[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13547-13548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04363]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
[DFARS Case 2012-D006]
RIN 0750-AH57
Defense Federal Acquisition Regulation Supplement: Alleged Crimes
By or Against Contractor Personnel
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 and
expand coverage on contractor requirements and responsibilities
relating to alleged crimes by or against contractor personnel.
DATES: Effective February 28, 2013.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, telephone 571-
372-6098.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 77 FR
14490 on March 12, 2012, to revise paragraph (d) of the clause at DFARS
252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States, to require contractors to
provide information to their employees on how and where to report
alleged crimes and where to seek assistance or whistleblower
protection. These requirements apply to all DoD contracts that
authorize contractor personnel to accompany U.S. Armed Forces deployed
outside the United States in contingency operations, humanitarian or
peacekeeping operations, or other military operations when the latter
are designated by the combatant commander. Section 854 of the NDAA for
FY 2009 (Pub. L. 110-417) applied this requirement just to contracts
performed in Iraq and Afghanistan. Four respondents submitted public
comments in response to the proposed rule.
II. Discussion and Analysis of the Public Comments
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments and the changes made to the rule as
a result of those comments is provided, as follows:
A. Summary of Changes From the Proposed Rule
The Defense Criminal Investigative Service was added to the list at
paragraph (d)(6) of the clause, and the title for the U.S. Army
Criminal Investigation Command was corrected. In addition, the
explanation of the impact of the changes was clarified in Section I,
Background, of this notice.
B. Analysis of Public Comments
1. Add the Defense Criminal Investigative Service to the List of
Appropriate Investigative Agencies
Comment: One respondent requested the addition of the Defense
Criminal Investigative Service (DCIS) to the list of appropriate
criminal investigative agencies to which suspected crimes should be
reported. DCIS is the criminal investigative arm of the DoD Office of
the Inspector General, and it also investigates alleged crimes
involving contractor personnel.
Response: The requested change has been made.
2. Update the Information on the U.S. Army Criminal Investigation
Command
Comment: One respondent stated that the U.S. Army's criminal
investigative unit was established as a major command on September 17,
1971, and renamed the ``U.S. Army Criminal Investigation Command.''
Response: The requested change has been made.
3. Clarify the Impact of the Change on Applicability of These
Requirements
Comment: A respondent stated that the explanation of the proposed
change and its impact in the proposed rule (77 FR 14490) were not clear
and implied that the applicability of the clause at DFARS 252.225-7040
was proposed for revision, without, however, actually amending the
clause prescription.
Response: The ``Background'' section of the proposed rule could
have been interpreted more than one way. However, the preamble to this
final rule makes clear that there is no change to the applicability of
DFARS clause 252.225-7040.
4. Consider Imposing a Range of Penalties in the Event of Noncompliance
Comment: A respondent expressed support for ``these relatively
modest requirements on contractors.'' In addition, the respondent
suggested that, to strengthen accountability, DoD should consider
imposing a range of penalties in the event of noncompliance, ``much
like non-compliance with the trafficking in persons provision in the
Federal Acquisition Regulation (FAR) subjects contractors to the
following remedies:
(1) Requiring the contractor to remove a contractor employee or
employees from the performance of the contract;
(2) Requiring the contractor to terminate a subcontract;
(3) Suspension of contract payments;
(4) Loss of award fee, consistent with the award fee plan, for the
performance period in which the government determined contractor non-
compliance;
(5) Termination of the contract for default or cause, in accordance
with the termination clause of this contract; or
(6) Suspension or debarment.''
The respondent cited FAR 52.222-50(e) as the source for the above list.
Response: Most or all of the remedies that are cited by the
respondent are already available to the Government in the event of
noncompliance by a contractor with the requirements of a clause that is
included in its contract. It is not necessary to cite them in each
individual contract clause to which they may be applied.
III. 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
[[Page 13548]]
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. The Office of
Information and Regulatory Affairs has determined that 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.
IV. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
and is summarized as follows:
DoD is expanding coverage on contractor requirements and
responsibilities relating to alleged crimes by or against contractor
personnel. These requirements will be included in any contract that
authorizes 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. DoD is accomplishing this change by modifying the clause at
DFARS 252.225-7040, Contractor Personnel Authorized to Accompany U.S.
Armed Forces Deployed Outside the United States.
The two key requirements are for the contractor to (a) report any
alleged offenses against the Uniform Code of Military Justice and the
Military Extraterritorial Jurisdiction Act to appropriate investigative
authorities and (b) give contractor personnel who work in covered areas
information on how and where to report an alleged Uniform Code of
Military Justice or Military Extraterritorial Jurisdiction Act offense.
The clause also provides contact information for the four criminal
investigative agencies in the DoD.
No significant issues were raised in the public comments received
in response to the proposed rule. No comments were filed by the Chief
Counsel for Advocacy of the Small Business Administration.
The rule will apply equally to all contractors, large and small,
performing in deployed areas. Approximately 184 small businesses may be
impacted by these changes annually. However, there are no projected
reporting, recordkeeping, or other compliance requirements associated
with the proposed rule. The points of contact for reporting alleged
crimes 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. Because the
burdens associated with these requirements have already been minimized,
there are no significant alternatives that could further minimize the
already minimal impact on businesses, small or large.
V. 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.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, DoD amends 48 CFR part 252 as follows:
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for part 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
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2. Section 252.225-7040 is amended by--
0
a. Removing the clause date ``(JUN 2011)'' and adding ``(FEB 2013) in
its place;
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b. Revising paragraph (d)(3)(ii); and
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c. Adding paragraphs (d)(4) through (7).
The revision and addition read as follows:
252.225-7040 Contractor Personnel Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States.
* * * * *
(d) * * *
(3) * * *
(ii) That many of the offenses addressed by the definition are
covered under the Uniform Code of Military Justice (see paragraph
(e)(2)(iv) of this clause). 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;
(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 (chapter 47 of title 10,
United States Code) (applicable to contractors serving with or
accompanying an armed force in the field during a declared war or
contingency operations); or
(ii) The Military Extraterritorial Jurisdiction Act (chapter 212 of
title 18, United States Code).
(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 crime described in paragraph
(d)(4) of this clause.
(ii) Where to seek victim and witness protection and assistance
available to 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--
(i) US Army Criminal Investigation Command 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) Defense Criminal Investigative Service at http://www.dodig.mil/HOTLINE/index.html;
(v) To 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.
* * * * *
[FR Doc. 2013-04363 Filed 2-27-13; 8:45 am]
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