[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Rules and Regulations]
[Pages 38051-38052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16396]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
RIN 0750-AG93
Defense Federal Acquisition Regulation Supplement; Definition of
Sexual Assault (DFARS Case 2010-D023)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule to the Defense Federal Acquisition
Regulation Supplement (DFARS) to ensure contractor employees
accompanying U.S. Armed Forces are made aware of the DoD definition of
sexual assault as defined in DoD Directive 6495.01, Sexual Assault
Prevention and Response Program, and that many of the offenses
addressed in the definition are covered under the Uniform Code of
Military Justice. Further, sexual assault offenses in the definition,
which are not covered by the Uniform Code of Military Justice, may
nevertheless have consequences to contractor employees under DFARS
[[Page 38052]]
clause 252.225-7040, Contractor Personnel Authorized to Accompany U.S.
Armed Forces Deployed Outside the United States.
DATES: Effective date: June 29, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Julian Thrash, 703-602-0310.
SUPPLEMENTARY INFORMATION:
I. Background
DoD Inspector General audit D-2010-052, entitled ``Efforts to
Prevent Sexual Assault/Harassment Involving DoD Contractors During
Contingency Operations,'' dated April 16, 2010, provided
recommendations for the Under Secretary of Defense for Acquisition,
Technology, and Logistics to develop requirements in all DoD contracts
supporting contingency operations to ensure contractor employees
accompanying U.S. Armed Forces are aware of the definition of ``sexual
assault.''
A proposed rule was published in the Federal Register at 75 FR
73997, on November 30, 2010. That rule proposed adding at DFARS
252.225-7040(d)(3) a new requirement for compliance with laws and
regulations. The proposed change required the contractor to ensure that
contractor employees accompanying U.S. Armed Forces be aware of the DoD
definition of ``sexual assault'' as defined in DoD Directive (DoDD)
6495.01, ``Sexual Assault Prevention and Response Program.'' The rule
also proposed to also inform contractor employees accompanying U.S.
Armed Forces, that such offenses in the definition are covered under
the Uniform Code of Military Justice, Title 10, Chapter 47
(http:[sol][sol]www.constitution.org/mil/ucmj19970615.htm). DoDD
6495.01, ``Sexual Assault Prevention and Response Program,'' is
available at http:[sol][sol]www.dtic.mil/whs/directives/corres/pdf/
649501p.pdf.
II. Discussion and Analysis
A. Public Comments
Two respondents submitted positive comments in response to the
proposed rule. These respondents supported DoD's inclusion of the
reference to this definition in the clause at 252.225-7040, Contractor
Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside
the United States.
B. Other Changes
DoD revised the final rule to--
--Clarify that many of the offenses addressed in the DoDD 6495.01,
``Sexual Assault Prevention and Response Program,'' definition of
sexual assault are covered under the Uniform Code of Military Justice
with a reference to paragraph (e)(2)(iv) of the clause; and
--Require contractors to provide awareness to contractor employees that
sexual assault offenses in the definition, which are not covered by the
Uniform Code of Military Justice, may nevertheless have consequences to
contractor employees under DFARS clause 252.225-7040, Contractor
Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside
the United States, paragraph (h)(1).
III. Executive Orders 12866 and 13563
Executive Orders 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). Executive
Order 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 Executive Order 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
DoD certifies that this final rule will not have significant
economic impact on a substantial number of small entities within the
meaning for the Regulatory Flexibility Act, 5 U.S.C. 604, et seq.,
because the rule does not impose any additional significant
requirements on small businesses.
This DFARS rule requires contractors to ensure their employees are
aware of the DoD definition of sexual assault contained in DoDD 6495,
Sexual Assault Prevention and Response Program, and how that definition
relates to existing contractual conditions, i.e., many of the offenses
addressed in the definition are covered under the Uniform Code of
Military Justice. DFARS 252.225-7040(e)(2)(iv) previously informed
contractors that contractor personnel authorized to accompany U.S.
Armed Forces in the field are subject to the jurisdiction of the
Uniform Code of Military Justice. Offenses in the definition, which are
not covered by the Uniform Code of Military Justice, may nevertheless
have consequences to contractor employees under DFARS clause 252.225-
7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces
Deployed Outside the United States, paragraph (h)(1).
A proposed rule published in the Federal Register at 75 FR 73997,
on November 30, 2010, invited comments from small businesses, and other
interested parties. No comments were received from small entities on
the affected DFARS subpart with regard to small businesses.
V. Paperwork Reduction Act
The rule does not impose any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 chapter 35).
List of Subjects in 48 CFR Part 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR part 252 is amended as follows:
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
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.
0
2. Amend section 252.225-7040 by adding paragraph (d)(3) to read as
follows:
252.225-7040 Contractor Personnel Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States
* * * * *
(d) * * *
(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 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); and
(iii) 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).
* * * * *
(End of clause)
[FR Doc. 2011-16396 Filed 6-28-11; 8:45 am]
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