent with the requirements of military
operations. Implementing language must be published as quickly as
possible to minimize the safety and health risk posed to DoD military
or civilian personnel during military operations.
However, pursuant to 41 U.S.C. 418b and FAR 1.501-3, DoD will
consider public comments received in response to this interim rule in
the formation of the final rule.
List of Subjects in 48 CFR Parts 246 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 246 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 246 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 246--QUALITY ASSURANCE
0
2. Section 246.101 is added to read as follows:
246.101 Definitions.
Discipline Working Group, as used in this subpart, is defined in
the clause at 252.246-7004, Safety of Facilities, Infrastructure, and
Equipment for Military Operations.
0
3. Section 246.270 is added to read as follows:
246.270 Safety of facilities, infrastructure, and equipment for
military operations.
246.270-1 Scope.
This section implements section 807 of the National Defense
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84). It establishes
policies and procedures intended to ensure the safety and habitability
of facilities, infrastructure, and equipment acquired for use by DoD
military or civilian personnel during military operations performed
outside the United States, Guam, Puerto Rico, and the Virgin Islands.
246.270-2 Policy.
(a) Contracts (including task and delivery orders) for the
construction, installation, repair, maintenance, or operation of
facilities, infrastructure, and equipment configured for occupancy,
including but not limited to, existing host nation facilities, new
construction, and relocatable buildings acquired for use by DoD
military or civilian personnel, shall require a pre-occupancy safety
and habitability inspection.
(b) To minimize safety and health risks, each contract covered by
this policy shall require the contractor's compliance with the Unified
Facilities Criteria (UFC) 1-200-01 and its referenced standards for--
(1) Fire protection;
(2) Structural integrity;
(3) Electrical systems;
(4) Plumbing;
(5) Water treatment;
(6) Waste disposal; and
(7) Telecommunications networks.
(c) Existing host nation facilities constructed to standards
equivalent to or more stringent than UFC 1-200-01 are acceptable upon a
written determination of the acceptability of the standards by the
Discipline Working Group.
(d) Inspections to ensure compliance with UFC 1-200-01 standards
shall be conducted in accordance with the inspection clause of the
contract.
246.270-3 Exceptions.
The combatant commander may waive compliance with the foregoing
standards when it is impracticable to comply with such standards under
prevailing operational conditions.
246.270-4 Contract clause.
Use the clause at 252.246-7004, Safety of Facilities,
Infrastructure, and Equipment for Military Operations, in solicitations
and contracts for the construction, installation, repair, maintenance,
or operation of facilities, infrastructure, or for equipment configured
for occupancy, planned for use by DoD military or civilian personnel
during military operations.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Section 252.212-7001 is amended as follows:
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a. Redesignate paragraphs (b)(22), (b)(23), and (b)(24) as paragraphs
(b)(23), (b)(24), and (b)(25), respectively;
0
b. Add new paragraph (b)(22) to read as follows:
252.212-7001 Contract Terms and Conditions Required To Implement
Statutes or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
* * * * *
(b) * * *
(22)------ 252.246-7004, Safety of Facilities, Infrastructure, and
Equipment for Military Operations (OCT 2010) (Section 807 of Public Law
111-84).
* * * * *
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5. Section 252.246-7004 is added to read as follows:
252.246-7004 Safety of Facilities, Infrastructure, and Equipment for
Military Operations.
As prescribed in 246.270-4, use the following clause:
SAFETY OF FACILITIES, INFRASTRUCTURE, AND EQUIPMENT FOR MILITARY
OPERATIONS (OCT 2010)
(a) Definition. Discipline Working Group, as used in this
clause, means representatives from the DoD Components, as defined in
MIL-STD-3007F, who are responsible for the unification and
maintenance of the Unified Facilities Criteria (UFC) documents for a
particular discipline area.
(b) The Contractor shall ensure, consistent with the
requirements of the applicable inspection clause in this contract,
that the facilities, infrastructure, and equipment acquired,
constructed, installed, repaired, maintained, or operated under this
contract comply with Unified Facilities Criteria (UFC) 1-200-01
for--
(1) Fire protection;
(2) Structural integrity;
(3) Electrical systems;
(4) Plumbing;
(5) Water treatment;
(6) Waste disposal; and
(7) Telecommunications networks.
(c) The Contractor may apply a standard equivalent to or more
stringent than UFC 1-
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200-01 upon a written determination of the acceptability of the
standard by the Contracting Officer with the concurrence of the
relevant Discipline Working Group.
(End of clause)
[FR Doc. 2010-27305 Filed 10-28-10; 8:45 am]
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