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:

Proposed rule.

SUMMARY:

The DoD is proposing updates to this part to incorporate changes from the National Defense Authorization Act (NDAA) that were not available when the rule was last published on August 11, 2011. These proposed changes include administrative updates and clarifications to 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:

Comments must be received by July 26, 2021.

ADDRESSES:

You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: DoD cannot receive written comments at this time due to the COVID-19 pandemic. Comments should be sent electronically to the docket listed above.

Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Ms. Donna M. Livingston, 703-692-3032, donna.m.livingston.civ@mail.mil.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Existing Rule

The DoD may contract for private security functions to fulfill non-combat requirements for security in contingency operations, humanitarian or peace operations, and other military operations or exercises. Private security functions include guarding of personnel, facilities, designated sites, or property of a Federal agency, a contractor or subcontractor, or a third party. It is DoD policy that PSCs must be established, registered, well regulated, rigidly disciplined, and properly staffed with carefully selected operating personnel. This policy reflects U.S. law and is implemented through this rule, DoD Directives, DoD Instructions, and acquisition policies and regulations, to include the use of rigorous and verifiable business and operational standards.

B. Summary of Major Provisions of This Regulatory Action

This regulatory action proposes changes to the current rule in order to provide clarification to PSCs supporting DoD in support of contingency operations, humanitarian or peace operations, or other military operations or exercises outside of the U.S. The proposed changes include additional citations for guidance on inherently governmental functions and PSC compliance with DoD approved national and international recognized quality assurance management standards. PSCs must also cooperate with DoD on all government investigations. DoD is responsible for providing the appropriate contract administration oversight of PSCs. Finally, for clarification, this regulatory action proposes to add the definitions on total force and arming authorities to ensure compliance with statutory requirements.

C. Legal Authority for This Program

The proposed updates to this rule are required to meet the mandate of Section 862 of the 2008 NDAA, as amended by Section 813 of the 2010 NDAA and Section 832 of the 2011 NDAA.

II. Regulatory History

The rule was initially published as an interim final rule in the Federal Register (74 FR 34691) on July 17, 2009, because there was insufficient policy and guidance regulating the actions of DoD and other governmental PSCs and their employees' movements in operational areas. The final rule, published in the Federal Register (74 FR 49650) on September 11, 2011, established policy, assigned responsibilities and provided 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 assigned responsibilities and established 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.

The corresponding internal DoD policy is captured 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. For additional information, DoD Instruction 3020.50 can be accessed at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302050p.pdf.

III. Regulatory Analysis

A. Regulatory Planning and Review

a. Executive Orders

Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Accordingly, this rule has been reviewed by the Office of Management and Budget (OMB) under the requirements of these Executive orders. This rule has been designated a “not significant regulatory action,” and determined not to be economically significant, under section 3(f) of Executive Order 12866. It has been determined that 32 CFR part 159 does not 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; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities.

b. Summary

This proposed rule provides clarification and updates for PSCs supporting DoD in contingency operations, humanitarian or peace operations, or other military operations or exercises outside of the U.S. The clarification and updates are derived from statue and regulations requiring PSCs not to perform inherently governmental functions, obtain third party quality assurance standards, and cooperate with DoD on all Government investigations.

c. Affected Population

This proposed rule provides information relevant to commercial sector contractors and their personnel who may provide contracted support to the DoD during applicable operations outside the United States.

Contractor employees—Provides information and describes the requirements DoD imposes on employees of private security companies who may be employed in support of DoD operating in contingency operations, humanitarian or peace operations, or other military operations or exercises.

Companies or organizations—Provides information and describes the requirements for private security companies who may be employed in support of DoD operating in contingency operations, humanitarian or peace operations, or other military operations or exercises.

d. Costs

The proposed updates to the rule will not result in an increased burden to PSCs. PSCs are already implementing these changes based on the current 32 CFR part 159 and contract clauses outlined in Defense Federal Acquisition Regulation Supplement (DFARS) 252.225-7039, “Defense Contractors Performing Private Security Functions Outside the United States.” The changes in the proposed rule are a clarification or update to the current rule.

e. Benefits

The proposed rule will clarify the guidance to the public when considering providing private security contracting support to the DoD while operating in a contingency operation, humanitarian or peace operations, or other military operations or exercises. This updated rule consolidates guidance into one document, which will improve the public planning for providing contract support to DoD. The consolidation will ensure the public is aware of all statutory requirements to compete for and perform private security contracts in support of DoD outside of the U.S.

f. Alternative

DoD has considered the following alternative approaches:

No action. If no action is taken, the public will continue to use the current rule for PSCs supporting DoD outside of the U.S. DoD has improved its oversight of PSCs and Operational Contract Support through lessons learned since the current rule was published. The proposed rule, once accepted, will provide clearer guidance to the public on the contractor and government responsibilities.

Publish proposed rule. This updated rule consolidates guidance into one document which will improve the public planning for providing contract support to DoD. The consolidation will ensure the public is aware of all statutory requirements to compete for and perform private security contracts in support of DoD outside of the U.S.

B. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

The Department of Defense certifies that this proposed 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.

C. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. DoD will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register. This proposed rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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 proposed 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 32 CFR part 159 does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. This collection has been reviewed and approved by the OMB under OMB Control Number 0704-0549 (expires October 31, 2022), “Defense Contractors Performing Private Security Functions Outside the United States.” It included a total cost of $1,080 annually for PSC companies to report to the Geographic Combatant Commander the following incidents if and when they occur:

A weapon is discharged by PSC personnel performing private security functions.

PSC personnel performing private security functions are attacked, killed, or injured.

PSC personnel are killed or injured or property is destroyed as a result of conduct by contractor personnel.

A weapon is discharged against PSC personnel performing private security functions or personnel performing such functions believe a weapon was so discharged.

Active, non-lethal countermeasures (other than the discharge of a weapon) are employed by PSC personnel performing private security functions in response to a perceived immediate threat.

The changes proposed by this regulatory action neither increases nor decreases the public burden associated with this collection of information.

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 proposed rule will not have a substantial effect on State and local governments.

List of Subjects in 32 CFR Part 159

• Government contracts
• Reporting and recordkeeping requirements
• Security measures

Accordingly, 32 CFR part 159 is proposed to be 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:

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.”

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 additions read as follows:

4. Amend § 159.3 by:

a. Adding the definition of “Arming authority” in alphabetical order.

b. Revising the definition of “Contingency operation,” “Covered 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:

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. Adding “(GCCs)” after “Geographic Combatant Commanders.”

ii. Redesignating footnotes 4 and 5 as footnotes 1 and 2.

c. In paragraph (c):

i. Adding “(COM)” after “the relevant Chief of Mission” in the first sentence.

ii. Removing “geographic Combatant Commander” and adding in its place “GCC” in the first sentence.

iii. Removing “Chief of Mission” and adding in its place “COM” in the second sentence.

iv. Removing “geographic Combatant Commander” and adding in its place “GCC” in the second sentence.

6. Revise § 159.5 to read as follows:

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” everywhere it appears and adding in its place “GCC” in the first sentence.

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”.

h. In paragraph (a)(1)(viii), removing “commander of a combatant command may request” and adding in its place “commander of a CCMD 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 (iv) and adding new paragraph (a)(2)(ii).

l. Further redesignating newly redesignated paragraph (a)(2)(iv) 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 “CCMD,” 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 “GCC/sub unified commander,” respectively.

The revisions and additions read as follows: