Proposed Rule2024-14127
Acquisition Regulation and Grants Regulation: Contractor and Grantee Counterterrorism Vetting
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Published
July 1, 2024
Issuing agencies
State Department
Abstract
The Department of State has identified namecheck vetting as a critical tool that can be used, where appropriate, to mitigate the risk that U.S. government activities could inadvertently benefit terrorist groups, their members, or their supporters, and is crafting rules that will address the Department's namecheck vetting process, including setting out the requirements for including vetting provisions in Department of State solicitations and awards for both grants and contracts to allow for namecheck vetting of key individuals of implementing partners and sub-contractors or sub-grantees, beneficiaries of programs, or other identified categories of individuals, when deemed appropriate by the relevant Department official.
Full Text
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<title>Federal Register, Volume 89 Issue 126 (Monday, July 1, 2024)</title>
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[Federal Register Volume 89, Number 126 (Monday, July 1, 2024)]
[Proposed Rules]
[Pages 54369-54372]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14127]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 126 / Monday, July 1, 2024 / Proposed
Rules
[[Page 54369]]
DEPARTMENT OF STATE
2 CFR Part 602
48 CFR Parts 604, 652
[Public Notice: 11513]
RIN 1400-AF09
Acquisition Regulation and Grants Regulation: Contractor and
Grantee Counterterrorism Vetting
AGENCY: Department of State.
ACTION: Advance Notice of Proposed Rulemaking; request for comment.
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SUMMARY: The Department of State has identified namecheck vetting as a
critical tool that can be used, where appropriate, to mitigate the risk
that U.S. government activities could inadvertently benefit terrorist
groups, their members, or their supporters, and is crafting rules that
will address the Department's namecheck vetting process, including
setting out the requirements for including vetting provisions in
Department of State solicitations and awards for both grants and
contracts to allow for namecheck vetting of key individuals of
implementing partners and sub-contractors or sub-grantees,
beneficiaries of programs, or other identified categories of
individuals, when deemed appropriate by the relevant Department
official.
DATES: The Department of State will accept comments until July 31,
2024.
ADDRESSES: Persons with access to the internet may view this rule and
submit comments by going to <a href="http://www.regulations.gov">www.regulations.gov</a> and searching for
docket number DOS-2024-0008.
<bullet> Inspection of public comments: All comments received
before the close of the comment period will be available for public
inspection, including any personally identifiable or confidential
business or financial information that is included in a comment. The
Department of State will post all comments received before the close of
the comment period at <a href="http://www.regulations.gov">www.regulations.gov</a>. For a summary of this
rulemaking, please go to <a href="http://www.regulations.gov/DOS-2024-0008">www.regulations.gov/DOS-2024-0008</a>.
FOR FURTHER INFORMATION CONTACT: Annura Murtadha, Vetting Chief,
<a href="/cdn-cgi/l/email-protection#f1bc84838590959990b0bfb18285908594df969e87"><span class="__cf_email__" data-cfemail="226f57505643464a43636c6251564356470c454d54">[email protected]</span></a>, (202) 663-3871 (Fax).
SUPPLEMENTARY INFORMATION: Because security screening precautions have
slowed the delivery and dependability of surface mail and hand delivery
to the Department of State in Washington, DC, the Department recommends
sending all comments to the Federal eRulemaking Portal. The email
address and fax number listed above are provided in the event that
submission to the Federal eRulemaking Portal is not convenient (all
comments must be in writing to be reviewed). You may submit comments by
electronic mail, avoiding the use of any special characters and any
form of encryption.
The purpose of this ANPRM is to gather data for the Department to
amend 48 CFR chapter 6 and 2 CFR chapter VI, to add new pre-award and
award terms for contracts and grants. The pre-award provisions will
delineate the namecheck vetting process and the applicant's
responsibilities for submitting information on individuals who will be
subject to namecheck vetting, prior to award. The award provisions will
delineate the post-award namecheck vetting process and the recipient's
responsibilities with respect to namecheck vetting during the award
period.
This regulatory action will boost national security by helping the
Department to mitigate the risk that agency funds and other resources
do not inadvertently benefit terrorist groups, their members, or their
supporters.
Background
Authority for vetting is inherent in the Department of State's
(``the Department'' or ``State'') authority to carry out the necessary
administrative steps to implement foreign assistance and other
Department of State programs and activities. The Office of Risk
Analysis and Management (RAM) is the sole organization designated
within the Department to conduct counterterrorism name-check vetting.
In addition, section 7034(e) of the Department of State, Foreign
Operations, and Related Programs Appropriations Act, 2024 (Div. F, Pub.
L. 118-47) and similar provisions in prior year acts specifically
contemplates the implementation of counterterrorism name-check vetting
(described in the provision as ``partner vetting'') and establishes
requirements for the expansion of the vetting program, which the
Department addresses as appropriate.\1\ Section 7034(e) also provides
that the Secretary may restrict the award of, terminate, or cancel
contracts, grants, or cooperative agreements or require an awardee to
restrict the award of, terminate, or cancel a sub-award based on
information in connection with a partner vetting program. With respect
to foreign assistance programs, section 635(a) of the Foreign
Assistance Act of 1961 (FAA) provides that assistance may be provided
on such terms as may be determined to be best suited to the achievement
of the purposes of the FAA.
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\1\ ``(e) Partner Vetting.--Prior to initiating a partner
vetting program, providing a direct vetting option, or making a
significant change to the scope of an existing partner vetting
program, the Secretary of State and USAID Administrator, as
appropriate, shall consult with the Committees on Appropriations:
Provided, That the Secretary and the Administrator shall provide a
direct vetting option for prime awardees in any partner vetting
program initiated or significantly modified after the date of
enactment of this Act, unless the Secretary Administrator, as
applicable, informs the Committees on Appropriations on a case-by-
case basis that a direct vetting option is not feasible for such
program. Provided further, That the Secretary and the Administrator
may restrict the award of, terminate, or cancel contracts, grants,
or cooperative agreements or require an awardee to restrict the
award of, terminate, or cancel a sub-award based on information in
connection with a partner vetting program.''
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Consistent with U.S. law and Department policy, the Department
makes every reasonable effort to guard against the risk that U.S.
government activities could inadvertently benefit terrorist groups,
their members, or supporters. Prior to furnishing assistance or
providing funding, the Department first assesses the risk that funds,
goods, services, or other resources to be provided could inadvertently
benefit terrorist groups, their members, or their supporters, including
people or organizations who are not formally designated as terrorists
by the U.S. government but who may nevertheless be linked to terrorist
activities.
Where such risk is identified by a State Department Program Office,
one way to mitigate it is through name-check vetting.
[[Page 54370]]
The Department of State has been conducting name-check vetting for
programs in certain select countries since 2012. Through a five-year
joint pilot with the U.S. Agency for International Development (USAID)
that concluded in 2017, 688 contracts and grants were subject to name-
checking vetting, with 1,593 key individuals from 410 organizations
being vetted. The Department of State's RAM vetting program is designed
to gather information about key individuals employed at organizations
seeking U.S. funding, as well as subcontractors or subgrantees,
beneficiaries of programs, or other identified categories of
individuals that receive some benefit from an award. That information
is then vetted against public sources of information and information
contained in non-public relevant U.S. government databases for ties to
terrorist groups, their members, or their supporters.
The Joint State-USAID Pilot Program
The Department conducted a joint pilot program with the USAID
starting in 2012. The joint State-USAID pilot was initially authorized
under section 7034(o) of the Department of State, Foreign Operations,
and Related Programs Appropriations Act, 2010 (Div. F, Pub. L. 111-
117), and required consultations between the Department and USAID and
the Committees on Appropriations prior to implementation.
The joint State-USAID pilot program included both agencies'
programming in five countries--Guatemala, Ukraine, Lebanon, Kenya, and
the Philippines. It was later expanded to include Afghanistan. These
countries were chosen to reflect geographic diversity and a range of
terrorist threat levels in contexts where comparable programs were
being implemented by both agencies. During the pilot's early
implementation, the Department and USAID received individuals' personal
information through OMB-approved forms made available to the public via
an online portal. The relevant individuals were vetted, and derogatory
information identified was provided to the program office. The program
office would then decide on whether to proceed in light of that
information.
Throughout the joint pilot, the Department and USAID also sought
feedback from nongovernmental stakeholders. Some key areas of concern
noted during consultations included standardization of vetting
procedures, data privacy, and exemptions. To reduce concerns about
effort duplication, State and USAID created a steering group to
coordinate and standardize processes and data collection. In addition,
to reduce the burden placed on implementers, both agencies instituted
online portals for submitting individuals' information, rather than
using paper forms.
These online portals provided a secure platform and more
streamlined means of submitting information and included instructions
in multiple languages. Further, the agencies exercised best practices
to protect submitted personal information throughout the joint pilot to
ensure participants' privacy and minimize risk to those operating in
more repressive contexts. Access to information submitted to the
Department was limited within the Department to only those with a
``need-to-know,'' such as the analysts charged with conducting the
vetting. Records were retained and disposed according to a standardized
records schedule consistent with National Archives and Records
Administration guidance.
The Department also implemented structures to ensure those without
required documentation can still participate in programming after their
case is reviewed on an ad hoc basis.
A report was provided to Congress in 2017 at the conclusion of the
pilot, consistent with section 7034(e)(1) of the Department of State,
Foreign Operations, and Related Program Appropriations Act, 2017 (Div.
J, Pub. L. 115-31).
Following completion of the pilot program, the Department of
State's name-check vetting program has continued to operate consistent
with U.S. government and Department guidance, including the
Department's Foreign Affairs Manual (FAM).\2\ The vetting program
continues to be managed by the Office of Risk Analysis and Management
(RAM) within the Department and continues to adapt to address feedback
received, evolving needs of implementers, and dynamic global security
challenges.
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\2\ 14 FAM 247.
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After the Department completed the joint pilot program with USAID,
the number of countries under the RAM vetting program increased due to
evolving circumstances in countries where Department programs are
implemented. Programs in eight countries are currently subject to
counterterrorism name-check vetting based on program offices'
assessments of the risk that program resources will inadvertently
provide a benefit to terrorist groups, their members, or their
supporters. Additional countries could be added if the implementing
program office, through its risk assessment process, assesses it is
necessary to mitigate risk of foreign assistance or Department programs
or activities inadvertently benefitting terrorist organizations or
their supporters, subject to consultation with the Appropriations
Committees, consistent with requirements in the annual appropriations
acts for any significant expansion of the RAM vetting program. With
respect to programs within each of these countries, the Department
conducts a program-specific analysis and determines whether vetting is
the appropriate risk-mitigation method for a particular award.
Government-to-government assistance, and contributions to Public
International Organizations, nonproliferation programs, other U.S.
Government agencies, or the National Endowment for Democracy are not
subject to vetting under this program.
Pre-Award Vetting and Source Selection
The Department applies name-check vetting to acquisitions and
foreign assistance in countries, as needed, where the risk has been
determined to necessitate the practice.
Offerors (potential recipients of contract or grant funds) applying
or competing for State Department funding are made aware of the
security screening requirement prior to application; when an
acquisition, grant, contract, or cooperative agreement is subject to
name-check vetting, a provision in the solicitation will notify
offerors of the vetting requirements and procedures.
Vetting for contracts and grants is conducted prior to award, often
when the Department establishes the competitive range (see 48 CFR
15.306(c)).\3\ For indefinite contracts--those that provide an
indefinite quantity of supplies or services during a fixed period--
vetting will take place before the basic contract is awarded, in
anticipation of potential orders. For all other contracts, including
those that qualify as simplified acquisitions or sealed bids, the
Contracting Officer determines the appropriate timing to require
offerors to submit individuals for vetting.
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\3\ Competitive Range refers to those offerors whose proposals
meet a minimum threshold and have a reasonable chance of being
selected for award.
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When the Department decides to move forward with vetting an
offeror, the offeror will be instructed to submit the completed Risk
Assessment Information Form, DS-4184 (all DS-4184 form submissions are
made through the internet-based RAM Portal). The information collection
tool (DS-4184) identifies the biographic
[[Page 54371]]
information required for the key individuals of the offeror, required
subcontractors, and, if applicable, beneficiaries. (Note--no biometric
information, such as fingerprints, are collected.) Offerors are
informed that key individuals include principal officers of the
organization's governing body (e.g., chairman, vice chairman, treasurer
and secretary of the board of directors or board of trustees), the
principal officer and deputy principal officer of the organization
(e.g., executive director, deputy director, president, vice president),
or the program manager for the U.S. government-financed program, and
any other person with significant responsibilities for administration
of the U.S. government-financed activities or resources.
U.S. persons' (U.S. citizens and lawful permanent residents)
information submitted through the RAM Portal is subject to the Privacy
Act of 1974, as well as other authorities and guidance pertaining to
information security, disclosure, and disposition. While non-U.S.
persons' information is not protected under the Privacy Act, the
Department aims to provide robust privacy protections for individuals
regardless of the citizenship status of the record holder. The
Department takes the responsibility to protect personal information
seriously, particularly in contexts where there is increased risk for
participants. The Portal that the Form is submitted through is housed
within Department of State servers and access is strictly controlled.
The vetting office's systems are also subject to auditing under the
Federal Information Security Modernization Act (FISMA), which requires
specific infrastructure for the provision of information security.
Once all information is submitted through the RAM Portal, the
vetting official \4\ uses multiple commercial and investigative
databases, public search engines, and both unclassified and classified
systems operated by the Department and other U.S. government agencies
to complete the name-check vetting. The RAM vetting official is also
responsible for responding to questions from offerors about information
to be included on the Form.
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\4\ Namecheck vetting officials are U.S. citizen employees of
the Department in the RAM office not involved in the source
selection process and operate under agency guidance at 14 FAM 247.
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Upon completion of the vetting, the RAM vetting official conveys
the vetting results of each vetted offeror to the relevant Department
program office. The RAM vetting office will only identify and provide
to the program office derogatory information with a potential nexus to
terrorism activities or violations of United States policy (i.e. human
rights violations or sanctioned individuals/entities); other
potentially unfavorable information (e.g., disorderly conduct, speeding
tickets, or a criminal conviction for operating a motor vehicle while
intoxicated) would not be provided to the program office. A name-match
alone would not typically be considered sufficient evidence that a key
individual has derogatory information. The program office makes the
ultimate decision regarding whether to move forward with an offeror,
and vetting is only one factor among many that go into making this
decision.
The Department's counterterrorism vetting program was designed to
avoid adding a significant amount of time to the contracting and grant
process. The process was also designed to avoid delays in an award, and
the typical vetting case takes, on average, fewer than 14 days. Source
selection proceeds separately from vetting, meaning that the name-check
process for vetting occurs concurrently to other review processes.
Generally, the Department finds there is no back-and-forth between the
offeror and the RAM vetting office after the offeror completes and
submits the DS-4184 except in limited circumstances when the RAM
vetting office must re-contact the offeror to request missing
information. In circumstances when derogatory information is identified
and the program office informs the offeror that they are ineligible for
the award, the offeror is entitled to request a redetermination of the
decision and to provide additional documentation or explanation that
may be used to make a revised determination. However, due to the
sensitive nature of much derogatory information, the Department does
not generally share such information with offerors if vetting is the
cause of the Department's decision to not move forward with an offeror.
During the 5-year period of the pilot program, 4.6% of offerors had
key individuals found to have derogatory information, and 2.98% were
ultimately deemed to be ineligible to participate in the award.
Offerors who change any key individuals for any reason must submit
their revised DS-4184 through the RAM Portal as soon as possible to
allow for vetting of individuals not previously vetted. Name-check
vetting may also be required for subcontractors and subgrantees. In
most circumstances, only those subcontracts and subgrants for which
consent is required in accordance with FAR clause 52.244-2 will be
subject to name-check vetting. The contracting officer will not consent
to a subcontract or subgrant until the subcontractor and subgrantee's
key individuals have completed vetting. When the Department considers
it appropriate, additional subcontracts for certain classes of items
(supplies and services) that are considered higher risk may also be
subject to vetting, even if Contracting Officer consent is not
required. These classes of items will be identified in the
solicitation, and the offeror will be responsible for ensuring that
subcontracts at any tier are vetted through the RAM process before
placing the subcontracts. In practice, this typically requires the
prime contractor to include all known subcontractors when responding to
the Department's solicitations. During this pre-award stage, offerors
may either collect the necessary key individual information from
subcontractors and subgrantees and directly submit it through the RAM
Portal, or the subcontractors and subgrantees may submit it directly
through the RAM Portal.
Post-Award Vetting
Per 14 FAM 247, all grantees and contractors (including subgrantees
and subcontractors) subject to initial vetting must resubmit
individuals for vetting annually or when they replace key individuals
with individuals who have not been previously vetted for that contract
or grant. Previously vetted offerors and their key individuals are also
subject to vetting when responding to solicitations for new grants or
contracts for which the Department deems vetting an appropriate risk
mitigation measure.. However, because vetting is valid for one year,
individuals submitted on multiple awards within a given year will only
be vetted one time if the same personal information is submitted.
Additionally, when vetting is determined to be appropriate for a given
award as identified in the initial solicitation, the Department can
require vetting at any time post-award at the Department's discretion,
including for the final beneficiaries of the award.
Questions for the Public
The Department of State welcomes public comment on the discussion
of existing RAM vetting processes as described above, but the
Department would particularly benefit from commenters addressing one or
more of the following questions with detailed explanations of the
reasoning, data, or experiences informing their perspective.
[[Page 54372]]
Costs Associated With Name-Check Vetting
Under OMB Control NO. 1405-0204, the Department of State has
historically estimated that it takes, on average, 90 minutes for a
respondent (i.e., an offeror) to fully complete the DS-4184 and to
submit it through the RAM Portal. The Department estimates the average
offeror submits information on five key individuals (and notes that
this has ranged between one and 50 individuals), and the 90 minute
estimate is inclusive of all the time it takes to learn the relevant
instructions and information requirements, gather all necessary
information and documentation from key individuals (including
subcontractors and subgrantees), and compile that information into the
RAM Portal and submit it to the Department.
1. Is our time estimate accurate for your organization? If not,
please provide us an estimate of the time that your organization
expends submitting a completed DS-4184 through the RAM Portal. This
estimate may include some or all of the following factors, and
commenters are encouraged to provide a specific breakdown of each
element of the time commitment:
I. The time spent learning the requirements for RAM Vetting,
including reading relevant instructions, understanding which
individuals qualify as reportable key individuals, and learning how to
navigate the RAM Portal.
II. The time spent explaining vetting requirements to all key
individuals.
III. The time each key individual of your organization, as well as
subcontractors and subgrantees, or final beneficiaries expends
gathering the necessary information and documentation to be responsive
to the information collected on the DS-4184.
IV. Any travel time directly associated with developing the
information necessary to be responsive to the DS-4184.
2. Are there additional time or financial costs that are routinely
incurred while responding to or submitting the DS-4184 that we have not
previously captured?
3. On average, how many individuals does your organization include
per submission for vetting? Please consider submissions of key
individuals, subcontractors and subgrantees, and final beneficiaries
who are required to submit vetting information in your estimate.
4. Have vetting requirements resulted in prospective grantee or
contractor organizations choosing to not participate or drop out of the
application process because of:
I. Concerns regarding the cost, capacity, or ability to develop or
gather the necessary identity documentation or biographic information
about their key individuals or other vetted parties?
II. Other reasons associated with difficulty or inability to comply
with vetting requirements? Please provide those reasons.
5. What financial costs, if any, has your organization incurred
associated with maintaining appropriate information technology or
physical filing systems for protecting the biographic information that
must be collected prior to completing the DS-4184?
Current RAM Vetting Procedures
As described in the background section, the entire RAM vetting
process takes, on average, fewer than 14 days, typically does not
require significant back-and-forth between the offeror and the
Department of State, and occurs concurrently to other review processes
the program office is conducting.
1. In your organization's experience or in your understanding of
other organizations' experiences:
I. How frequently does RAM vetting require contacting the
Department of State prior to submission of the DS-4184 in the RAM
Portal to seek clarification regarding information that needs to be
submitted or other challenges with navigating the RAM portal?
II. How frequently does RAM vetting involve the Department
following-up with your organization after initial submission to request
additional information or documentation? How much additional time is
typically involved in responding to and submitting any follow-up
requests for additional information?
III. Has your organization ever requested reconsideration of an
initial determination of ineligibility? Was your organization able to
provide the necessary explanation or additional documentation to
successfully revise the Department's original determination of
ineligibility?
2. How might the Department structure the reconsideration or
appeals process to provide offerors adequate opportunity to rebut an
initial determination of ineligibility due to derogatory information?
What type of feedback from the Department would help allow the offeror
to provide more effective documentation or explanation when requesting
a reconsideration?
Seth E. Green,
Deputy Assistant Secretary, Logistics Management, U.S. Department of
State.
[FR Doc. 2024-14127 Filed 6-28-24; 8:45 am]
BILLING CODE 4710-24-P
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