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
13548 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations 

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. 

IV. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows: 

DoD is expanding coverage on 

contractor requirements and 

responsibilities relating to alleged 

crimes by or against contractor 

personnel. These requirements will be 

included in any contract that authorizes 

contractor personnel to accompany U.S. 

Armed Forces deployed outside the 

United States in (1) Contingency 

operations; (2) humanitarian or 

peacekeeping operations; or (3) other 

military operations or military exercises, 

when designated by the combatant 

commander. DoD is accomplishing this 

change by modifying the clause at 

DFARS 252.225–7040, Contractor 

Personnel Authorized to Accompany 

U.S. Armed Forces Deployed Outside 

the United States. 

The two key requirements are for the 

contractor to (a) report any alleged 

offenses against the Uniform Code of 

Military Justice and the Military 

Extraterritorial Jurisdiction Act to 

appropriate investigative authorities and 

(b) give contractor personnel who work 

in covered areas information on how 

and where to report an alleged Uniform 

Code of Military Justice or Military 

Extraterritorial Jurisdiction Act offense. 

The clause also provides contact 

information for the four criminal 

investigative agencies in the DoD. 

No significant issues were raised in 

the public comments received in 

response to the proposed rule. No 

comments were filed by the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

The rule will apply equally to all 

contractors, large and small, performing 

in deployed areas. Approximately 184 

small businesses may be impacted by 

these changes annually. However, there 

are no projected reporting, 

recordkeeping, or other compliance 

requirements associated with the 

proposed rule. The points of contact for 

reporting alleged crimes and/or seeking 

whistleblower protection are listed in 

the clause. Contractor compliance 

requirements have been limited to 

passing this clear, available information 

to their personnel. Because the burdens 

associated with these requirements have 

already been minimized, there are no 

significant alternatives that could 

further minimize the already minimal 

impact on businesses, small or large. 

V. Paperwork Reduction Act 

The rule does not contain 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). 

List of Subjects in 48 CFR Part 252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD amends 48 CFR part 

252 as follows: 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 1. The authority citation for part 252 

continues to read as follows: 

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

chapter 1. 

■ 2. Section 252.225–7040 is amended 

by— 

■ a. Removing the clause date ‘‘(JUN 

2011)’’ and adding ‘‘(FEB 2013) in its 

place; 

■ b. Revising paragraph (d)(3)(ii); and 

■ c. Adding paragraphs (d)(4) through 

(7). 

The revision and addition read as 

follows: 

252.225–7040 Contractor Personnel 

Authorized to Accompany U.S. Armed 

Forces Deployed Outside the United States. 

* * * * * 

(d) * * * 

(3) * * * 

(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). Other sexual misconduct may 

constitute offenses under the Uniform 

Code of Military Justice, Federal law, 

such as the Military Extraterritorial 

Jurisdiction Act, or host nation laws; 

(4) The Contractor shall report to the 

appropriate investigative authorities, 

identified in paragraph (d)(6) of this 

clause, any alleged offenses under— 

(i) The Uniform Code of Military 

Justice (chapter 47 of title 10, United 

States Code) (applicable to contractors 

serving with or accompanying an armed 

force in the field during a declared war 

or contingency operations); or 

(ii) The Military Extraterritorial 

Jurisdiction Act (chapter 212 of title 18, 

United States Code). 

(5) The Contractor shall provide to all 

contractor personnel who will perform 

work on a contract in the deployed area, 

before beginning such work, 

information on the following: 

(i) How and where to report an 

alleged crime described in paragraph 

(d)(4) of this clause. 

(ii) Where to seek victim and witness 

protection and assistance available to 

contractor personnel in connection with 

an alleged offense described in 

paragraph (d)(4) of this clause. 

(6) The appropriate investigative 

authorities to which suspected crimes 

shall be reported include the 

following— 

(i) US Army Criminal Investigation 

Command at http://www.cid.army.mil/ 

reportacrime.html; 

(ii) Air Force Office of Special 

Investigations at http:// 

www.osi.andrews.af.mil/library/ 

factsheets/factsheet.asp?id=14522; 

(iii) Navy Criminal Investigative 

Service at http://www.ncis.navy.mil/

Pages/publicdefault.aspx; 

(iv) Defense Criminal Investigative 

Service at http://www.dodig.mil/

HOTLINE/index.html; 

(v) To any command of any supported 

military element or the command of any 

base. 

(7) Personnel seeking whistleblower 

protection from reprisals for reporting 

criminal acts shall seek guidance 

through the DoD Inspector General 

hotline at 800–424–9098 or 

www.dodig.mil/HOTLINE/index.html. 

Personnel seeking other forms of victim 

or witness protections should contact 

the nearest military law enforcement 

office. 

* * * * * 

[FR Doc. 2013–04363 Filed 2–27–13; 8:45 am] 

BILLING CODE 5001–06–P 


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