[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 [www.gpo.gov]
[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: https://regulations.gov. 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: [email protected]. Include DFARS Case 2020-D021 in 
the subject line of the message.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, 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 SAM.gov 
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 SAM.gov 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