13546 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations 

structures for use by the Armed Forces, 

the contracting officer shall award 

contracts that provide the best value. 

Temporary structures covered by this 

paragraph are nonpermanent buildings, 

including tactical shelters, 

nonpermanent modular or prefabricated buildings, or portable or 

relocatable buildings, such as trailers or 

equipment configured for occupancy 

(see also 246.270–2). Determination of 

best value includes consideration of the 

total life-cycle costs of such tents or 

structures, including the costs 

associated with any equipment, fuel, or 

electricity needed to heat, cool, or light 

such tents or structures (see FAR 

7.105(a)(3)(i) and PGI 207.105(a)(3)(i)). 

(b) The requirements of this section 

apply to any agency or department that 

acquires tents or other temporary 

structures on behalf of DoD (see FAR 

17.503(d)(2)). 

PART 225—FOREIGN ACQUISITION 

■ 3. Section 225.7002–1 is amended by 

revising paragraph (a)(3) to read as 

follows: 

225.7002–1 Restrictions. 

(a) * * * 

(3)(i) Tents and the structural 

components of tents; 

(ii) Tarpaulins; or 

(iii) Covers. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.212–7001 [Amended] 

■ 4. Section 252.212–7001 is amended 

by removing the clause date ‘‘(DEC 

2012)’’ and adding ‘‘(FEB 2013)’’ in its 

place, and in paragraph (b)(9) removing 

‘‘(DEC 2012)’’ and adding ‘‘(FEB 2013)’’ 

in its place. 

■ 5. Section 252.225–7012 is amended 

by removing the clause date ‘‘(DEC 

2012)’’ and adding ‘‘(FEB 2013)’’ in its 

place, and by revising paragraph (b)(3) 

to read as follows: 

252.225–7012 Preference for certain 

domestic commodities. 

* * * * * 

(b) * * * 

(3)(i) Tents and structural components 

of tents; 

(ii) Tarpaulins; or 

(iii) Covers. 

* * * * * 

[FR Doc. 2013–04355 Filed 2–27–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 219 and 252 

[DFARS Case 2009–D002] 

RIN 0750–AG40 

Defense Federal Acquisition 

Regulation Supplement; Electronic 

Subcontracting Reporting System 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has adopted as final, 

with changes, an interim rule, amending 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

conform to the FAR regarding policy 

and procedures related to the Electronic 

Subcontracting Reporting System. 

DATES: Effective February 28, 2013. 

FOR FURTHER INFORMATION CONTACT: Lee 

Renna, Defense Acquisition Regulations 

System, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 571–372–6095. 

SUPPLEMENTARY INFORMATION:

I. Background 

DoD published an interim rule in the 

Federal Register at 75 FR 65439 on 

October 25, 2010, to amend section 

219.708, clauses 252.212–7001, 

252.219–7003, and 252.219–7004, and 

sections I–105 and I–112 of Appendix I, 

to provide DoD-specific procedures and 

policies related to the Electronic 

Subcontracting Reporting System 

(eSRS). There were no comments 

received in response to the interim rule. 

Accordingly, the interim rule amending 

48 CFR parts 219, 252, and Appendix I, 

is adopted as a final rule with only 

minor technical changes at 219.708. 

II. Executive Order 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 

(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. The Office of Information 

and Regulatory Affairs has determined 

that this is not a significant regulatory 

action and, therefore, was not 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 certifies that this final rule will 

not 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. 

IV. Paperwork Reduction Act. 

This final rule does not contain any 

new information collection 

requirements that require the approval 

of the Office of Management and Budget 

under the Paperwork Reduction Act (44 

U.S.C. 35). 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, Subcontracting 

Plans/Individual subcontract Report (SF 

294) and 9000–0007, Summary Contract 

Report. 

List of Subjects in 48 CFR Parts 219 and 

252 

Government procurement. 

Kortnee Stewart, 

Editor, Defense Acquisition Regulations 

System. 

Accordingly, the interim rule 

amending 48 CFR parts 219 and 252, 

which was published in the Federal 

Register at 75 FR 65439 on October 25, 

2010, is adopted a final with the 

following changes: 

PART 219—SMALL BUSINESS 

PROGRAMS 

■ 1. The authority citation for 48 CFR 

part 219 continues to read as follows: 

Authority: 41. U.S.C. 1303 and 48 CFR 

Chapter 1. 

■ 2. Section 219.708 is amended by 

revising paragraph (b)(1) to read as 

follows: 

219.708 Contract clauses. 

(b)(1)(A) Except as provided in 

paragraph (b)(1)(B) of this section, 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 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations 13547 

Business Subcontracting Plan. (B)(1) In 

prime 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. 

(2) However, also include in the 

prime contract, solely for the purpose of 

flowing the clauses down to 

subcontractors— 

(i) FAR clause 52.219–9, Small 

Business Subcontracting Plan, and 

252.219–7003; or 

(ii) When the contract will not be 

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

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. 

* * * * * 

[FR Doc. 2013–04362 Filed 2–27–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

[DFARS Case 2012–D006] 

RIN 0750–AH57 

Defense Federal Acquisition 

Regulation Supplement: Alleged 

Crimes By or Against Contractor 

Personnel 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement a section of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2009 and 

expand coverage on contractor 

requirements and responsibilities 

relating to alleged crimes by or against 

contractor personnel. 

DATES: Effective February 28, 2013. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, telephone 571–372– 

6098. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 77 FR 14490 on 

March 12, 2012, to revise paragraph (d) 

of the clause at DFARS 252.225–7040, 

Contractor Personnel Authorized to 

Accompany U.S. Armed Forces 

Deployed Outside the United States, to 

require contractors to provide 

information to their employees on how 

and where to report alleged crimes and 

where to seek assistance or 

whistleblower protection. These 

requirements apply to all DoD contracts 

that authorize contractor personnel to 

accompany U.S. Armed Forces 

deployed outside the United States in 

contingency operations, humanitarian 

or peacekeeping operations, or other 

military operations when the latter are 

designated by the combatant 

commander. Section 854 of the NDAA 

for FY 2009 (Pub. L. 110–417) applied 

this requirement just to contracts 

performed in Iraq and Afghanistan. Four 

respondents submitted public 

comments in response to the proposed 

rule. 

II. Discussion and Analysis of the 

Public Comments 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments is provided, as follows: 

A. Summary of Changes From the 

Proposed Rule 

The Defense Criminal Investigative 

Service was added to the list at 

paragraph (d)(6) of the clause, and the 

title for the U.S. Army Criminal 

Investigation Command was corrected. 

In addition, the explanation of the 

impact of the changes was clarified in 

Section I, Background, of this notice. 

B. Analysis of Public Comments 

1. Add the Defense Criminal 

Investigative Service to the List of 

Appropriate Investigative Agencies 

Comment: One respondent requested 

the addition of the Defense Criminal 

Investigative Service (DCIS) to the list of 

appropriate criminal investigative 

agencies to which suspected crimes 

should be reported. DCIS is the criminal 

investigative arm of the DoD Office of 

the Inspector General, and it also 

investigates alleged crimes involving 

contractor personnel. 

Response: The requested change has 

been made. 

2. Update the Information on the U.S. 

Army Criminal Investigation Command 

Comment: One respondent stated that 

the U.S. Army’s criminal investigative 

unit was established as a major 

command on September 17, 1971, and 

renamed the ‘‘U.S. Army Criminal 

Investigation Command.’’ 

Response: The requested change has 

been made. 

3. Clarify the Impact of the Change on 

Applicability of These Requirements 

Comment: A respondent stated that 

the explanation of the proposed change 

and its impact in the proposed rule (77 

FR 14490) were not clear and implied 

that the applicability of the clause at 

DFARS 252.225–7040 was proposed for 

revision, without, however, actually 

amending the clause prescription. 

Response: The ‘‘Background’’ section 

of the proposed rule could have been 

interpreted more than one way. 

However, the preamble to this final rule 

makes clear that there is no change to 

the applicability of DFARS clause 

252.225–7040. 

4. Consider Imposing a Range of 

Penalties in the Event of 

Noncompliance 

Comment: A respondent expressed 

support for ‘‘these relatively modest 

requirements on contractors.’’ In 

addition, the respondent suggested that, 

to strengthen accountability, DoD 

should consider imposing a range of 

penalties in the event of 

noncompliance, ‘‘much like noncompliance with the trafficking in 

persons provision in the Federal 

Acquisition Regulation (FAR) subjects 

contractors to the following remedies: 

(1) Requiring the contractor to remove 

a contractor employee or employees 

from the performance of the contract; 

(2) Requiring the contractor to 

terminate a subcontract; 

(3) Suspension of contract payments; 

(4) Loss of award fee, consistent with 

the award fee plan, for the performance 

period in which the government 

determined contractor non-compliance; 

(5) Termination of the contract for 

default or cause, in accordance with the 

termination clause of this contract; or 

(6) Suspension or debarment.’’ 

The respondent cited FAR 52.222–50(e) 

as the source for the above list. 

Response: Most or all of the remedies 

that are cited by the respondent are 

already available to the Government in 

the event of noncompliance by a 

contractor with the requirements of a 

clause that is included in its contract. It 

is not necessary to cite them in each 

individual contract clause to which they 

may be applied. 

III. 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 


srobinson on DSK4SPTVN1PROD with RULES