[Federal Register: June 23, 2010 (Volume 75, Number 120)]
[Rules and Regulations]               
[Page 35684-35685]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn10-30]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 209 and 252

 
Defense Federal Acquisition Regulation Supplement; Ownership or 
Control by a Foreign Government (DFARS Case 2010-D010)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule to implement revisions to DoD 
Directive-Type Memorandum (DTM) 09-019, ``Policy Guidance for Foreign 
Ownership, Control, or Influence (FOCI).'' The DTM revises the 
description of communications security material that is ``proscribed 
information.''

DATES: Effective date: June 23, 2010.
    Comment date: August 23, 2010.

ADDRESSES: You may submit comments, identified by DFARS Case 2010-D010, 
using any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2010-D010 in the 
subject line of the message.
    [cir] Fax: 703-602-0350.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Mr. 
Julian E. Thrash, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060.
    Comments received generally will be posted without change to http:/
/www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Julian E. Thrash, 703-602-0310. 
Please cite DFARS Case 2010-D010.

SUPPLEMENTARY INFORMATION:

A. Background

    DoD has revised Directive-Type Memorandum (DTM) 09-019, ``Policy 
Guidance for Foreign Ownership, Control, or Influence (FOCI),'' which 
requires conforming changes to the DFARS. This rule revises DFARS 
209.104-1, General standards, to reflect that the responsible office is 
the Undersecretary of Defense for Intelligence. Additionally, 
subparagraph (a)(4) of DFARS 252.209-7002, Disclosure of Ownership or 
Control by a Foreign Government, is revised to reflect changes required 
by the DTM to the definition of ``proscribed information.'' The DTM 
revises the description of communication security material that is 
``proscribed information.''
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993. This rule is not 
a major rule under 5 U.S.C. 604.

B. Regulatory Flexibility Act

    DoD does not expect this interim rule to have a significant 
economic impact on a substantial number of entities within the meaning 
of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it 
only impacts companies that are owned or controlled by a foreign 
government, and most small entities, as defined in the Regulatory 
Flexibility Act, are not owned or controlled by a foreign government.
    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 2010-D010) in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply, because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD) that urgent and compelling reasons exist to promulgate 
this interim rule without prior opportunity for public comments 
pursuant to 41 U.S.C. 418b and FAR 1.501-3(b). DoD Directive-Type 
Memorandum (DTM) 09-019, ``Policy Guidance for Foreign Ownership, 
Control, or Influence (FOCI),'' effective June 8, 2010, implements 
changes to the definition of ``proscribed information.'' In reviewing 
the DTM, it became apparent that the current wording at DFARS 252.209-
7002 is potentially misleading. If the DFARS is not changed to be 
consistent with the revised DTM, contracting officers and contractors 
will be misinformed as to the meaning of ``proscribed information.'' 
DoD will consider public comments received in response to this interim 
rule in the formation of the final rule.

[[Page 35685]]

List of Subjects in 48 CFR Parts 209 and 252

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 209 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 209 and 252 continues to 
read as follows:

    Authority:  41 U.S.C. 421 and 48 CFR chapter 1.

PART 209-CONTRACTOR QUALIFICATIONS

0
2. Section 209.104-1 is amended by revising paragraph (g)(ii)(B) and 
the introductory text of paragraph (g)(ii)(C) to read as follows:


209.104-1  General standards.

* * * * *
    (g) * * *
    (ii) * * *
    (B) Whenever the contracting officer has a question about 
application of the provision at 252.209-7002, the contracting officer 
may seek advice from the Security Directorate, Office of the Deputy 
Under Secretary of Defense, Human Intelligence, Counterintelligence, 
and Security.
    (C) In accordance with 10 U.S.C. 2536(b)(1)(A), the Secretary of 
Defense may waive the prohibition in paragraph (g)(ii)(A) of this 
subsection upon determining that the waiver is essential to the 
national security interests of the United States. The Secretary has 
delegated authority to grant this waiver to the Undersecretary of 
Defense for Intelligence. Waiver requests, prepared by the requiring 
activity in coordination with the contracting officer, shall be 
processed through the Director of Defense Procurement and Acquisition 
Policy, Office of the Under Secretary of Defense (Acquisition, 
Technology, and Logistics), and shall include a proposed national 
interest determination. The proposed national interest determination, 
prepared by the requiring activity in coordination with the contracting 
officer, shall include:
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Section 252.209-7002 is amended by revising the clause date and 
paragraph (a)(4)(ii) to read as follows:


252.209-7002  Disclosure of ownership or control by a foreign 
government.

* * * * *

DISCLOSURE OF OWNERSHIP OR CONTROL BY A FOREIGN GOVERNMENT (JUN 
2010)(a) * * *

    (4)* * *
    (ii) Communications security (COMSEC) material, excluding 
controlled cryptographic items when unkeyed or utilized with 
unclassified keys;
* * * * *

[FR Doc. 2010-15126 Filed 6-22-10; 8:45 am]
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