[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