[Federal Register Volume 77, Number 48 (Monday, March 12, 2012)]
[Proposed Rules]
[Pages 14490-14492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5759]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
RIN 0750-AH57
Defense Federal Acquisition Regulation Supplement: Alleged Crimes
By or Against Contractor Personnel (DFARS Case 2012-D006)
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 expand coverage on contractor
requirements and responsibilities relating to alleged crimes by or
against contractor personnel.
DATES: Comment Date: Comments on the proposed rule should be submitted
in writing to the address shown below on or before May 11, 2012, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2012-D006, using
any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``DFARS Case
2012-D006'' under the heading ``Enter keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``DFARS Case 2012-D006.'' Follow the instructions provided at the
``Submit a Comment'' screen. Please include your name, company name (if
any), and ``DFARS Case 2012-D006'' on your attached document.
Email: [email protected]. Include DFARS Case 2012-D006 in the
subject line of the message.
Fax: 571-372-6094.
Mail: Defense Acquisition Regulations System, Attn: Ms.
Meredith Murphy, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Meredith Murphy, telephone 571-372-
6098.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS clause at 252.225-7040,
Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed
Outside the United States, to expand coverage on contractor
requirements and responsibilities regarding alleged crimes by or
against contractor personnel. The expanded coverage is proposed to
apply to contingency operations, humanitarian or peacekeeping
operations, or other military operations when the latter are designated
by the combatant commander. These requirements currently apply only to
DoD contracts performed in Iraq and Afghanistan. Expanding the coverage
worldwide will provide contractors the guidance they need to take
actions if such alleged offenses occur.
Currently, the clause at 252.225-7040 is prescribed at 225.7402-
5(a). The clause prescription requires insertion of the clause in
solicitations and contracts that authorize contractor personnel to
accompany U.S. Armed Forces deployed outside the United States in (1)
contingency operations; (2) humanitarian or peacekeeping operations; or
(3) other military operations or military exercises, when designated by
the combatant commander. The expanded DFARS clause will require the
contractor to provide information to contractor personnel who perform
work on a contract in those countries about how and where to report an
alleged crime and, for contractor personnel seeking whistleblower
protection, where to seek assistance. The crimes referred to are
alleged offenses under the Uniform Code of Military Justice (10 U.S.C.
47) or the Military Extraterritorial Jurisdiction Act (18 U.S.C. 212).
The clause also provides a list of the appropriate investigative
authorities to which suspected offenses can be reported, e.g., ``U.S.
Army Criminal Investigations Division at http://www.cid.army.mil/reportacrime.html,'' and contact information for contractor personnel
seeking whistleblower protection. This information is required by the
terms of the clause to be provided to contractor personnel before they
begin work on a contract in a deployed area.
II. 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
[[Page 14491]]
(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 a
significant regulatory action and, therefore, was 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.
III. 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 requirement is only to provide information to contractor
personnel regarding the appropriate investigative authorities to which
suspected offenses can be reported and contact information for
contractor personnel seeking whistleblower protection. However, an
initial regulatory flexibility analysis has been performed and is
summarized as follows:
The two key requirements being proposed are for the contractor to
(a) report any alleged offenses against the Uniform Code of Military
Justice (UCMJ) and the Military Extraterritorial Jurisdiction Act
(MEJA) to appropriate investigative authorities and (b) give contractor
personnel who work in covered areas information on how and where to
report an alleged UCMJ or MEJA offense. The clause also would provide
contact information for the three Service Criminal Investigative
Agencies and the DoD Inspector General.
In FY 2010, DoD awarded 788 contracts for performance in Iraq and
1,051 contracts for performance in Afghanistan. Twenty percent of these
contracts were awarded to small businesses. As DoD exits the areas of
current contingency operations, e.g., Iraq and Afghanistan, the total
number of DoD contracts awarded for performance in the subject areas is
expected to decrease by at least 50 percent. However, the proportion of
these contracts that are awarded to small businesses is anticipated to
remain the same. Therefore, this estimate is that there may be as many
as 919 contracts awarded annually and approximately 184 of these
contracts will be awarded to small businesses.
There are no projected reporting, recordkeeping, or other
compliance requirements associated with the proposed rule. The rule
will apply equally to all contractors, large and small, performing in
deployed areas. The rule does not duplicate, overlap, or conflict with
any other Federal rules. The points of contact for reporting criminal
acts and/or seeking whistleblower protection are listed in the clause.
Contractor compliance requirements have been limited to passing this
clear, available information to their personnel. No alternatives to the
rule have been identified that could accomplish the objectives of the
rule or minimize further its economic impact on small entities.
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 this 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 2012-D006), in
correspondence.
IV. Paperwork Reduction Act
The 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 252
Government procurement.
Ynette R. Shelkin
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR part 252 as follows:
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR part 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
2. Section 252.225-7040 is amended by removing the clause date
``(JUN 2011)'' and adding ``(DATE)'' in its place and revising
paragraph (d) to read as follows:
252.225-7040 Contractor Personnel Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States.
* * * * *
(d) Compliance with laws and regulations.
(1) The Contractor shall comply with, and shall ensure that its
personnel authorized to accompany U.S. Armed Forces deployed outside
the United States as specified in paragraph (b)(1) of this clause are
familiar with and comply with, all applicable--
(i) United States, host country, and third country national laws;
(ii) Provisions of the law of war, as well as any other applicable
treaties and international agreements;
(iii) United States regulations, directives, instructions,
policies, and procedures; and
(iv) Orders, directives, and instructions issued by the Combatant
Commander, including those relating to force protection, security,
health, safety, or relations and interaction with local nationals.
(2) The Contractor shall institute and implement an effective
program to prevent violations of the law of war by its employees and
subcontractors, including law of war training in accordance with
paragraph (e)(1)(vii) of this clause.
(3) The Contractor shall ensure that contractor employees
accompanying U.S. Armed Forces are aware--
(i) Of the DoD definition of ``sexual assault'' in DoDD 6495.01,
Sexual Assault Prevention and Response Program;
(ii) That the offenses addressed by the definition are covered
under the Uniform Code of Military Justice (see paragraph (e)(2)(iv) of
this clause); and
(iii) That other sexual misconduct may constitute offenses under
the Uniform Code of Military Justice, Federal law, such as the Military
Extraterritorial Jurisdiction Act, or host nation laws, and that the
offenses not covered by the Uniform Code of Military Justice may
nevertheless have consequences to the contractor employees (see
paragraph (h)(1) of this clause).
(4) The Contractor shall report to the appropriate investigative
authorities, identified in paragraph (d)(6) of this clause, any alleged
offenses under--
(i) The Uniform Code of Military Justice (10 U.S.C. 47) (applicable
to contractors serving with or accompanying an armed force in the field
during a declared war or contingency operation); or
(ii) The Military Extraterritorial Jurisdiction Act (18 U.S.C.
212).
(5) The Contractor shall provide to all contractor personnel who
will perform work on a contract in the deployed area, before beginning
such work, information on the following:
(i) How and where to report an alleged offense described in
paragraph (d)(4) of this clause.
(ii) Where to seek victim and witness protection and assistance
available to
[[Page 14492]]
contractor personnel in connection with an alleged offense described in
paragraph (d)(4) of this clause.
(6) The appropriate investigative authorities to which suspected
crimes shall be reported include the following officials:
(i) U.S. Army Criminal Investigations Division at http://www.cid.army.mil/reportacrime.html.
(ii) Air Force Office of Special Investigations at http://www.osi.andrews.af.mil/library/factsheets/factsheet.asp?id=14522.
(iii) Navy Criminal Investigative Service at http://www.ncis.navy.mil/Pages/publicdefault.aspx.
(iv) Any command of any supported military element or the command
of any base.
(7) Personnel seeking whistleblower protection from reprisals for
reporting criminal acts shall seek guidance through the DoD Inspector
General hotline at 800-424-9098 or www.dodig.mil/HOTLINE/index.html.
Personnel seeking other forms of victim or witness protections should
contact the nearest military law enforcement office.
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[FR Doc. 2012-5759 Filed 3-9-12; 8:45 am]
BILLING CODE 5001-06-P