[Federal Register Volume 76, Number 155 (Thursday, August 11, 2011)]
[Rules and Regulations]
[Pages 49650-49658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20239]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 159
[DOD-2008-OS-0125/RIN 0790-AI38]
Private Security Contractors (PSCs) Operating in Contingency
Operations, Combat Operations or Other Significant Military Operations
AGENCY: Office of the Under Secretary of Defense for Acquisition,
Technology, and Logistics, DoD.
ACTION: Final rule.
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SUMMARY: This Rule establishes policy, assigns responsibilities and
provides procedures for the regulation of the selection,
accountability, training, equipping, and conduct of personnel
performing private security functions under a covered contract during
contingency operations, combat operations or other significant military
operations. It also assigns responsibilities and establishes procedures
for incident reporting, use of and accountability for equipment, rules
for the use of force, and a process for administrative action or the
removal, as appropriate, of PSCs and PSC personnel. For the Department
of Defense, this Rule supplements DoD Instruction 3020.41, ``Contractor
Personnel Authorized to Accompany the U.S. Armed Forces,'' which
provides guidance for all DoD contractors operating in contingency
operations.
This Rule was published as an Interim Final Rule on July 17, 2009
because there was insufficient policy and guidance regulating the
actions of DoD and other governmental PSCs and their
[[Page 49651]]
movements in operational areas. This Rule ensures compliance with laws
and regulations pertaining to Inherently Governmental functions, and
ensures proper performance by armed contractors.
DATES: Effective Date: This rule is effective September 12, 2011.
FOR FURTHER INFORMATION CONTACT: Chris Mayer, Director, Armed
Contingency Contractor Policy and Programs, Office of the Deputy
Assistant Secretary of Defense (Program Support), (571) 232-2509.
SUPPLEMENTARY INFORMATION: The publication of this Rule is required to
meet the mandate of Section 862 of the 2008 National Defense
Authorization Act (NDAA), as amended by Section 813(b) of the 2010 NDAA
and Section 832 of the 2011 NDAA. DoD has determined that the updates
implementing Section 832 of the 2011 NDAA do not require additional
public comment. These updates are in direct compliance with current
statute, do not set a precedent in updating the interim final, and any
delay in implementing these updates would be detrimental to U.S.
security.
Background
This Final Rule \1\ is required to meet the mandate of Section 862
of the FY 2008 NDAA, as amended, which lays out two requirements:
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\1\ Nothing in this Final Rule is intended to reflect the views
of the DoD or the United States regarding the merits of any claim or
defense that may be asserted by a private party in any pending or
future litigation or disputes.
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(i) That the Secretary of Defense, in coordination with the
Secretary of State, shall prescribe regulations on the selection,
training, equipping, and conduct of personnel performing private
security functions under a covered contract in an area of combat
operations or other significant military operations; and
(ii) That the FAR shall be revised to require the insertion into
each covered contract (or, in the case of a task order, the contract
under which the task order is issued) of a contract clause addressing
the selection, training, equipping, and conduct of personnel performing
private security functions under such contract.
This Final Rule meets requirement (i). There will be a separate and
subsequent Federal Register action to meet requirement (ii) to update
the FAR. On July 17, 2009, an Interim Final Rule (32 CFR Part 159 DOD-
2008-OS-125/RIN 0790-AI38) was published and public comments were
solicited. At the end of the comment period, we received comments from
9 respondents, including the American Bar Association, IPOA, NGO groups
and members of the public. These comments are discussed below by topic.
Comment: Extent of Delegation of Implementation Authority to Each
Geographic Combatant Commander
Response: We believe that it is appropriate for DoD to provide the
Geographic Combatant Commanders with the requirements to be included in
their respective guidance and procedures. Situations change
significantly from one geographic region to another. The Geographic
Combatant Commanders (GCC) must have the flexibility to apply the
overarching policy, tailoring their guidance and procedures as
necessary to meet the particular circumstances within their respective
areas of responsibility at any particular time. This is consistent with
the approach that we are currently taking in the CENTCOM Area Of
Responsibility (AOR) without significant issue.
We do not believe that differing or conflicting regulations will be
adopted within a single AOR. The GCC will establish the overarching
guidance and Subordinate Commanders (down to Joint Task Force level)
will develop implementing instructions. Specific requirements will be
made available to Private Security Contractors through the GCC Web
site.
Comment: Absence of Department-Wide Guidance
Response: We believe that a de-centralized approach is the most
appropriate way to implement the requirements of Section 862 of the
FY08 NDAA. There is sufficient uniformity of guidance provided through
policy, including this Rule and existing acquisition regulations. The
intent of the policy is that all PSC personnel operating within the
designated area are required to have the required training, not only
those who are deploying. A FAR case has been opened to incorporate the
required revisions based upon the publication of this Final Rule.
Comment: Lack of Uniformity Across Organizations
Response: Following publication of this Final Rule, these
requirements will be added to the FAR and DFARS and subsequently
incorporated into appropriate contracts. This will provide a basis for
the management of PSC compliance.
Comment: Chief of Mission Should Be Required to Opt Out of DoD PSC
Processes
Response: We believe that the arrangement set out in Section
159.4(c) is appropriate and meets the congressional intent of a
consistent approach towards PSCs operating in combat operations or
other significant military operations, across USG agencies.
Comment: Any Procedures or Guidance Issued Under the Requirements of
This Rule Should be Subject to an Appropriate Rule-Making with an
Adequate Opportunity for Public Comment
Response: The relevant provisions of this Final Rule will be
implemented through military regulations and orders, in accordance with
existing procedures.
Comment: The Rule is Not Integrated with Standard Contracting Processes
Response: The requirements associated with GCC guidance and
procedures will be included in any solicitations and therefore
potential bidders will be aware of GCC specific procedures prior to
submitting their proposals. AOR specific procedures such as training
requirements are required to be placed on GCC Web sites immediately
after a declared contingency so that the requirements can get into the
appropriate contracts as soon as possible.
Comment: The Rule Should Fully Explain How DoD Determines a PSC Law of
War Status
Response: It is not the role of the Rule to make statements
regarding international law. Department Of Defense Instruction 3020.41,
the overarching Defense policy document for this Rule, provides in
paragraph 6.1.1 that:
Under applicable law, contractors may support military
operations as civilians accompanying the force, so long as such
personnel have been designated as such by the force they accompany
and are provided with an appropriate identification card under the
provisions of the 1949 Geneva Convention Relative to the Treatment
of Prisoners of War (GPW) (reference (j)). If captured during armed
conflict, contingency contractor personnel accompanying the force
are entitled to prisoner of war status.
The comments regarding direct participation in hostilities are
unsupportable. There is no agreement within the international community
or among recognized authorities in international humanitarian law
(LOAC) on a universally applicable definition for ``Direct
Participation in Hostilities.''
[[Page 49652]]
(Public address by Dr. Jakob Kellenberger, President, International
Committee of the Red Cross, 11 September 2009.) Again, contracting
regulations are not the place to define terms that are not yet defined
under international law. The Rule specifies that command rules for the
use of force will be consistent with Chairman of the Joint Chiefs of
Staff Instruction 3121.01B. This will provide commonality regarding the
Rules for the Use of Force (RUF) but with the flexibility for commands
to interpret it in accordance with local, and sometimes transitory,
circumstances.
Comment: The Rule may benefit from additional guidance on inter-agency
cooperation
Response: Interagency coordination is essential to successful
contingency planning. The Rule, as written supports flexible, agile,
and focused contingency planning and DoD, DoS and USAID believe the
rule provides sufficient strategic direction for interagency
coordination relative to PSC oversight and conduct. DoD disagrees with
the respondent's assertion that ``many coordination issues will be
common across AORs.'' Some may, many more may not. The flexibility to
adapt procedures to local circumstances is essential. As the same
respondent notes in this same section, ``guidance and procedures in the
Iraq Memorandum of Agreement (MOA) are not easily transferrable to
contingency operations outside of Iraq.'' The MOA between DoD and DoS
in place in Iraq has proven to be extremely successful and serves as a
good example of interagency coordination. It was referenced in the IFR
as an example or point of departure for developing GCC guidance and
procedures. However, to avoid confusion, in the Final Rule we have
removed the last sentence in Section 159.6(d) which references the MOA.
DoD, DoS and USAID recognize that some PSC or PSC personnel activities
may require coordination with other Federal agency partners who
contract for private security services.
Comment: Confusion about Geographic Combatant Commander Delegation
Authority to Subordinate Commander
Response: Geographic combatant commands themselves do not follow a
uniform organizational structure and commanders are free to assign
different responsibilities to the most appropriate components of their
staffs. The language in the Final Rule has been changed to provide more
specificity as to the subordinate level to which GCCs can delegate
responsibility for implementation. Through the Rule, the phrase
``Subordinate Commander'' has been replaced with ``sub unified
commanders or combined/joint task force commanders''.
Comment: The rule needs to include reference to existing powers of
removal of a PSC and personnel
Response: Such language is unnecessary in so far as it is already
addressed in our existing regulations. Section 862(b)(3) of the 2008
NDAA as amended includes the following language: ``NONCOMPLIANCE OF
PERSONNEL WITH CLAUSE--The contracting officer for a covered contract
may direct the contractor, at its own expense, to remove or replace any
personnel performing private security functions in an area of combat
operations or other significant military operations who violate or fail
to comply with applicable requirements of the clause required by this
subsection. If the violation or failure to comply is a gross violation
or failure or is repeated, the contract may be terminated for
default.'' Incorporation of this statutory language will be considered
in the DFARS case implementing Section 862.
Comment: The rule fails to address subcontractors providing security
for the prime contractor
Response: The definition of ``covered contract'' has been revised
in the Rule to cover contracts for the performance of services and/or
the delivery of supplies. Further, we will ensure that regulatory
guidance developed subsequent to the publication of this Rule makes
clear that subcontractors providing security for prime contractors must
comply.
Comment: Recommend application of the rule to PSCs working under
contract to the DoD whether domestically or internationally
Response: As required by Section 862 of the 2008 NDAA, as amended,
this Rule applies to PSCs working for any U.S. Government agency in an
area of combat operations or other significant military operations. It
also applies to PSCs working for DoD in contingency operations outside
the United States. The arrangements for PSC employment in the United
States are outside the scope of this Rule.
Comment: Section 159.4(a) ``Consistent with the requirement of
paragraph (a)(2) * * *'' should include at the end of the section,
``Coordination shall encompass the contemplated use of PSC personnel
during the planning stages of contingency operations so to allow
guidance to be developed under parts (b) and (c) herein and promulgate
under 159.5 in a timely manner that is appropriate for the needs of the
contingency operation''
Response: The language has been revised in the Final Rule.
Comment: Section 159.6(a)(i) ``Contain at a minimum procedures to
implement the following process * * *'' should include, ``That the
Secretary of Defense, in coordination with the Secretary of State,
shall prescribe regulations on the selection, training, equipping, and
conduct of personnel performing private security functions under a
covered contract in an area of combat operations''
Response: We believe that the current wording is correct, as it
reflects our intent.
Comment: Section 159.6(a)(ii) ``PSC verification that PSCs meet all the
legal, training, and qualification requirements * * *'' should include
``That the FAR shall be revised to require the insertion into each
covered contract of a contract clause; addressing the selection,
training, equipping and conduct of personnel performing private
security functions under such a contract''
Response: A FAR clause will be drafted to incorporate all of the
requirements of this Rule.
Comment: Section 159.6(a)(v) ``Reporting alleged criminal activity and
other incidents involving PSCs or PSC personnel by another company or
any other personnel. All incidents shall be reported and documented.''
These reporting requirements are already required
Response: Many of the requirements in this rule are already in
effect in the CENTCOM AOR. With this Rule, we are establishing the
requirements for all Geographic Combatant Commanders and Chiefs of
Mission in order to extend guidance and procedures globally and to the
wider interagency community.
Comment: Questions of the propriety of having PSCs represent the U.S.
in contingency operations relative to the U.S. Constitution and the
Anti Pinkerton Act
Response: The DoD's use of contractors, including private security
[[Page 49653]]
contractors, is entirely consistent with existing U.S. Government
policy on inherently governmental functions. We are guided by four main
documents when determining whether an activity or function is
inherently governmental: DoD Instruction 1100.22 ``Policy and
Procedures for Determining Workforce Mix''; the Federal Acquisition
Regulations (FAR); the Performance of Commercial Activities and the
Federal Activities Inventory Reform Act, or FAIR Act, of 1998; and,
Office of Management and Budget (OMB) Policy Letter 92-1, issued in
1992. The DoD recognizes that there are specific security functions
that are inherently governmental and cannot be contracted. The DoD does
not contract those functions, but there are other security functions
that are appropriate to contract. The DoD, the Government
Accountability Office (GAO), the Office of Management and Budget (OMB),
the Congressional Budget Office (CBO), and the Congressional Research
Service (CRS) have continuously reviewed the use of PSCs, the potential
for their performance of inherently governmental functions, and the
appropriateness and manner in which they are employed.
Comment: Opposition to the use of mercenaries in the U.S. Department of
Defense
Response: The DoD does not use mercenaries. Article 47 of
Additional Protocol I to Geneva Conventions provides an internationally
accepted definition of mercenaries. The elements of that definition
clearly exclude PSCs under contract to DoD. Private security
contractors do not perform military functions, but rather, they carry
out functions similar to those performed by security guards in the
United States and elsewhere. We agree that the behavior of PSCs may
affect the national security goals of the U.S. and for this reason we
have published guidance on the selection, oversight, and management of
private security contractors operating in contingency operations.
Comment: DoD personnel do not want PSCs in a combat situation
Response: The primary role of the armed forces is combat: to close
with and destroy enemy armed forces through firepower, maneuver, and
shock action. Defense of military personnel and activities against
organized attack is a military responsibility. DoD allocates military
personnel to these high priority combat and other critical combat
support missions. Private Security Companies contracted by the U.S.
government protect personnel, facilities and activities against
criminal activity, including individual acts of terrorism. They are
specifically prohibited from engaging in combat (offensive) operations
and certain security functions. DoD PSCs have performed well and are
very important to our mission accomplishment in the CENTCOM area of
responsibility.
Comment: PSCs should receive Veteran's Affairs benefits for injuries
sustained while protecting the country
Response: PSCs and other contractors employed by the U.S.
government who perform work outside of the United States are covered by
the Longshore and Harbor Workers' Compensation Act (LHWCA). The LHWCA
provides disability compensation and medical benefits to employees and
death benefits to eligible survivors of employees of U.S. government
contractors who perform work overseas.
The Defense Base Act is an extension of the LHWCA. The Defense Base
Act covers the following employment activities: (1) Work for private
employers on U.S. military bases or on any lands used by the U.S. for
military purposes outside of the United States, including those in U.S.
Territories and possessions; (2) Work on public work contracts with any
U.S. government agency, including construction and service contracts in
connection with national defense or with war activities outside the
United States; (3) Work on contracts approved and funded by the U.S.
under the Foreign Assistance Act, which among other things provides for
cash sale of military equipment, materials, and services to its allies,
if the contract is performed outside of the United States; or (4) Work
for American employers providing welfare or similar services outside
the United States for the benefit of the Armed Services, e.g. the
United Service Organizations (USO). If any one of the above criteria is
met, all employees engaged in such employment, regardless of
nationality (including U.S. citizens and residents, host country
nationals (local hires), and third country nationals (individuals hired
from another country to work in the host country)), are covered under
the Act.
Comment: Requirements jeopardize NGO security posture
Response: This Rule applies only to personnel performing private
security functions under a covered contract. A covered contract is
defined by Section 864(a)(3) of the FY 2008 NDAA, as amended by Section
813(b) of the FY 2010 NDAA.
Comment: USAID involvement is not evident
Response: USAID has been actively involved in various working
groups implementing the Interim Final Rule and developing the Final
Rule.
Comment: PSC rules should be consistent with the spirit and intent of
Guidelines for Relations between U.S. Armed Forces and Non-Governmental
Humanitarian Agencies in Hostile or Potentially Hostile Environments
Response: The purpose of publishing the IFR in the Federal Register
was to obtain the comments of affected agencies, NGOs, contractors and
the public. The respondent was not specific about any perceived
conflicts that needed to be addressed in the PSC rule, and should work
with their USAID and other agency counterparts to provide specific
inputs on implementing the Final Rule.
Comment: PSC rules should not apply to unarmed guard forces
Response: We believe that the current language is correct. When
contractors providing guard services are not armed, those aspects of
the rule which are specific to armed contractors (i.e. arming
procedures) are not relevant.
Comment: Procedures associated with PSC rules must be adapted to
contexts in which NGOs have long-standing programs or minor amounts of
U.S. Government funding
Response: This Rule applies only to personnel performing private
security functions under a covered contract. A covered contract is
defined by Section 864(a)(3) of the FY 2008 NDAA, as amended by Section
813(b) of the FY 2010 NDAA.
Comment: SPOT's use for intelligence gathering and vetting is unclear
Response: The Synchronized Pre-deployment and Operational Tracker
(SPOT) is a Web-based database which is used to gain visibility over
contracts and contractors supporting U.S. Government agencies during
contingency operations. The SPOT system serves multiple purposes; it
allows contractors to request and receive specific logistics support
such as meals, housing, transportation, medical support while working
in-country; it provides Contracting Officer Representatives and Grants
Officer Representatives with information on what contractor and grantee
employees are working in what locations which makes approval of
invoices and inspection of work easier; it allows Contracting Officer
Representatives,
[[Page 49654]]
Grants Officer Representatives, and other personnel to review the
credentials of individuals requesting the authority to carry weapons
(either government furnished or contractor acquired) in the performance
of a U.S. government contract or grant; it allows agencies to report to
Congress and other oversight organizations on the size of contractor
and grantee presence in areas of combat operations or other significant
military operations. Congress believes the system is necessary. Section
861 of FY 2008 NDAA provides that the Secretary of Defense, the
Secretary of State, and the Administrator of USAID must agree to adopt
a common database for contractors in Iraq and Afghanistan. SPOT is not
used for intelligence gathering or vetting of personnel. Background
checks of PSCs are conducted by the contractor and validated by the
contracting officer. This validation is only annotated in SPOT.
Comment: Applicable guidelines must be effectively disseminated to NGOs
Response: Contracting Officers and Grants Officers will remain the
primary point of contact for contractors and grantees on issues
affecting performance. Rules impacting contractors across multiple
agencies will be promulgated via the FAR with appropriate opportunities
for contractor and public comment during the rulemaking process. Rules
impacting grantees across multiple agencies will be promulgated by the
Office of Management and Budget (OMB) Office of Federal Financial
Management (OFFM) as part of its responsibility to issue government-
wide grants policy. The DoD will ensure that a single location, readily
accessible to both contractors and grantees, exists for the publication
and maintenance of all guidance relating to PSC rules. The Department
of State and USAID will provide any agency unique implementing guidance
to DoD for publication on this same Web site.
Areas for Clarification and Definitions
Comment: ``Private Security Functions'' needs to be better defined
Response: The term ``private security functions'' is defined by
section 864 of the FY 2008 NDAA; the IFR used this definition. The Rule
provides requirements for the management and oversight of companies
contracted to perform private security functions and certain employees
who may be required to carry and use arms in the performance of their
duties. Companies and their personnel contracted to provide training,
maintenance, or other support functions that are not required to carry
a weapon in the performance of their duties are not addressed by this
Rule. For clarification, in the Final Rule we have added ``in
accordance with the terms of their contract''.
Comment: Enforcement and liability pending adoption of FAR clauses
Response: A FAR case has been opened to incorporate the required
revisions based upon the publication of this Rule.
Comment: The Rule should address foreseeable issue concerning host
nation law
Response: The Geographic Combatant Commander has legal and
political staffs capable of addressing the concerns expressed in this
comment.
Comment: Obligations of non-PSC prime contractors
Response: The definition of ``covered contract'' has been reworded
to cover contracts for the performance of services and/or the delivery
of supplies.
Comment: IFR applicability to contingency operations in the U.S. and
distinction between ``combat operations'' and ``contingency
operations''
Response: The Rule does not apply to operations within the United
States. We have clarified this in the definition of ``covered
contract.''
Comment: Applicability to foreign actors
Response: When applicable conditions are met, the Rule covers all
companies and personnel providing private security functions,
regardless of the country of registration of the company or national
origin of its employees. We believe that this is already made clear by
sections 159.2 (b)(1) and (2) which state the policy prescription. The
Rule applies to government entities and prescribes policies for the
oversight and management of PSCs and PSC personnel. The clause in
section 159.2 (2)(a)(2) starting with ``specifically'' describes the
conditions under which this part would apply beyond DoD, to DoS and
other Federal agencies. The acquisition regulations, rather than this
rule, will serve as the implementing mechanisms for PSC companies.
Comment: Further define intelligence operations
Response: This language implements Section 862 (d) of the FY 2008
NDAA.
Comment: ``Active non-lethal countermeasure'' would benefit from a
clear definition and examples
Response: The following clarification has been added to the Rule:
``Active non-lethal systems include laser optical distracters, acoustic
hailing devices, electro-muscular TASER guns, blunt-trauma devices like
rubber balls and sponge grenades, and a variety of riot-control agents
and delivery systems.''
Comment: Definition of Contingency Operation is a slight variation of
the definition of contingency operation in FAR 2.101
Response: The definition in the Rule has been updated; it is taken
verbatim from U.S. Code Title 10, 101(a)(13).
Comment: Definition of Covered Contract excludes temporary arrangements
outside of DoD for private security functions when contracted for by a
non-DoD contractor or a grantee
Response: The genesis for this provision was a USAID concern that
development projects undertaken by USAID may engage local personnel as
security on an ad hoc basis, and that such arrangements should be
excluded from complying with the requirements of this regulation. These
arrangements cannot realistically be regulated in the same manner as
traditional contracts.
Comment: Regarding the Standing rules on the use of force consider
stating: ``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 to the contractor in the solicitation or during the
course of contract administration. Rules for the Use of Force shall
conform to the guidance in the Chairman of the Joint Chiefs of Staff
Instruction 3121.01B, ``Standing Rules of Engagement/Standing Rules for
the Use of Force for U.S. Forces''
Response: Agreed. The Rule has been revised to reflect the proposed
change in wording.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
It has been certified that 32 CFR part 159 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy;
[[Page 49655]]
productivity; competition; jobs; the environment; public health or
safety; or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
these Executive Orders.
Public Law 104-121, ``Congressional Review Act'' (5 U.S.C. 801)
It has been determined that 32 CFR part 159 is not a ``major'' rule
under 5 U.S.C. 801, enacted by Pub. L. 104-121, because it will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 159 does not contain a
Federal mandate that may result in expenditure by State, local and
Tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 159 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. This rule will apply only to a specific sector of
defense industry and a limited number of small entities.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 159 does impose reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
These requirements have been approved by OMB and assigned OMB Control
Numbers 0704-0460, ``Synchronized Predeployment and Operational Tracker
(SPOT) System'' and 0704-0461, ``Qualification to Possess Firearms or
Ammunition.''
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 159 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 159
Contracts, Security measures.
Accordingly, the interim rule amending 32 CFR part 159 which was
published at 74 FR 34691 on July 17, 2009, is adopted as a final rule
with the following change. Part 159 is revised to read as follows:
PART 159--PRIVATE SECURITY CONTRACTORS OPERATING IN CONTINGENCY
OPERATIONS
Sec.
159.1 Purpose.
159.2 Applicability and scope.
159.3 Definitions.
159.4 Policy.
159.5 Responsibilities.
159.6 Procedures.
Authority: Pub. L. 110-181; Pub. L. 110-417.
Sec. 159.1 Purpose.
This part establishes policy, assigns responsibilities and provides
procedures for the regulation of the selection, accountability,
training, equipping, and conduct of personnel performing private
security functions under a covered contract. It also assigns
responsibilities and establishes procedures for incident reporting, use
of and accountability for equipment, rules for the use of force, and a
process for administrative action or the removal, as appropriate, of
PSCs and PSC personnel.
Sec. 159.2 Applicability and scope.
This part:
(a) Applies to:
(1) The Office of the Secretary of Defense, the Military
Departments, the Office of the Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
the DoD Field Activities, and all other organizational entities in the
Department of Defense (hereafter referred to as the ``DoD
Components'').
(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. 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 Secretaries under this
paragraph 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) Prescribes policies applicable to all:
(1) DoD PSCs and PSC personnel performing private security
functions during contingency operations outside the United States.
(2) USG-funded PSCs and PSC personnel performing private security
functions in an area of combat operations or, with the agreement of the
Secretary of State, other significant military operations as designated
by the Secretary of Defense.
Sec. 159.3 Definitions.
Unless otherwise noted, these terms and their definitions are for
the purpose of this part.
Area of combat operations. An area of operations designated as such
by the Secretary of Defense for the purpose of this part, when enhanced
coordination of PSCs working for U.S.G. agencies is required.
Contingency operation. A military operation that is either
designated by the Secretary of Defense as a contingency operation or
becomes a contingency operation as a matter of law (10 U.S.C.
101(a)(13)). It is a military operation that:
(1) Is designated by the Secretary of Defense as an operation in
which members of the Armed Forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active duty
of members of
[[Page 49656]]
the uniformed services under section 688, 12301(a), 12302, 12304,
12305, 12406, of 10 U.S.C., chapter 15 of 10 U.S.C. or any other
provision of law during a war or during a national emergency declared
by the President or Congress.
Contractor. The contractor, subcontractor, grantee, or other party
carrying out the covered contract.
Covered contract. (1) A DoD contract for performance of services
and/or delivery of supplies in an area of contingency operations
outside the United States or a contract of a non-DoD Federal agency 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 a contract; or a task order or delivery order issued under such a
contract or subcontract.
(2) Also includes contracts or subcontracts funded under grants and
sub-grants by a Federal agency for performance in an area of combat
operations or other significant military operations as designated by
the Secretary of Defense.
(3) Excludes temporary arrangements entered into by non-DoD
contractors or grantees for the performance of private security
functions by individual indigenous personnel not affiliated with a
local or expatriate security company. Such arrangements must still be
in compliance with local law.
Other significant military operations. For purposes of this part,
the term `other significant military operations' means activities,
other than combat operations, as part of an overseas contingency
operation that are carried out by United States Armed Forces in an
uncontrolled or unpredictable high-threat environment where personnel
performing security functions may be called upon to use deadly
force.\1\
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\1\ 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 Secretaries may be made only on an area-by-
area basis. With respect to an area of combat operations, the
requirements of this part shall always apply.
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Private security functions. Activities engaged in by a contractor
under a covered contract as follows:
(1) Guarding of personnel, facilities, designated sites, or
property of a Federal agency, the contractor or subcontractor, or a
third party.\2\
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\2\ Contractors performing private security functions are not
authorized to perform inherently governmental functions. In this
regard, they are limited to a defensive response to hostile acts or
demonstrated hostile intent.
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(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, DoDI Instruction 3020.41, ``Contractor
Personnel Authorized to Accompany the U.S. Armed Forces,'' \3\
prescribes policies related to personnel allowed to carry weapons for
self defense.
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\3\ Available at http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf.
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PSC. During contingency operations ``PSC'' means a company employed
by the DoD performing private security functions under a covered
contract. In a designated area of combat operations or other
significant military operations, the term ``PSC'' expands to include
all companies employed by U.S.G. agencies performing private security
functions under a covered contract.
PSC personnel. Any individual performing private security functions
under a covered contract.
Sec. 159.4 Policy.
(a) Consistent with the requirements of paragraph (a)(2) of section
862 of Public Law 110-181, the selection, training, equipping, and
conduct of PSC personnel including the establishment of appropriate
processes shall be coordinated between the DoD and the Department of
State. Coordination shall encompass the contemplated use of PSC
personnel during the planning stages of contingency operations so as to
allow guidance to be developed under paragraphs (b) and (c) of this
section and promulgated under section 159.5 of this part in a timely
manner that is appropriate for the needs of the contingency operation.
(b) Geographic Combatant Commanders will provide tailored PSC
guidance and procedures for the operational environment in their Area
of Responsibility (AOR) in accordance with this part, the Federal
Acquisition Regulation (FAR) \4\ and the Defense Federal Acquisition
Regulation Supplement (DFARS).\5\
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\4\ Published in Title 48 of the Code of Federal Regulations.
\5\ Published in Title 48 of the Code of Federal Regulations.
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(c) In a designated area of combat operations or other significant
military operations, the relevant Chief of Mission will be responsible
for developing and issuing implementing instructions for non-DoD PSCs
and their personnel consistent with the standards set forth by the
geographic Combatant Commander in accordance with paragraph (b) of this
section. The Chief of Mission has the option to instruct non-DoD PSCs
and their personnel to follow the guidance and procedures developed by
the geographic Combatant Commander and/or a sub unified commander or
joint force commander (JFC) where specifically authorized by the
Combatant Commander to do so and notice of that authorization is
provided to non-DoD agencies.
(d) The requirements of this part shall not apply to contracts
entered into by elements of the intelligence community in support of
intelligence activities.
Sec. 159.5 Responsibilities.
(a) The Deputy Assistant Secretary of Defense for Program Support,
under the authority, direction, and control of the Assistant Secretary
of Defense for Logistics and Materiel Readiness, shall monitor the
registering, processing, and accounting of PSC personnel in an area of
contingency operations.
(b) The Director, Defense Procurement and Acquisition Policy, under
the authority, direction, and control of the Under Secretary of Defense
for Acquisition, Technology and Logistics, shall ensure that the DFARS
and (in consultation with the other members of the FAR Council) the FAR
provide appropriate guidance and contract clauses consistent with this
part and paragraph (b) of section 862 of Public Law 110-181.
(c) The Deputy Chief Management Officer of the Department of
Defense shall direct the appropriate component to ensure that
information systems effectively support the accountability and
visibility of contracts, contractors, and specified equipment
associated with private security functions.
(d) The Chairman of the Joint Chiefs of Staff shall ensure that
joint doctrine is consistent with the principles established by DoD
Directive 3020.49, ``Orchestrating, Synchronizing, and Integrating
Program Management of Contingency Acquisition Planning and Its
Operational Execution,'' \6\ DoD Instruction 3020.41, ``Contractor
Personnel Authorized to Accompany the U.S. Armed Forces,'' and this
part.
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\6\ Available from http://www.dtic.mil/whs/directives/corres/pdf/302040p.pdf.
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(e) The geographic Combatant Commanders in whose AOR a contingency
operation is 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,
``Orchestrating, Synchronizing, and Integrating Program Management of
Contingency Acquisition Planning and Its Operational Execution,'' DoD
Instruction 3020.41, ``Contractor
[[Page 49657]]
Personnel Authorized to Accompany the U.S. Armed Forces,'' \7\ 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 geographic combatant command, 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 Chief of Mission in designated areas of combat
operations or other significant military operations.
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\7\ Available at http://www.dtic.mil/whs/directives/corres/html/302041.htm.
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(2) Through the Contracting Officer, ensure that PSC personnel
acknowledge, through their PSC, their understanding and obligation to
comply with the terms and conditions of their 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 to the contractor in the solicitation or during the
course of contract administration. Rules for the Use of Force shall
conform to the guidance in the Chairman of the Joint Chiefs of Staff
Instruction 3121.01B, ``Standing Rules of Engagement/Standing Rules for
the Use of Force for U.S. Forces.'' Access by offerors and contractors
to the rules for the use of force may be controlled in accordance with
the terms of FAR 52.204-2 (Aug 1996), DFARS 252.204-7000 (Dec 1991), or
both.\8\
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\8\ CJCSI 3121.01B provides guidance on the standing rules of
engagement (SROE) and establishes standing rules for the use of
force (SRUF) for DOD operations worldwide. This document is
classified secret. CJCSI 3121.01B is available via Secure Internet
Protocol Router Network at http://js.smil.mil. If the requester is
not an authorized user of the classified network, the requester
should contact Joint Staff J-3 at 703-614-0425.
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(4) Ensure that the procedures, orders, directives and instructions
prescribed in Sec. 159.6(a) of this part are available through a
single location (to include an Internet Web site, 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 of this
part and the guidance and procedures issued by the geographic Combatant
Command,
(2) Ensure private security-related contracts contain the
appropriate clauses in accordance with the applicable FAR clause and
include additional mission-specific requirements as appropriate.
Sec. 159.6 Procedures.
(a) Standing Combatant Command Guidance and Procedures. Each
geographic Combatant Commander shall develop and publish guidance and
procedures for PSCs and PSC personnel operating during a contingency
operation within their AOR, consistent with applicable law; this part;
applicable Military Department publications; and other applicable DoD
issuances to include DoD Directive 3020.49, ``Orchestrating,
Synchronizing, and Integrating Program Management of Contingency
Acquisition Planning and Its Operational Execution,'' DFARS, DoD
Directive 2311.01E, ``DoD Law of War Program,'' \9\ DoD 5200.8-R,
``Physical Security Program,'' \10\ CJCSI 3121.01B, ``Standing Rules of
Engagement/Standing Rules for the Use of Force for U.S. Forces,'' and
DoD Directive 5210.56, ``Use of Deadly Force and the Carrying of
Firearms by DoD Personnel Engaged in Law Enforcement and Security
Duties.'' \11\ The guidance and procedures shall:
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\9\ Available at http://www.dtic.mil/whs/directives/corres/html/231101.htm.
\10\ Available at http://www.dtic.mil/whs/directives/corres/pdf/520008r.pdf.
\11\ Available at http://www.dtic.mil/whs/directives/corres/html/521056.htm.
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(1) Contain, at a minimum, procedures to implement the following
processes, and identify the organization responsible for managing these
processes:
(i) Registering, processing, accounting for and keeping appropriate
records of PSCs and PSC personnel in accordance with DoD Instruction
3020.41, ``Contractor Personnel Authorized to Accompany the U.S. Armed
Forces.''
(ii) PSC verification that PSC personnel meet all the legal,
training, and qualification requirements for authorization to carry a
weapon in accordance with the terms and conditions of their contract
and host country law. Weapons accountability procedures will be
established and approved prior to the weapons authorization.
(iii) Arming of PSC personnel. Requests for permission to arm PSC
personnel shall be reviewed on a case-by-case basis by the appropriate
Staff Judge Advocate to the geographic Combatant Commander (or a
designee) to ensure there is a legal basis for approval. The request
will then be approved or denied by the geographic Combatant Commander
or a specifically identified designee, no lower than the flag officer
level. Requests to arm non-DOD PSC personnel shall be reviewed and
approved in accordance with Sec. 159.4(c) of this part. Requests for
permission to arm all PSC personnel shall include:
(A) A description of where PSC personnel will operate, the
anticipated threat, and what property or personnel such personnel are
intended to protect, if any.
(B) A description of how the movement of PSC personnel will be
coordinated through areas of increased risk or planned or ongoing
military operations, including how PSC personnel will be rapidly
identified by members of the U.S. Armed Forces.
(C) A communication plan, to include a description of how relevant
threat information will be shared between PSC personnel and U.S.
military forces and how appropriate assistance will be provided to PSC
personnel who become engaged in hostile situations. DoD contractors
performing private security functions are only to be used in accordance
with DoD Instruction 1100.22, ``Guidance for Determining Workforce
Mix,'' \12\ that is, they are limited to a defensive response to
hostile acts or demonstrated hostile intent.
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\12\ Available at http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf.
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(D) Documentation of individual training covering weapons
familiarization and qualification, rules for the use of force, limits
on the use of force including whether defense of others is consistent
with host nation Status of Forces Agreements or local law, the
distinction between the rules of engagement applicable to military
forces and the prescribed rules for the use of force that control the
use of weapons by civilians, and the Law of Armed Conflict.
(E) Written acknowledgment by the PSC and its individual PSC
personnel, after investigation of background of PSC personnel by the
contractor, verifying such personnel are not prohibited under U.S. law
to possess firearms.
(F) Written acknowledgment by the PSC and individual PSC personnel
that:
(1) Inappropriate use of force by contractor personnel authorized
to accompany the U.S. Armed Forces may subject such personnel to United
States
[[Page 49658]]
or host nation prosecution and civil liability.\13\
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\13\ This requirement is specific to arming procedures. Such
written acknowledgement should not be construed to limit potential
civil and criminal liability to conduct arising from ``the use of
weapons.'' For example, PSC personnel could be held criminally
liable for any conduct that would constitute a Federal offense (see
MEJA, 18 U.S.C. 3261(a)).
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(2) Proof of authorization to be armed must be carried by each PSC
personnel.
(3) PSC personnel may possess only U.S.G.-issued and/or -approved
weapons and ammunition for which they have been qualified according to
paragraph (a)(1)(iii)(E) of this section.
(4) PSC personnel were briefed about and understand limitations on
the use of force.
(5) Authorization to possess weapons and ammunition may be revoked
for non-compliance with established rules for the use of force.
(6) PSC personnel are prohibited from consuming alcoholic beverages
or being under the influence of alcohol while armed.
(iv) Registration and identification in the Synchronized
Predeployment and Operational Tracker (or its successor database) of
armored vehicles, helicopters, and other vehicles operated by PSC
personnel.
(v) Reporting alleged criminal activity or other incidents
involving PSCs or PSC personnel by another company or any other person.
All incidents involving the following shall be reported and documented:
(A) A weapon is discharged by an individual performing private
security functions;
(B) An individual performing private security functions is killed
or injured in the performance of their duties;
(C) A person other than an individual performing private security
functions is killed or injured as a result of conduct by PSC personnel;
(D) Property is destroyed as a result of conduct by a PSC or PSC
personnel;
(E) An individual performing private security functions has come
under attack including in cases where a weapon is discharged against an
individual performing private security functions or personnel
performing such functions believe a weapon was so discharged; or
(F) Active, non-lethal counter-measures (other than the discharge
of a weapon) are employed by PSC personnel in response to a perceived
immediate threat in an incident that could significantly affect U.S.
objectives with regard to the military mission or international
relations. (Active non-lethal systems include laser optical
distracters, acoustic hailing devices, electro-muscular TASER guns,
blunt-trauma devices like rubber balls and sponge grenades, and a
variety of riot-control agents and delivery systems).
(vi) The independent review and, if practicable, investigation of
incidents reported pursuant to paragraphs (a)(1)(v)(A) through
(a)(1)(v)(F) of this section and incidents of alleged misconduct by PSC
personnel.
(vii) Identification of ultimate criminal jurisdiction and
investigative responsibilities, where conduct of U.S.G.-funded PSCs or
PSC personnel are in question, in accordance with applicable laws to
include a recognition of investigative jurisdiction and coordination
for joint investigations (i.e., other U.S.G. agencies, host nation, or
third country agencies), where the conduct of PSCs and PSC personnel is
in question.
(viii) A mechanism by which a commander of a combatant command may
request an action by which PSC personnel who are non-compliant with
contract requirements are removed from the designated operational area.
(ix) Interagency coordination of administrative penalties or
removal, as appropriate, of non-DoD PSC personnel who fail to comply
with the terms and conditions of their contract, as they relate to this
part.
(x) Implementation of the training requirements contained below in
paragraph (a)(2)(ii) of this section.
(2) Specifically cover:
(i) Matters relating to authorized equipment, force protection,
security, health, safety, and relations and interaction with locals in
accordance with DoD Instruction 3020.41, ``Contractor Personnel
Authorized to Accompany the U.S. Armed Forces.''
(ii) Predeployment training requirements addressing, at a minimum,
the identification of resources and assistance available to PSC
personnel as well as country information and cultural training, and
guidance on working with host country nationals and military personnel.
(iii) Rules for the use of force and graduated force procedures.
(iv) Requirements and procedures for direction, control and the
maintenance of communications with regard to the movement and
coordination of PSCs and PSC personnel, including specifying
interoperability requirements. These include coordinating with the
Chief of Mission, as necessary, private security operations outside
secure bases and U.S. diplomatic properties to include movement control
procedures for all contractors, including PSC personnel.
(b) Availability of Guidance and Procedures. The geographic
Combatant Commander shall ensure the guidance and procedures prescribed
in paragraph (a) of this section are readily available and accessible
by PSCs and their personnel (e.g., on a Web page and/or through
contract terms), consistent with security considerations and
requirements.
(c) Subordinate Guidance and Procedures. A sub unified commander or
JFC, in consultation with the Chief of Mission, will issue guidance and
procedures implementing the standing combatant command publications
specified in paragraph (a) of this section, consistent with the
situation and operating environment.
(d) Consultation and Coordination. The Chief of Mission and the
geographic Combatant Commander/sub unified commander or JFC shall make
every effort to consult and coordinate responses to common threats and
common concerns related to oversight of the conduct of U.S.G.-funded
PSCs and their personnel.
Dated: August 3, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-20239 Filed 8-10-11; 8:45 am]
BILLING CODE 5001-06-P