[Federal Register Volume 71, Number 174 (Friday, September 8, 2006)]
[Rules and Regulations]
[Pages 53047-53049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14897]
[[Page 53047]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulation System
48 CFR Parts 237 and 252
[DFARS Case 2005-D007]
Defense Federal Acquisition Regulation Supplement; Training for
Contractor Personnel Interacting With Detainees
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD has adopted as final, with changes, an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement Section 1092 of the National Defense Authorization Act for
Fiscal Year 2005. Section 1092 requires that DoD contractor personnel
who interact with detainees receive training regarding the applicable
international obligations and laws of the United States.
DATES: Effective Date: September 8, 2006.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0328;
facsimile (703) 602-0350. Please cite DFARS Case 2005-D007.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 70 FR 52032 on September 1, 2005,
to implement Section 1092 of the National Defense Authorization Act for
Fiscal Year 2005 (Pub. L. 108-375). Section 1092 requires DoD to
prescribe policies to ensure that DoD contractor personnel interacting
with detainees receive training regarding the international obligations
and laws of the United States applicable to the detention of personnel.
One industry association submitted comments on the interim rule. A
discussion of the comments is provided below.
1. Comment: Definitions
The respondent recommended addition of a definition of the term
``personnel interacting with detainees'' in section 237.171-2,
consistent with the definition in the contract clause.
DoD Response. Section 237.171-2 of the final rule includes a
definition of ``personnel interacting with detainees'' as well as a
definition of ``combatant commander,'' since that term is also used
within 237.171.
2. Comment: Policy
a. Clarification of the Role of Combatant Commander. The respondent
recommended clarification of four separate and distinct
responsibilities of the combatant commander: Develop the training
curriculum; determine and provide an appropriate place for the
training; conduct the training; and issue a training receipt. The
respondent provided a proposed rewrite of 237.171-3(a) and (b) to
address these responsibilities.
DoD Response. DoD has revised 237.171-3(a) and (b) to clarify
responsibilities as follows:
Paragraph (a) introductory text--DoD has replaced the
phrase ``individuals detained by DoD on behalf of the U.S. Government''
with the word ``detainees'' for consistency with the terminology used
throughout the rule. DoD has not adopted the respondent's
recommendation to further amend 237.171-3 to more specifically describe
the contracts that are subject to the rule's requirements, since the
clause prescription at 237.171-4 adequately describes the criteria for
application of the policy.
Paragraph (a)(1)--DoD has clarified that the training will
be provided by the Government. DoD has not adopted the respondent's
recommendation to state that the training will be conducted by U.S.
Government personnel, since the training might be conducted by a
Government contractor.
Paragraph (a)(2)--DoD has revised the requirement for
contractor personnel to ``Acknowledge receipt of the training'' to a
requirement for contractor personnel to ``Provide a copy of the
training receipt document to the contractor.'' Although the law
requires that the Commander of detention facilities provide training
and documented receipt of receiving training, it also requires that
each contract in which contractor personnel will interact with
detainees include a requirement that such contractor personnel have
received training, and documented acknowledgement of receiving
training. Taken alone, this second requirement might be interpreted to
mean that the contractor personnel must document acknowledgement of
receiving training. It is more reasonable, in view of the first
requirement, to interpret the law to mean that the contractor personnel
must receive the documented acknowledgement of receiving training from
the training provider. The receipt generated may not require any
acknowledgement as a condition for issuance. The receipt itself
represents an acknowledgement that the training was received. Further,
it may not be U.S. Government personnel that issue the receipt. For
example, the receipt might be automatically issued upon completion of a
computer-hosted training module.
Paragraph (b)--DoD has revised paragraph (b) to clarify
that the combatant commander will ``arrange for'' the training (rather
than ``provide'' the training). The combatant commander most likely
will not be the specific person performing the training. DoD considers
it unnecessary for the DFARS to specify that the training is to be
determined appropriate by the combatant commander or that the combatant
commander determines the geographic location of the training. This is
implied in the concept of Government-provided training that is arranged
by the combatant commander. Furthermore, location may not be an issue,
as in the case of computer-based training.
b. PGI Guidance/DoD Policy Memorandum. The respondent stated that
the interim rule directed the reader to PGI 237.171-3(c) for additional
guidance, but does not actually provide guidance, only a copy of the
memorandum issued by the Secretary of Defense. The respondent
recommended inclusion of specific relevant guidance or deletion of the
reference.
DoD Response. The reference at DFARS 237.171-3(c) has been deleted.
However, the policy memorandum has been retained in PGI for
informational purposes.
c. Standardized Training. The respondent recommended that the final
rule, PGI, or additional departmental guidance provide standardized
training, based on the belief that there is a core of training that
should be the same everywhere, with the addition of appropriate
training to accommodate variations in religious, social, and national
customs applicable to a particular facility or detainee.
DoD Response. It is outside the scope of authority of the DFARS and
PGI to require a common core of training. The Secretary of Defense has
assigned the responsibility for development of training to the
combatant commanders. Furthermore, it may be impracticable to require
combatant commanders to have identical, standardized training. Each
combatant commander should have the prerogative and flexibility to
decide what training is appropriate for the command.
[[Page 53048]]
d. Standardized Format for Training Certificates. The respondent
recommended that the final rule or PGI provide a standardized format
for the training certificate and a standard form for acknowledgement
(not a certification).
DoD Response. DoD does not agree that a standard training
certificate is necessary, since preparation of a certificate should be
a relatively simple task to be accomplished in conjunction with
development of the appropriate training. Neither the interim nor the
final DFARS rule includes a requirement for certification by contractor
employees, and the final rule excludes the interim rule requirement for
acknowledgement by contractor personnel. Contractor personnel need only
provide the training receipt to the contractor.
e. Transferability of Training. The respondent recommended that the
final rule provide policy guidance that would permit a geographic
combatant commander to waive the training requirement for any
contractor employee who has already received appropriate training
within the past year, including policy addressing the transferability
of training, even if at a different facility within a single combatant
commander's area of responsibility or when there may be a different
combatant commander. This is intended to facilitate cross-utilization
of contractor employees.
DoD Response. If the contractor employee has documented receipt of
training within the past year, it is at the discretion of the combatant
commander whether this training is adequate for the particular area and
facility to which the employee has transferred. The transferability of
training could vary significantly, depending on individual
circumstances.
f. Allowability of Costs. The respondent recommended that the final
rule address the policy that contractor and employee expenses incurred
in making the employee available for and taking the Government-provided
training is an allowable cost on cost-reimbursement contracts.
DoD Response. It is unnecessary to specifically identify these
contractor training costs as allowable. FAR Part 31 adequately sets
forth the cost principles on allowability of costs.
3. Contract Clause
a. Responsibilities of Combatant Commander. The respondent had the
same concerns regarding clarification of the responsibilities of the
combatant commander that have been addressed in the discussion of
Comment 2.a. above.
b. Arranging Training. The respondent was concerned that the
ability to execute this contractual obligation is outside the control
of the contractor, and recommended that the contracting officer be
required to arrange the training.
DoD Response. The combatant commander will arrange for the training
to be provided, and the contractor must make its employees available to
receive the training. It would be impractical for the contracting
officer to become involved in scheduling the required training. For
efficiency, this responsibility should be shared by the combatant
commander organization and the contractor.
c. Acknowledging Training. The respondent considered the
requirement for the contractor to arrange for its personnel to
acknowledge receipt of the training to be unclear and confusing, was
concerned that the text at DFARS 237.171-3 imposes the acknowledgement
requirement only on the employee, and recommended that DoD rely on
company practices to get the information to the contractor.
DoD Response. DoD has removed the acknowledgment requirement from
the final rule and has replaced it with a requirement for contractor
retention of the training receipt for a specified period. It is the
responsibility of the contractor to impose the requirement on its
employees and to implement procedures for ensuring that training
receipts are provided by employees.
d. Record Retention. The respondent did not object to a record
retention requirement, but considered that the requirement should be
imposed only on the contractor, not on the contractor employee. In
addition, the respondent recommended an alternative record retention
period of 3 years after all work on the contract has been performed.
DoD Response. DoD has included the recommended changes in the final
rule.
e. Flowdown. The respondent had concerns about requirements for
flowdown of the clause to subcontracts, and the responsibility of the
prime contractor versus the responsibility of the subcontractor.
DoD Response. The language in paragraph (c) of the contract clause
is the standard language used in FAR/DFARS clauses requiring flowdown
to subcontractors. Paragraph (c) requires the contractor to include the
``substance'' of the clause in its subcontracts. This wording allows
the contractor to adjust the terminology appropriately to reflect the
relationship between the contractor and its subcontractor. The clause
does not require that subcontractors flow the paperwork up to the prime
contractor.
f. Waiver Authority. The respondent recommended a policy that
provides temporary waiver authority to the contracting officer or the
geographic combatant commander if training cannot be developed in a
timely manner in advance of contractor personnel interacting with
detainees, in order to meet contract requirements.
DoD Response. The law does not require advance training, but it
should be strongly encouraged. Therefore, DoD has amended paragraph
(b)(2)(i) of the contract clause to require training ``as soon as
possible if, for compelling reasons, the Contracting Officer authorizes
interaction with detainees prior to receipt of such training.''
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. 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 the Government will provide the training required by the rule.
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.
List of Subjects in 48 CFR Parts 237 and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Accordingly, the interim rule amending 48 CFR Parts 237 and 252, which
was published at 70 FR 52032 on September 1, 2005, is adopted as a
final rule with the following changes:
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1. The authority citation for 48 CFR Parts 237 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 237--SERVICE CONTRACTING
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2. Sections 237.171-2 and 237.171-3 are revised to read as follows:
237.171-2 Definition.
Combatant commander, detainee, and personnel interacting with
detainees, as used in this section, are defined in the clause at
252.237-7019, Training for
[[Page 53049]]
Contractor Personnel Interacting with Detainees.
237.171-3 Policy.
(a) Each DoD contract in which contractor personnel, in the course
of their duties, interact with detainees shall include a requirement
that such contractor personnel--
(1) Receive Government-provided training regarding the
international obligations and laws of the United States applicable to
the detention of personnel, including the Geneva Conventions; and
(2) Provide a copy of the training receipt document to the
contractor.
(b) The combatant commander responsible for the area where the
detention or interrogation facility is located will arrange for the
training and a training receipt document to be provided to contractor
personnel. For information on combatant commander geographic areas of
responsibility and point of contact information for each command, see
PGI 237.171-3(b).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
0
3. Section 252.212-7001 is amended as follows:
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a. By revising the clause date to read ``(SEP 2006)''; and
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b. In paragraphs (b)(18) and (c)(2) by removing ``(SEP 2005)'' and
adding in its place ``(SEP 2006)''.
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4. Section 252.237-7019 is amended by revising the clause date and
paragraphs (b) and (c) to read as follows:
252.237-7019 Training for Contractor Personnel Interacting with
Detainees.
As prescribed in 237.171-4, use the following clause:
Training For Contractor Personnel Interacting With Detainees (SEP 2006)
* * * * *
(b) Training requirement. This clause implements Section 1092 of
the National Defense Authorization Act for Fiscal Year 2005 (Pub. L.
108-375).
(1) The Combatant Commander responsible for the area where a
detention or interrogation facility is located will arrange for
training to be provided to contractor personnel interacting with
detainees. The training will address the international obligations and
laws of the United States applicable to the detention of personnel,
including the Geneva Conventions. The Combatant Commander will arrange
for a training receipt document to be provided to personnel who have
completed the training.
(2)(i) The Contractor shall arrange for its personnel interacting
with detainees to--
(A) Receive the training specified in paragraph (b)(1) of this
clause--
(1) Prior to interacting with detainees, or as soon as possible if,
for compelling reasons, the Contracting Officer authorizes interaction
with detainees prior to receipt of such training; and
(2) Annually thereafter; and
(B) Provide a copy of the training receipt document specified in
paragraph (b)(1) of this clause to the Contractor for retention.
(ii) To make these arrangements, the following points of contact
apply:
[Contracting Officer to insert applicable point of contact
information cited in PGI 237.171-3(b).]
(3) The Contractor shall retain a copy of the training receipt
document(s) provided in accordance with paragraphs (b)(1) and (2) of
this clause until the contract is closed, or 3 years after all work
required by the contract has been completed and accepted by the
Government, whichever is sooner.
(c) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (c), in all subcontracts that may
require subcontractor personnel to interact with detainees in the
course of their duties.
* * * * *
[FR Doc. E6-14897 Filed 9-7-06; 8:45 am]
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