[Federal Register Volume 84, Number 211 (Thursday, October 31, 2019)]
[Rules and Regulations]
[Pages 58336-58337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23804]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 239 and 252

[Docket DARS-2019-0061]
RIN 0750-AK52


Defense Federal Acquisition Regulation Supplement: Modification 
of DFARS Clause ``Protection Against Compromising Emanations'' (DFARS 
Case 2019-D015)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to update a reference in an 
existing clause.

DATES: Effective October 31, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION: 

I. Background

    This final rule amends the clause at DFARS 252.239-7000, Protection 
Against Compromising Emanations, to update a reference within the 
clause to the current TEMPEST standard. This clause is included in 
solicitations and contracts involving information technology that 
requires protection against compromising emanations. The clause 
requires contractors to provide or use only information technology, as 
specified by the Government, that has been accredited to meet the 
appropriate information assurance requirements of the National Security 
Agency National TEMPEST standards or other standards specified by the 
contract. The clause further identifies NACSEM No. 5100 and NACSEM No. 
5100A as examples of TEMPEST Standards. NSTISSAM TEMPEST 1-92, 
Compromising Emanations Laboratory Test Requirements, Electromagnetics 
(U) is the most current TEMPEST standard and supersedes the NACSEM 
standards identified in the clause. This rule updates the example 
provided in the clause to the current standard.

II. Discussion and Analysis

    The modification of this DFARS text implements a recommendation 
from the DoD Regulatory Reform Task Force. On February 24, 2017, the 
President signed Executive Order (E.O.) 13777, ``Enforcing the 
Regulatory Reform Agenda,'' which established a Federal policy ``to 
alleviate unnecessary regulatory burdens'' on the American people. In 
accordance with E.O. 13777, DoD established a Regulatory Reform Task 
Force to review and validate DoD regulations, including the DFARS. A 
public notice of the establishment of the DFARS Subgroup to the DoD 
Regulatory Reform Task Force, for the purpose of reviewing DFARS 
provisions and clauses, was published in the Federal Register at 82 FR 
35741 on August 1, 2017, and requested public input. No public comments 
were received on this clause. The DoD Task Force reviewed the 
requirements of DFARS clause 252.239-7000, determined that the clause 
should be updated, and recommended its modification in the DFARS.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule only updates a reference in an existing clause. The rule 
does not impose any new requirements on

[[Page 58337]]

contracts at or below the simplified acquisition threshold or for 
commercial items, including commercially available off-the-shelf items.

IV. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is Office of Federal Procurement Policy 
statute (codified at title 41 of the United States Code). Specifically, 
41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, 
procedure or form (including an amendment or modification thereof) must 
be published for public comment if it relates to the expenditure of 
appropriated funds, and has either a significant effect beyond the 
internal operating procedures of the agency issuing the policy, 
regulation, procedure, or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule is 
not required to be published for public comment, because DoD is not 
issuing a new regulation; rather, this rule is merely updating a 
reference in an existing clause.

V. Executive Orders 12866 and 13563

    E.O. 12866 and E.O. 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. This rule is not a major rule under 5 U.S.C. 804.

VI. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section IV. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

VIII. Paperwork Reduction Act

    This rule modifies a clause included in a currently approved 
collection under Office of Management and Budget (OMB) Control Number 
0704-0341, DFARS Part 239, Acquisition of Information Technology, and 
associated clauses at DFARS 252.239-7000. However, this rule does not 
affect the requirements of the currently approved collection or add any 
new collection requirements that necessitate OMB approval under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 239 and 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 239 and 252 are amended as follows:

0
1. The authority citation for parts 239 and 252 continue to read as 
follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 239--ACQUISITION OF INFORMATION TECHNOLOGY

0
2. Amend section 239.7102-2 by revising paragraph (a) to read as 
follows:


239.7102-2   Compromising emanations--TEMPEST or other standard.

* * * * *
    (a) The required protections, i.e., an established National TEMPEST 
standard (e.g., NSTISSAM TEMPEST 1-92) or a standard used by other 
authority;
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 252.239-7000 by--
0
a. Removing the clause date ``(JUN 2004)'' and adding ``(OCT 2019)'' in 
its place; and
0
b. Revising paragraph (a)(1) to read as follows:


252.239-7000   Protection Against Compromising Emanations.

* * * * *
    (a) * * *
    (1) The National Security Agency National TEMPEST Standards 
(NSTISSAM TEMPEST 1-92, Compromising Emanations Laboratory Test 
Requirements, Electromagnetics (U)); or
* * * * *

[FR Doc. 2019-23804 Filed 10-30-19; 8:45 am]
 BILLING CODE 5001-06-P