Proposed Rule2023-08644
Defense Federal Acquisition Regulation Supplement: Transfer and Adoption of Military Animals (DFARS Case 2020-D021)
Primary source
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Published
April 27, 2023
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2020.
Full Text
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<title>Federal Register, Volume 88 Issue 81 (Thursday, April 27, 2023)</title>
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[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Proposed Rules]
[Pages 25606-25609]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08644]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 212, 237, and 252
[Docket DARS-2023-0016]
RIN 0750-AL07
Defense Federal Acquisition Regulation Supplement: Transfer and
Adoption of Military Animals (DFARS Case 2020-D021)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a section of the National
Defense Authorization Act for Fiscal Year 2020.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before June 26, 2023, to be considered in
the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2020-D021, using
any of the following methods:
[cir] Federal eRulemaking Portal: <a href="https://regulations.gov">https://regulations.gov</a>. Search
for ``DFARS Case 2020-D021.'' Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2020-
D021'' on any attached documents.
[cir] Email: <a href="/cdn-cgi/l/email-protection#93fce0f7bdf7f5f2e1e0d3fef2faffbdfefaff"><span class="__cf_email__" data-cfemail="4c233f2862282a2d3e3f0c212d252062212520">[email protected]</span></a>. Include DFARS Case 2020-D021 in
the subject line of the message.
Comments received generally will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. To confirm receipt of your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Kimberly R. Ziegler, telephone 703-
901-3176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend DFARS part 237, Service Contracting, to
implement section 372(f) of the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2020 (Pub. L. 116-92). Section 372(f), as
implemented at 10 U.S.C. 2387 (previously 10 U.S.C. 2410r), requires
DoD contracting officers to include a clause in contracts when contract
working dogs are provided under the contract. 10 U.S.C. 2387 requires
the transfer of a contract working dog, after the service life of the
dog has terminated, to the United States Air Force, 341st Training
Squadron, for--
a. Veterinary screening and care; and
b. Reclassification as a military animal and placement for adoption
in accordance with 10 U.S.C. 2583.
The service life of a contract working dog may be terminated if a
contracting officer determines that--
a. The final contractual obligation of the dog preceding the
transfer is with DoD; and
b. The dog cannot be used by another department or agency of the
Federal Government due to age, injury, or performance.
DoD determines the status of military animals and whether a
military animal is suitable for transfer or adoption under the
statutory direction provided in 10 U.S.C. 2583, Military animals:
transfer and adoption. It also provides the priority for adoptions or
transfer, standards for veterinary care, and transportation of retiring
military working dogs. The 341st Training Squadron is responsible for
the performance of these duties under the DoD Military Working Dog
Program. Section 372 amends 10 U.S.C. 2583; however, those amendments
are outside of the scope of this proposed rule.
II. Discussion and Analysis
The proposed rule creates a new subpart under DFARS part 237,
Service Contracting, to address the requirements in 10 U.S.C. 2387. DoD
generally contracts for contract working dogs as a service performed by
a contracted handler and dog as a unit or team, most often for
security, law enforcement, or other specialized circumstances. These
contract working dogs are under the control of an experienced,
contracted handler at all times and are not paired with an active duty
military member or DoD civilian handler. Based upon the manner in which
DoD contracts for the contract working dogs and the definition of a
contract working dog provided in 10 U.S.C. 2387(c), the new
[[Page 25607]]
direction is implemented in DFARS part 237.
A contract working dog would be transferred to the Government only
when the conditions at 10 U.S.C. 2387(b) are met. In the event that a
requiring activity submits a request based upon both conditions being
met, a contracting officer may determine that the service life of a
contract working dog has terminated. The dog will then be transferred
to the 341st Training Squadron for reclassification as a military
animal and placement for adoption in accordance with 10 U.S.C. 2583.
The proposed rule prescribes a new contract clause at 252.237-70XX,
Transfer and Adoption of Military Animals, for use in solicitations and
contracts for contract working dog services, to include solicitations
and contracts using Federal Acquisition Regulation (FAR) part 12
procedures and for commercial products and commercial services. The new
clause provides notification to offerors and contractors that under
certain circumstances, the contract working dog is required to be
transferred to the 341st Training Squadron for care and
reclassification as a military animal and placement for adoption in
accordance with 10 U.S.C. 2583.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Services and Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
This proposed rule implements 10 U.S.C. 2387 as amended by section
372(f) of the NDAA for FY 2020. The statute requires DoD to add a
contract clause to contracts for the provision of contract working dog
services. As a result, the proposed rule adds one new contract clause
at 252.237-70XX, Transfer and Adoption of Military Animals, for use in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for commercial products and commercial
services, that require the services of a contract working dog.
Accordingly, DoD intends to apply the proposed rule to acquisitions
below the SAT and to the acquisition of commercial services.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to such contracts or subcontracts. 41
U.S.C. 1905 provides that if a provision of law contains criminal or
civil penalties, or if the Federal Acquisition Regulatory Council makes
a determination that it is not in the best interest of the Federal
Government to exempt contracts or subcontracts at or below the SAT, the
law will apply to them. The Principal Director, Defense Pricing and
Contracting (DPC), is the appropriate authority to make comparable
determinations for regulations to be published in the DFARS, which is
part of the Federal Acquisition Regulation system of regulations. DoD
intends to make that determination to apply this proposed rule at or
below the SAT.
B. Applicability to Contracts for the Acquisition of Commercial
Services and Commercial Products, Including COTS Items
10 U.S.C. 3452 (previously 10 U.S.C. 2375) governs the
applicability of laws to DoD contracts and subcontracts for the
acquisition of commercial products, including COTS items, and
commercial services from provisions of law enacted after October 13,
1994, and is intended to limit the applicability of laws to contracts
and subcontracts for the acquisition of commercial services and
commercial products including COTS items. 10 U.S.C. 3452 provides that
if a provision of law contains criminal or civil penalties, or if the
Under Secretary of Defense for Acquisition and Sustainment (USD(A&S))
makes a written determination that it is not in the best interest of
the Federal Government to exempt commercial product and commercial
service contracts, the provision of law will apply to contracts for the
acquisition of commercial products and commercial services. Due to
delegations of authority from USD(A&S), the Principal Director, DPC is
the appropriate authority to make this determination. DoD intends to
make that determination to apply this proposed rule to the acquisition
of commercial services if otherwise applicable.
C. Determination
DoD is proposing to apply the requirements of 10 U.S.C. 2387 to
contracts at or below the SAT, since the requirements of the proposed
clause at 252.237-70XX would apply to contracts that are normally of a
value at or below the SAT and conducted under FAR part 12 procedures.
The new requirements will apply to contracts for the acquisition of
commercial services, because the services provided under these
contracts are considered commercial in nature. The requirements do not
apply to COTS items.
It is not in the best interest of the Federal Government to exempt
application of this proposed rule to actions at or below the SAT or for
commercial services. An exception for contracts below the SAT and those
for commercial services would exclude the majority of the contracts
intended to be covered by the law, thereby undermining the overarching
public policy purpose of the law.
IV. Expected Impact of the Rule
DoD does not expect the proposed rule to have a significant impact
on the public, because the need for a contracting officer to make a
determination that a contract working dog has reached the end of its
service life will be rare. Such acquisitions are few in number, and
service contractors who provide contract working dogs and handlers are
expected to replace dogs and handlers who are unable to perform to DoD
standards. A contracting officer's representative would be responsible
for monitoring contract performance and coordinating any replacement
dog and handler requirements.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the proposed rule will apply to a limited number of service
providers. However, an initial regulatory flexibility analysis has been
performed and is summarized as follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement 10 U.S.C. 2387 (previously
10 U.S.C. 2410r), as amended by section 372(f) of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2020 (Pub.
[[Page 25608]]
L. 116-92). Under 10 U.S.C. 2387, DoD contracting officers are required
to include a clause in contracts for contract working dog services.
The objective of the rule is to implement the statutory
requirements for terminating the service life of a contract working
dog, when certain circumstances apply, and transferring the animal to
the Department of the Air Force, 341st Training Squadron. The legal
basis of the rule is 10 U.S.C. 2387, as amended by section 372(f) of
the NDAA for FY 2020.
This proposed rule will apply to small entities providing contract
working dog and handler services to DoD. The proposed clause is
prescribed for use in solicitations and contracts for such services,
including those conducted under FAR part 12 procedures for the
acquisition of commercial products and commercial services.
Research conducted in the Contract Opportunities section of <a href="http://SAM.gov">SAM.gov</a>
indicates that contract working dog and handler services are generally
procured under North American Industry Classification System codes and
product and service codes that provide for certain physical security
and law enforcement services. Data obtained from the Federal
Procurement Data System (FPDS) for FY 2019, 2020, and 2021 indicate
that DoD awards an average of 227 contract actions annually for these
physical security and law enforcement services, which may include a
requirement for a contract working dog and handler. Of the estimated
227 awards, an average of approximately 72 awards are made annually to
an estimated 52 unique small entities. Neither FPDS nor <a href="http://SAM.gov">SAM.gov</a> provide
data for the number of awards that are specific to the contract working
dog and handler services; however, this analysis assumes all of the
estimated awards and unique small entities may be impacted.
The proposed rule does not impose any new reporting, recordkeeping,
or compliance requirements.
The proposed rule does not duplicate, overlap, or conflict with any
other Federal rules.
There are no practical alternatives that will accomplish the
objectives of the statute.
DoD invites comments from small business concerns 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 the rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2020-D021), in
correspondence.
VII. Paperwork Reduction Act
This proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 212, 237, and 252
Government Procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 237, and 252 are proposed to be
amended as follows:
0
1. The authority citation for parts 212, 237, and 252 continues to read
as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
0
2. Amend section 212.301 by adding paragraph (f)(xiv)(E) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
* * * * *
(f) * * *
(xiv) * * *
(E) Use the clause at 252.237-70XX, Transfer and Adoption of
Military Animals, as prescribed in 237.7X04 to comply with 10 U.S.C.
2387.
PART 237--SERVICE CONTRACTING
0
3. Add subpart 237.7X to read as follows:
SUBPART 237.7X--TRANSFER AND ADOPTION OF MILITARY ANIMALS
237.7X00 Scope of subpart.
237.7X01 Definition.
237.7X02 Policy.
237.7X03 Procedures.
237.7X04 Contract clause.
SUBPART 237.7X--TRANSFER AND ADOPTION OF MILITARY ANIMALS
237.7X00 Scope of subpart.
This subpart implements 10 U.S.C. 2387, which requires, under
certain circumstances, the transfer of a contract working dog to the
Department of Air Force, 341st Training Squadron, for veterinary
screening and care in accordance with 10 U.S.C. 2583.
237.7X01 Definition.
As used in this subpart--
Contract working dog means a dog that--
(1) Performs a service for DoD pursuant to a contract; and
(2) Is trained and kenneled by an entity that provides such a dog
pursuant to such a contract.
237.7X02 Policy.
(a) In accordance with 10 U.S.C. 2387, DoD will transfer a contract
working dog to the Department of the Air Force, 341st Training
Squadron, for veterinary screening and care after the service life of
the dog has terminated.
(b) The service life of a contract working dog may be terminated
if--
(1) The final contractual obligation of the dog preceding transfer
is with DoD; and
(2) The dog cannot be used by another department or agency of the
Federal Government due to age, injury, or performance.
(c) A contract working dog that has reached the end of its service
life will be transferred for care and reclassification as a military
animal and placement for adoption in accordance with 10 U.S.C. 2583.
237.7X03 Procedures.
Contracting officers, at the request of the requiring activity, may
issue a determination that the service life of a contract working dog
has terminated if the conditions in 237.7X02(b) have been documented by
the requiring activity.
237.7X04 Contract clause.
Use the clause at 252.237-70XX, Transfer and Adoption of Military
Animals, in solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial products and commercial services, that require the use of a
contract working dog.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Add section 252.237-70XX to read as follows:
252.237-70XX Transfer and Adoption of Military Animals.
As prescribed in 237.7X04, use the following clause:
Transfer and Adoption of Military Animals (Date)
(a) Definition. As used in this clause--
Contract working dog means a dog that--
(1) Performs a service for DoD pursuant to a contract; and
[[Page 25609]]
(2) Is trained and kenneled by an entity that provides such a
dog pursuant to such a contract.
(b) In accordance with 10 U.S.C. 2387, a contract working dog,
after the service life of the dog has terminated, is required to be
transferred to the Department of the Air Force, 341st Training
Squadron, for veterinary screening and care and for reclassification
as a military animal and placement for adoption in accordance with
10 U.S.C. 2583.
(c) The service life of a contract working dog may be terminated
if the Contracting Officer determines that--
(1) The final contractual obligation of the dog preceding
transfer is with DoD; and
(2) The dog cannot be used by another department or agency of
the Federal Government due to age, injury, or performance.
(d) If the Contracting Officer determines that the service life
of a contract working dog has terminated, the dog will be
transferred to the 341st Training Squadron for care and
reclassification as a military animal and placement for adoption in
accordance with 10 U.S.C. 2583.
(End of clause)
[FR Doc. 2023-08644 Filed 4-26-23; 8:45 am]
BILLING CODE 5001-06-P
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