2011-16396. 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 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)