[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Rules and Regulations]
[Pages 67632-67634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27780]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 237 and 252
RIN 0750-AG88
Defense Federal Acquisition Regulation Supplement; Prohibition on
Interrogation of Detainees by Contractor Personnel (DFARS Case 2010-
D027)
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 section 1038 of
the National Defense Authorization Act for Fiscal Year 2010 (Pub. L.
111-84). Section 1038 prohibits contractor personnel from interrogating
detainees under the control of the Department of Defense. It also
allows the Secretary of Defense to waive the prohibition for a limited
period of time, if determined necessary to the national security
interests of the United States.
DATES: Effective Date: November 3, 2010. Comment Date: Comments on the
interim rule should be submitted to the address shown below on or
before January 3, 2011, to be considered in the formation of the final
rule.
ADDRESSES: Respondents may submit comments, identified by DFARS Case
2010-D027, using any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``DFARS Case
2010-D027'' under the heading ``Enter keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``DFARS Case 20109-D027.'' Follow the instructions provided at the
``Submit a Comment'' screen. Please include your name, company name (if
any), and ``DFARS Case 2010-D027'' on your attached document.
E-mail: [email protected]. Include DFARS Case 2010-D027 in the
subject line of the message.
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. To
confirm receipt of your comment(s), please check http://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. Julian E. Thrash, 703-602-0310.
Please cite DFARS Case 2010-D027.
SUPPLEMENTARY INFORMATION:
I. Background
Section 1038 of the National Defense Authorization Act for Fiscal
Year 2010 (Pub. L. 111-84) prohibits the interrogation of detainees by
contractor personnel. DoD is amending the DFARS at subpart 237.1,
Service Contracts--General, to add DFARS 237.173, Prohibition on
Interrogation of Detainees by Contractor Personnel, adding a DFARS
clause at 252.237-7010, Prohibition on Interrogation of Detainees by
Contractor Personnel; adding this new clause to paragraphs (b) and (c)
of the clause at 252.212-7001, Contract Terms and Conditions Required
to Implement Statutes or Executive Orders Applicable to Defense
Acquisitions of Commercial Items; and to paragraph (c) of the clause at
252.244-7000, Subcontracts for Commercial Items and Commercial
Components (DoD Contracts).
DFARS language at 237.173 prescribes policies that prohibit
interrogation of detainees by contractor personnel, as required by
section 1038 of the National Defense Authorization Act for Fiscal Year
2010 (Pub. L. 111-84). It also covers permissible support roles for
contractors by providing that contractor personnel with proper training
and security clearances may be used as linguists, interpreters, report
writers, information technology technicians, and other employees
filling ancillary positions, including as trainers of and advisors to
interrogations, if they meet the criteria provided by DoD Instruction
1100.22, Policy and Procedures for Determining Workforce Mix (http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf); DoD Directive
2310.01E, The Department of Defense Detainee Program (http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf); and DoD Directive
3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and
Tactical Questioning (http://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf).
Furthermore, the statute allows the Secretary of Defense to waive
for a limited period of time the prohibition on interrogation of
detainees by contractor personnel, if determined necessary to the
national security interests of the United States.
II. Executive Order 12866
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 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 affects companies that provide intelligence-related services by
precluding them from interrogating detainees. However, an initial
regulatory flexibility analysis has been prepared and is summarized as
follows:
The objective of this rule is to implement section 1038 of the
National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-
84). This statute provides that no enemy prisoner of war, civilian
internee, retained personnel, other detainee, or any other individual
who is in the custody or under the effective control of the DoD, or
otherwise under detention in a DoD facility in connection with
hostilities, may be interrogated by contractor personnel. In fiscal
year 2009, DoD awarded contracts for intelligence-related requirements
to only 255 unique Data Universal Numbering System (DUNS) numbers. Of
this total, there were 143 unique DUNS numbers for
[[Page 67633]]
small business concerns. This rule only prescribes polices that
prohibit interrogation of detainees by contractor personnel. DoD
anticipates that there will be no additional costs imposed on small
business. There is no reporting or recordkeeping requirement
established by this rule. This rule does not duplicate, overlap, or
conflict with any other Federal rules. DoD anticipates that there will
be limited, if any, additional costs imposed on small business.
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-D027) in
correspondence.
IV. 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.
V. 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). This interim rule is
necessary to implement section 1038 of the National Defense
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), which
restricts the unauthorized interrogation of detainees by contractor
personnel. The U.S. military continues to make extraordinary efforts in
Iraq and Afghanistan to ensure mission success. Interrogation of
detainees is a key tool it uses to protect U.S. forces, host nation
forces and citizens, and provide support for the governments of Iraq
and Afghanistan during a critical period in their existence. It is
imperative that contractor activities in support of these efforts
comply with the law and do not detract from the commander's intent in
order to contribute to mission success. A lack of compliance affects
the perception of both local citizens and the international community,
which would provide support to our adversaries that will adversely
impact the U.S. Government's efforts. Immediate implementation of this
statute is necessary to preclude a contracting officer from
inadvertently awarding a contract that allows for the interrogation of
detainees by contractor personnel.
DoD will consider public comments received in response to this
interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 237 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 237 and 252 are amended as follows:
0
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
0
2. Sections 237.173 through 237.173-5 are added to subpart 237.1 to
read as follows:
237.173 Prohibition on interrogation of detainees by contractor
personnel.
237.173-1 Scope.
This section prescribes policies that prohibit interrogation of
detainees by contractor personnel, as required by section 1038 of the
Fiscal Year 2010 National Defense Authorization Act (Pub. L. 111-84).
237.173-2 Definitions.
As used in this subpart--
Detainee means any person captured, detained, held, or otherwise
under the effective control of DoD personnel (military or civilian) in
connection with hostilities. This includes, but is not limited to,
enemy prisoners of war, civilian internees, and retained personnel.
This does not include DoD personnel or DoD contractor personnel being
held for law enforcement purposes.
Interrogation of detainees means a systematic process of formally
and officially questioning a detainee for the purpose of obtaining
reliable information to satisfy foreign intelligence collection
requirements.
237.173-3 Policy.
(a) No detainee may be interrogated by contractor personnel.
(b) Contractor personnel with proper training and security
clearances may be used as linguists, interpreters, report writers,
information technology technicians, and other employees filling
ancillary positions, including as trainers of and advisors to
interrogators, in interrogations of detainees if--
(1) Such personnel are subject to the same laws, rules, procedures,
and policies (including DoD Instruction 1100.22, Policy and Procedures
for Determining Workforce Mix (http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf); DoD Directive 2310.01E, The Department of
Defense Detainee Program (http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf); and DoD Directive 3115.09, DoD Intelligence
Interrogations, Detainee Debriefings, and Tactical Questioning (http://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf)); pertaining to
detainee operations and interrogations as those that apply to
Government personnel in such positions in such interrogations; and
(2) Appropriately qualified and trained DoD personnel (military or
civilian) are available to oversee the contractor's performance and to
ensure that contractor personnel do not perform activities that are
prohibited under this section.
237.173-4 Waiver.
The Secretary of Defense may waive the prohibition in 237.173-3(a)
for a period of 60 days, if the Secretary determines such a waiver is
vital to the national security interests of the United States. The
Secretary may renew a waiver issued pursuant to this paragraph for an
additional 30-day period, if the Secretary determines that such a
renewal is vital to the national security interests of the United
States. Not later than five days after issuance of the waiver, the
Secretary shall submit written notification to Congress. See specific
waiver procedures at DoDI 1100.22.
237.173-5 Contract clause.
Insert the clause at 252.237-7010, Prohibition on Interrogation of
Detainees by Contractor Personnel, in solicitations and contracts for
the provision of services.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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3. Section 252.212-7001 is amended as follows:
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a. Revise the clause date;
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b. Redesignate paragraphs (b)(21) through (b)(25) as paragraphs (b)(22)
through (b)(26), respectively.
0
c. Add new paragraph (b)(21);
0
d. Redesignate paragraphs (c)(2) through (c)(4) as paragraphs (c)(3)
through (c)(5), respectively; and
0
e. Add new paragraph (c)(2).
[[Page 67634]]
252.212-7001 Contract terms and conditions required to implement
statutes or Executive Orders applicable to Defense acquisitions of
commercial items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS APPLICABLE TO DEFENSE ACQUISITIONS OF COMMERCIAL ITEMS
(NOV 2010)
* * * * *
(b) * * *
(21) ---- 252.237-7010, Prohibition on Interrogation of
Detainees by Contractor Personnel (NOV 2010) (Section 1038 of Pub.
L. 111-84).
* * * * *
(c) * * *
(2) 252.237-7010, Prohibition on Interrogation of Detainees by
Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84).
* * * * *
0
4. Section 252.237-7010 is added to read as follows:
252.237-7010 Prohibition on interrogation of detainees by contractor
personnel.
As prescribed in 237.173-5, use the following clause:
PROHIBITION ON INTERROGATION OF DETAINEES BY CONTRACTOR PERSONNEL (NOV
2010)
(a) Definitions. As used in this clause--
Detainee means any person captured, detained, held, or otherwise
under the effective control of DoD personnel (military or civilian)
in connection with hostilities. This includes, but is not limited
to, enemy prisoners of war, civilian internees, and retained
personnel. This does not include DoD personnel or DoD contractor
personnel being held for law enforcement purposes.
Interrogation of detainees means a systematic process of
formally and officially questioning a detainee for the purpose of
obtaining reliable information to satisfy foreign intelligence
collection requirements.
(b) Contractor personnel shall not interrogate detainees.
(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.
(End of clause)
0
5. Section 252.244-7000 is amended as follows:
0
a. Revise the clause date;
0
b. Redesignate paragraphs (c) through (e) as paragraphs (d) through
(f), respectively; and
0
c. Add new paragraph (c).
252.244-7000 Subcontracts for Commercial Items and Commercial
Components (DoD Contracts).
* * * * *
SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (DOD
CONTRACTS) (NOV 2010)
* * * * *
(c) 252.237-7010 Prohibition on Interrogation of Detainees by
Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84)].
* * * * *
[FR Doc. 2010-27780 Filed 11-2-10; 8:45 am]
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