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[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Rules and Regulations]
[Pages 38051-38052]
From the Federal Register Online via the Government Printing 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]
BILLING CODE 5001-08-P
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