[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Rules and Regulations]
[Pages 35684-35685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15126]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 209 and 252
Defense Federal Acquisition Regulation Supplement; Ownership or
Control by a Foreign Government (DFARS Case 2010-D010)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing an interim rule to implement revisions to DoD
Directive-Type Memorandum (DTM) 09-019, ``Policy Guidance for Foreign
Ownership, Control, or Influence (FOCI).'' The DTM revises the
description of communications security material that is ``proscribed
information.''
DATES: Effective date: June 23, 2010.
Comment date: August 23, 2010.
ADDRESSES: You may submit comments, identified by DFARS Case 2010-D010,
using any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: [email protected]. Include DFARS Case 2010-D010 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Mr.
Julian E. Thrash, 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.
FOR FURTHER INFORMATION CONTACT: Mr. Julian E. Thrash, 703-602-0310.
Please cite DFARS Case 2010-D010.
SUPPLEMENTARY INFORMATION:
A. Background
DoD has revised Directive-Type Memorandum (DTM) 09-019, ``Policy
Guidance for Foreign Ownership, Control, or Influence (FOCI),'' which
requires conforming changes to the DFARS. This rule revises DFARS
209.104-1, General standards, to reflect that the responsible office is
the Undersecretary of Defense for Intelligence. Additionally,
subparagraph (a)(4) of DFARS 252.209-7002, Disclosure of Ownership or
Control by a Foreign Government, is revised to reflect changes required
by the DTM to the definition of ``proscribed information.'' The DTM
revises the description of communication security material that is
``proscribed information.''
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993. This rule is not
a major rule under 5 U.S.C. 604.
B. Regulatory Flexibility Act
DoD does not expect this interim rule to have a significant
economic impact on a substantial number of entities within the meaning
of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it
only impacts companies that are owned or controlled by a foreign
government, and most small entities, as defined in the Regulatory
Flexibility Act, are not owned or controlled by a foreign government.
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 2010-D010) in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD) that urgent and compelling reasons exist to promulgate
this interim rule without prior opportunity for public comments
pursuant to 41 U.S.C. 418b and FAR 1.501-3(b). DoD Directive-Type
Memorandum (DTM) 09-019, ``Policy Guidance for Foreign Ownership,
Control, or Influence (FOCI),'' effective June 8, 2010, implements
changes to the definition of ``proscribed information.'' In reviewing
the DTM, it became apparent that the current wording at DFARS 252.209-
7002 is potentially misleading. If the DFARS is not changed to be
consistent with the revised DTM, contracting officers and contractors
will be misinformed as to the meaning of ``proscribed information.''
DoD will consider public comments received in response to this interim
rule in the formation of the final rule.
[[Page 35685]]
List of Subjects in 48 CFR Parts 209 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 209 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 209 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 209-CONTRACTOR QUALIFICATIONS
0
2. Section 209.104-1 is amended by revising paragraph (g)(ii)(B) and
the introductory text of paragraph (g)(ii)(C) to read as follows:
209.104-1 General standards.
* * * * *
(g) * * *
(ii) * * *
(B) Whenever the contracting officer has a question about
application of the provision at 252.209-7002, the contracting officer
may seek advice from the Security Directorate, Office of the Deputy
Under Secretary of Defense, Human Intelligence, Counterintelligence,
and Security.
(C) In accordance with 10 U.S.C. 2536(b)(1)(A), the Secretary of
Defense may waive the prohibition in paragraph (g)(ii)(A) of this
subsection upon determining that the waiver is essential to the
national security interests of the United States. The Secretary has
delegated authority to grant this waiver to the Undersecretary of
Defense for Intelligence. Waiver requests, prepared by the requiring
activity in coordination with the contracting officer, shall be
processed through the Director of Defense Procurement and Acquisition
Policy, Office of the Under Secretary of Defense (Acquisition,
Technology, and Logistics), and shall include a proposed national
interest determination. The proposed national interest determination,
prepared by the requiring activity in coordination with the contracting
officer, shall include:
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Section 252.209-7002 is amended by revising the clause date and
paragraph (a)(4)(ii) to read as follows:
252.209-7002 Disclosure of ownership or control by a foreign
government.
* * * * *
DISCLOSURE OF OWNERSHIP OR CONTROL BY A FOREIGN GOVERNMENT (JUN
2010)(a) * * *
(4)* * *
(ii) Communications security (COMSEC) material, excluding
controlled cryptographic items when unkeyed or utilized with
unclassified keys;
* * * * *
[FR Doc. 2010-15126 Filed 6-22-10; 8:45 am]
BILLING CODE 5001-08-P