Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Rules and Regulations 38051 

please check www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, telephone 703 602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This interim rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) subpart 215.3, 

Source Selection. It amends DFARS 

215.304(c) by adding paragraph (iv) to 

state that the manufacturing readiness 

and manufacturing-readiness processes 

of potential contractors and 

subcontractors shall be considered as a 

part of the source selection process for 

major defense acquisition programs. 

II. 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. 

III. Regulatory Flexibility Act 

DoD has performed an initial 

regulatory flexibility analysis consistent 

with 5 U.S.C. 603. The interim rule will 

apply to DoD Major Defense Acquisition 

Program contractors and subcontractors. 

As such, it is not expected that this rule 

will have a significant impact on a 

significant number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

However, an Initial Regulatory 

Flexibility Analysis has been prepared 

and is summarized as follows. 

This interim rule amends the DFARS 

to implement section 812 of the 

National Defense Authorization Act for 

FY 2011 (Pub. L. 111–383) (10 U.S.C. 

2430 note). Section 812(b)(5) requires 

appropriate consideration of the 

manufacturing readiness and 

manufacturing readiness processes of 

potential contractors and subcontractors 

as a part of the source selection process 

for major defense acquisition programs. 

The rule will apply to DoD Major 

Defense Acquisition Program 

contractors and subcontractors. Most 

major defense acquisition programs are 

awarded to large concerns as they are of 

a scope too large for any small business 

to perform. As such, it is not expected 

that this rule will have a significant 

impact on a significant number of small 

entities. 

The interim rule imposes no 

reporting, recordkeeping, or other 

information collection requirements. 

The proposed rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. There are no known 

significant alternatives to the rule that 

would meet the requirements of the 

statute. 

DoD invites comments from small 

businesses 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. 

601. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2011–D031) in 

correspondence. 

IV. 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 U.S.C. 

chapter 35). 

V. 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. This interim rule implements 

section 812 of the National Defense 

Authorization Act for Fiscal Year 2011, 

enacted on January 7, 2011. Section 812 

requires implementation within 180 

days, by July 6, 2011, and an interim 

rule is required to meet the 

implementation date. This action is 

necessary in order to require contracting 

officers to consider the manufacturing 

readiness and manufacturing-readiness 

processes of potential contractors and 

subcontractors as a part of the source 

selection process for major defense 

acquisition programs. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Part 215 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 215 is 

amended as follows: 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 1. The authority citation for 48 CFR 

part 215 continues to read as follows: 

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

chapter 1. 

■ 2. Amend section 215.304 by adding 

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

215.304 Evaluation factors and significant 

subfactors. 

(c) * * * 

(iv) In accordance with section 812 of 

the National Defense Authorization Act 

for Fiscal Year 2011, consider the 

manufacturing readiness and 

manufacturing-readiness processes of 

potential contractors and subcontractors 

as a part of the source selection process 

for major defense acquisition programs. 

[FR Doc. 2011–16319 Filed 6–28–11; 8:45 am] 

BILLING CODE 5001–08–P 

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. 

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 

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38052 Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Rules and Regulations 

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://

www.constitution.org/mil/ 

ucmj19970615.htm). DoDD 6495.01, 

‘‘Sexual Assault Prevention and 

Response Program,’’ is available at 

http://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 

■ 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. 

■ 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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