Federal Register / Vol. 75, No. 205 / Monday, October 25, 2010 / Rules and Regulations 65439 

■ 5. Section 247.574 is amended by 

adding paragraph (f) to read as follows: 

247.574 Solicitation provisions and 

contract clauses. 

* * * * * 

(f) Use the clause at 252.247–7027, 

Riding Gang Member Requirements, in 

solicitations and contracts for the 

charter of, or contract for carriage of 

cargo by, a U.S.-flag vessel documented 

under chapter 121 of title 46 U.S.C. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Section 252.247–7027 is added to 

read as follows: 

252.247–7027 Riding gang member 

requirements. 

As prescribed in 247.574(f), use the 

following clause: 

RIDING GANG MEMBER REQUIREMENTS 

(OCT 2010) 

(a) Definition. Riding gang member, as used 

in this clause, has the same definition as 

‘‘riding gang member’’ in title 46 U.S.C. 2101. 

(b) Requirements relating to riding gang 

members. Notwithstanding 46 U.S.C. 8106, 

the Contractor shall ensure each riding gang 

member holds a valid U.S. Merchant 

Mariner’s Document issued under 46 U.S.C. 

chapter 73, or a transportation security card 

issued under section 70105 of such title. 

(c) Exemption. 

(1) An individual is exempt from the 

requirements of paragraph (b) of this clause 

and shall not be treated as a riding gang 

member for the purposes of section 8106 of 

title 46, if that individual is on a vessel for 

purposes other than engaging in the 

operation or maintenance of the vessel and 

is— 

(i) One of the personnel who accompanies, 

supervises, guards, or maintains unit 

equipment aboard a ship, commonly referred 

to as supercargo personnel; 

(ii) One of the force protection personnel 

of the vessel; 

(iii) A specialized repair technician; or 

(iv) An individual who is otherwise 

required by the Secretary of Defense or 

designee to be aboard the vessel. 

(2) Any individual who is exempt under 

paragraph (c)(1) of this clause must pass a 

DoD background check before going aboard 

the vessel. With regard to these exempt 

individuals, the Contractor shall submit the 

name and other necessary identifying 

information for a background check to the 

approving official specified in the contract. 

The head of the contracting activity may 

waive this requirement if the individual 

possesses a valid U.S. Merchant Mariner’s 

Document issued under 46 U.S.C., chapter 

73, or a transportation security card issued 

under section 70105 of such title. 

(3) An individual exempted under 

paragraph (c)(1) of this clause is not treated 

as a riding gang member and shall not be 

counted as an individual in addition to the 

crew for the purposes of 46 U.S.C. 3304. 

(End of clause) 

[FR Doc. 2010–26721 Filed 10–22–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 219 and 252 

[DFARS Case 2009–D002] 

Defense Federal Acquisition 

Regulation Supplement; Electronic 

Subcontracting Reporting System 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This interim rule amends the 

Defense Acquisition Regulation 

Supplement (DFARS) to conform to the 

Federal Acquisition Regulation (FAR) 

by providing Department of Defense 

(DoD)-specific policy and procedures 

related to the Electronic Subcontracting 

Reporting System (eSRS). The FAR has 

been revised to reflect use of the eSRS, 

rather than Standard Form 294— 

Subcontract Report for Individual 

Contracts, and Standard Form 295— 

Summary Subcontract Report, for 

submission of small business 

subcontract reports. 

DATES: Effective date: October 25, 2010. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before December 27, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D002, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D002 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. 

Cassandra R. Freeman, OUSD (AT&L) 

DPAP (DARS), 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. 

All comments received will be posted 

to http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cassandra R. Freeman, Defense 

Acquisition Regulations System, OUSD 

(AT&L) DPAP (DARS), 3060 Defense 

Pentagon, Room 3B855, Washington, DC 

20301–3060, Telephone 703–602–8383; 

facsimile(703)602–0350. Please cite 

DFARS Case 2009–D002. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This DFARS case is the companion 

case to FAR Case 2005–040 Electronic 

Subcontracting Reporting System. This 

DFARS interim rule amends sections 

219.708 and 252.219 to provide DoDspecific procedures and policies related 

to DoD’s implementation of eSRS. 

B. Regulatory Flexibility Act 

DoD does not expect this 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 small businesses are not 

required to have subcontracting plans 

and, therefore, are not required to use 

eSRS to submit reports on their progress 

in achieving the goals in those plans. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

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 2009–D002 in 

correspondence. 

C. Paperwork Reduction Act 

This interim rule does not impose any 

new information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. This rule 

provides DoD instructions on how to 

submit reports that are already required 

by the FAR and are covered under 

Office of Management and Budget 

Clearance Numbers 9000–0006 and 

9000–0007. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. The FAR already requires the 

use of eSRS for submission of 

subcontracting reports. This interim rule 

provides to DoD contractors the DoDspecific policies and procedures that 

they must follow in order to be able to 

submit subcontract reports using eSRS, 

as required by the FAR. 

WReier-Aviles on DSKJ8SOYB1PROD with RULES

65440 Federal Register / Vol. 75, No. 205 / Monday, October 25, 2010 / Rules and Regulations 

List of Subjects in 48 CFR Parts 219 and 

252 

Government procurement. 

Clare M. Zebrowski, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 219 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 219 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 219—SMALL BUSINESS 

PROGRAMS 

■ 2. Section 219.708 is amended by 

revising paragraph (b)(1) to read as 

follows: 

219.708 Contract clauses. 

(b)(1)(A) Use the clause at 252.219– 

7003, Small Business Subcontracting 

Plan (DoD Contracts)— 

(1) In solicitations and contracts that 

contain the clause at FAR 52.219–9, 

Small Business Subcontracting Plan. 

(2) With its Alternate I in contracts 

that use Alternate III of 52.219–9, Small 

Business Subcontracting Plan. 

(B) In contracts with contractors that 

have comprehensive subcontracting 

plans approved under the test program 

described in 219.702, use the clause at 

252.219–7004, Small Business 

Subcontracting Plan (Test Program), 

instead of the clauses at 252.219–7003, 

Small Business Subcontracting Plan 

(DoD Contracts), and FAR 52.219–9, 

Small Business Subcontracting Plan. 

Include — 

(1) FAR clause 52.219–9, Small 

Business Subcontracting Plan and 

252.219–7003 in the contract for 

purposes of the contractor flowing these 

clauses down to subcontractors, except 

(2) When the contract will not be 

reported in FPDS (see FAR 4.606 (c)(5)), 

include FAR clause 52.219–9, Small 

Business Subcontracting Plan with its 

Alternate III and 252.219–7003 Small 

Business Subcontracting Plan (DoD 

Contracts) with its Alternate I in the 

contract for purposes of the contractor 

flowing these clauses down to 

subcontractors. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Section 252.212–7001 is amended 

by revising the clause date to read 

‘‘(OCT 2010)’’ in the clause title and 

paragraphs (b)(3) and (b)(4). 

■ 4. Section 252.219–7003 is revised to 

read as follows: 

252.219–7003 Small business 

subcontracting plan (DoD contracts). 

As prescribed in 219.708(b)(1)(A)(1), 

use the following clause: 

SMALL BUSINESS 

SUBCONTRACTING PLAN (DoD 

CONTRACTS) (OCT 2010) 

This clause supplements the Federal 

Acquisition Regulation 52.219–9, Small 

Business Subcontracting Plan, clause of this 

contract. 

(a) Definitions. As used in this clause— 

Historically black colleges and universities 

means institutions determined by the 

Secretary of Education to meet the 

requirements of 34 CFR Section 608.2. The 

term also means any nonprofit research 

institution that was an integral part of such 

a college or university before November 14, 

1986. 

Minority institutions means institutions 

meeting the requirements of Section 1046(3) 

of the Higher Education Act of 1965 (20 

U.S.C. 1135d–5(3)). The term also includes 

Hispanic-serving institutions as defined in 

Section 316(b)(1) of such Act (20 U.S.C. 

1059c(b)(1)). 

Summary Subcontract Report (SSR) 

Coordinator means the individual at the 

department or agency level who is registered 

in eSRS and is responsible for acknowledging 

receipt or rejecting SSRs in eSRS for the 

department or agency. 

(b) Except for company or division-wide 

commercial items subcontracting plans, the 

term ‘‘small disadvantaged business,’’ when 

used in the FAR 52.219–9 clause, includes 

historically black colleges and universities 

and minority institutions, in addition to 

small disadvantaged business concerns. 

(c) Work under the contract or its 

subcontracts shall be credited toward 

meeting the small disadvantaged business 

concern goal required by paragraph (d) of the 

FAR 52.219–9 clause when: 

(1) It is performed on Indian lands or in 

joint venture with an Indian Tribe or a 

Tribally-owned corporation, and 

(2) It meets the requirements of 10 U.S.C. 

2323a. 

(d) Subcontracts awarded to workshops 

approved by the Committee for Purchase 

from People Who are Blind or Severely 

Disabled (41 U.S.C. 46–48), may be counted 

toward the Contractor’s small business 

subcontracting goal. 

(e) A mentor firm, under the Pilot MentorProtege Program established under Section 

831 of Public Law 101–510, as amended, may 

count toward its small disadvantaged 

business goal, subcontracts awarded— 

(1) Protege firms which are qualified 

organizations employing the severely 

handicapped; and 

(2) Former protege firms that meet the 

criteria in Section 831(g)(4) of Public Law 

101–510. 

(f) The master plan is approval by the 

Contractor’s cognizant contract 

administration activity. 

(g) In those subcontracting plans which 

specifically identify small businesses, the 

Contractor shall notify the Administrative 

Contracting Officer of any substitutions of 

firms that are not small business firms, for 

the small business firms specifically 

identified in the subcontracting plan. 

Notifications shall be in writing and shall 

occur within a reasonable period of time after 

award of the subcontract. Contractorspecified formats shall be acceptable. 

(h)(1) For DoD, the Contractor shall submit 

reports in eSRS as follows: 

(i) The Individual Subcontract Report (ISR) 

shall be submitted to the contracting officer 

at the procuring contracting office, even 

when contract administration has been 

delegated to the Defense Contract 

Management Agency. 

(ii) An SSR for other than a commercial 

subcontracting plan, or construction and 

related maintenance repair contracts, shall be 

submitted in eSRS to the department or 

agency within DoD that administers the 

majority of the Contractor’s individual 

subcontracting plans. An example would be 

Defense Finance and Accounting Service or 

Missile Defense Agency. 

(2) For DoD, the authority to acknowledge 

receipt or reject reports in eSRS is as follows: 

(i) The authority to acknowledge receipt or 

reject the ISR resides with the contracting 

officer who receives it, as described in 

paragraph (h)(1)(i) of this clause. 

(ii) Except as provided in (h)(2)(iii), the 

authority to acknowledge receipt or reject 

SSRs in eSRS resides with the SSR 

Coordinator at the department or agency that 

administers the majority of the Contractor’s 

individual subcontracting plans. 

(iii) The authority to acknowledge receipt 

or reject SSRs for construction and related 

maintenance and repair contracts resides 

with the SSR Coordinator for each 

department or agency. 

(iv) The authority to acknowledge receipt 

or reject the Year-End Supplementary Report 

for Small Disadvantaged Businesses resides 

with the SSR Coordinator who acknowledges 

receipt or rejects the SSR. 

(v) If the Contractor submits the Small 

Disadvantaged Business Participation report 

using eSRS, the authority to acknowledge 

receipt or reject this report in eSRS resides 

with the contracting officer who 

acknowledges receipt or rejects the ISR. 

(End of clause) 

ALTERNATE I (OCT 2010) 

As prescribed in 219.708(b)(1)(A)(2), 

substitute the following paragraph 

(h)(1)(i) for paragraph (h)(1)(i) in the 

basic clause: 

(h)(1)(i) The Standard Form 294 

Subcontracting Report for Individual 

Contracts shall be submitted in accordance 

with the instructions on that form; paragraph 

(h)(2)(i) is inapplicable. 

■ 5. Section 252.219–7004 is added to 

read as follows: 

252.219–7004 Small business 

subcontracting plan (test program). 

As prescribed in 219.708(b)(1)(B), use 

the following clause: 

WReier-Aviles on DSKJ8SOYB1PROD with RULES

Federal Register / Vol. 75, No. 205 / Monday, October 25, 2010 / Rules and Regulations 65441 

SMALL BUSINESS 

SUBCONTRACTING PLAN (TEST 

PROGRAM) (OCT 2010) 

(a) Definition. 

Electronic Subcontracting Reporting 

System (eSRS) means the Governmentwide, 

electronic, Web-based system for small 

business subcontracting program reporting. 

The eSRS is located at http://www.esrs.gov. 

(b) The Offeror’s comprehensive small 

business subcontracting plan and its 

successors, which are authorized by and 

approved under the test program of Section 

834 of Pub. L. 101–189, as amended, shall be 

included in and made a part of the resultant 

contract. Upon expulsion from the test 

program or expiration of the test program, the 

Contractor shall negotiate an individual 

subcontracting plan for all future contracts 

that meet the requirements of Section 211 of 

Public Law 95–507. 

(c) The Contractor shall— 

(1) Ensure that subcontractors with 

subcontracting plans agree to submit an 

Individual Subcontract Report (ISR) and/or 

Summary Subcontract Report (SSR) using the 

Electronic Subcontracting Reporting System 

(eSRS); 

(2) Provide its contract number, its DUNS 

number, and the e-mail address of the 

Contractor’s official responsible for 

acknowledging or rejecting the ISR to all 

first-tier subcontractors, who will be required 

to submit ISRs, so they can enter this 

information into the eSRS when submitting 

their reports; 

(3) Require that each subcontractor with a 

subcontracting plan provide the prime 

contract number, its own DUNS number, and 

the e-mail address of the subcontractor’s 

official responsible for acknowledging or 

rejecting the ISRs to its subcontractors with 

subcontracting plans who will be required to 

submit ISRs; and 

(4) Acknowledge receipt or reject all ISRs 

submitted by its subcontractors using eSRS. 

(d) The Contractor shall submit SSRs using 

eSRS at http://www.esrs.gov. The reports 

shall provide information on subcontract 

awards to small business concerns, veteranowned small business concerns, servicedisabled veteran-owned small business 

concerns, HUBZone small business concerns, 

small disadvantaged business concerns, 

women-owned small business concerns, and 

Historically Black Colleges and Universities 

and Minority Institutions. Purchases from a 

corporation, company, or subdivision that is 

an affiliate of the prime Contractor or 

subcontractor are not included in these 

reports. Subcontract award data reported by 

prime contractors and subcontractors shall be 

limited to awards made to their immediate 

next-tier subcontractors. Credit cannot be 

taken for awards made to lower tier 

subcontractors unless the Contractor or 

subcontractor has been designated to receive 

a small business or small disadvantaged 

business credit from an ANC or Indian Tribe. 

Only subcontracts involving performance in 

the U.S. or its outlying areas should be 

included in these reports. 

(1) This report may be submitted on a 

corporate, company or subdivision (e.g., 

plant or division operating as a separate 

profit center) basis, as negotiated in the 

comprehensive subcontracting plan with the 

Defense Contract Management Agency. 

(2) This report encompasses all 

subcontracting under prime contracts and 

subcontracts with the Department of Defense, 

regardless of the dollar value of the 

subcontracts, and is based on the negotiated 

comprehensive subcontracting plan. 

(3) The Contractor shall submit the report 

semi-annually for the six months ending 

March 31 and the twelve months ending 

September 30. Reports are due 30 days after 

the close of each reporting period. 

(4) The authority to receipt or reject the 

SSR resides with the Comprehensive 

Subcontracting Program Division, the 

Defense Contract Management Agency Small 

Business Center. 

(e) All reports submitted at the close of 

each fiscal year shall include a Year-End 

Supplementary Report for Small 

Disadvantaged Businesses. The report shall 

include subcontract awards, in whole dollars, 

to small disadvantaged business concerns by 

North American Industry Classification 

System (NAICS) Industry Subsector. If the 

data are not available when the year-end SSR 

is submitted, the prime Contractor and/or 

subcontractor shall submit the Year-End 

Supplementary Report for Small 

Disadvantaged Businesses within 90 days of 

submitting the year-end SSR. The authority 

to acknowledge receipt or reject the Year End 

Report resides with the Comprehensive 

Subcontracting Program Division, the 

Defense Contract Management Agency Small 

Business Center. 

(f) The failure of the Contractor or 

subcontractor to comply in good faith with 

the clause of this contract entitled 

‘‘Utilization of Small Business Concerns,’’ or 

an approved plan required by this clause, 

shall be a material breach of the contract. 

(g) The Contractor shall include, in 

contracts that offer subcontracting 

possibilities, are expected to exceed $550,000 

($1,000,000 for construction of any public 

facility), and are required to include the 

clause at 52.219–8, Utilization of Small 

Business Concerns— 

(1) FAR 52.219–9, Small Business 

Subcontracting Plan, and 252.219–7003, 

Small Business Subcontracting Plan (DoD 

Contracts), when the Contracting Officer has 

included these clauses in the contract for 

purposes of flowdown to subcontractors; 

(2) 52.219–9 Small Business 

Subcontracting Plan with its Alternate III and 

252.219–7003, Small Business 

Subcontracting Plan (DoD Contracts), with its 

Alternate I, when the Contracting Officer has 

included these clauses in the contract for 

flowdown to subcontractors to allow for 

submission of SF 294s in lieu of ISRs; or 

(3) 252.219–7004, Small Business 

Subcontracting Plan (Test Program), in 

subcontracts with subcontractors that 

participate in the test program described in 

DFARS 219.702. 

(End of clause) 

■ 6. In appendix I to chapter 2, Section 

I–105 is amended by revising paragraph 

(b)(7) to read as follows: 

Appendix I—Policy and Procedures for 

the DoD Pilot Mentor-Protege Program 

* * * * * 

I–105 Mentor approval process. 

(b) * * * 

(7) The total dollar amount and percentage 

of subcontracts that the company awarded to 

all SDB, women-owned small business, 

HUBZone small business, and servicedisabled veteran-owned small business firms 

under DoD contracts and other Federal 

agency contracts during the 2 preceding 

fiscal years. (Show DoD subcontract awards 

separately.) If the company presently is 

required to submit a Summary Subcontract 

Report (SSR) or previously submitted the 

Standard Form (SF) 295, the request must 

include copies of the final reports for the 2 

preceding fiscal years. 

■ 7. In appendix I to chapter 2, section 

I–112.1 is amended by revising the 

section heading and paragraph (a) to 

read as follows: 

I–112.1 Reporting requirements applicable 

to Individual Subcontract Reports (ISR), 

Summary Subcontract Reports (SSR) and SF 

294s. 

(a) Amounts credited toward applicable 

subcontracting goal(s) for unreimbursed costs 

under the Program must be separately 

identified on the appropriate ISR, SSR or SF 

294 reports from the amounts credited 

toward the goal(s) resulting from the award 

of actual subcontracts to protege firms. The 

combination of the two must equal the 

mentor firm’s overall accomplishment 

toward the applicable goal(s). 

* * * * * 

■ 8. In appendix I to chapter 2, section 

I–112.2 is amended by revising 

paragraph (c)(3) to read as follows: 

I–112.2 Program specific Reporting 

requirements. 

* * * * * 

(c) * * * 

(3) Dollars credited, if any, toward 

applicable subcontracting goals as a result of 

developmental assistance provided to the 

protege and a copy of the ISR or SF 294 and/ 

or SSR for each contract where 

developmental assistance was credited. 

* * * * * 

[FR Doc. 2010–26718 Filed 10–22–10; 8:45 am] 

BILLING CODE 5001–08–P 

WReier-Aviles on DSKJ8SOYB1PROD with RULES