[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Rules and Regulations]
[Pages 44282-44283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18381]
[[Page 44282]]
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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: Final rule.
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SUMMARY: The Department of Defense (DoD) is adopting as final, without
change, an interim rule amending the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement section 1038 of the National
Defense Authorization Act (NDAA) for Fiscal Year 2010. Section 1038
prohibits contractor personnel from interrogating detainees under the
control of DoD.
DATES: Effective Date: July 25, 2011.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, 703-602-1302.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule at 75 FR 67632 on November 3, 2010,
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, with limited redelegation
authority, if determined necessary to the national security interests
of the United States. The interim rule added coverage at DFARS 237.173
and a new clause at DFARS 252.237-7010 that prescribes policies
prohibiting interrogation of detainees by contractor personnel, as
required by section 1038 of the NDAA for Fiscal Year 2010. The DFARS
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 the contractor personnel 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.
The public comment period closed on January 3, 2011. Three
respondents provided comments on the interim rule.
II. Discussion and Analysis
A summary of the comments received and their analysis grouped by
category follows.
A. Eliminate Waiver Authority
Comment: Three respondents provided comments supporting the idea
that establishing an effective system of managing and overseeing
contractors supporting interrogations must be accorded the highest
priority. However, the respondents did not support the provision at
DFARS 237.173-4 that allows the Secretary of Defense to waive the
prohibition on contractor interrogations for up to 60 days on the
grounds of national security interests. The respondents considered the
function to be inherently governmental, and one that should never be
performed by contractor personnel.
Response: Section 1038 of the statute specifically provides the
Secretary of Defense authority to waive, for a limited time, the
prohibition on interrogation of detainees by contractor personnel.
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, provided that 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 DoD policy. Such
personnel are subject to the same laws, rules, procedures, and policies
pertaining to detainee operations and interrogations as those that
apply to Government personnel in such positions in such interrogations
(DFARS 237.173-3). Accordingly, no change has been made to the DFARS in
response to these comments.
B. Penalties and Compliance
Comment: One respondent stated that DoD must prescribe a clear set
of penalties for any violation of the new policy and recommended civil
and criminal fines, imprisonment, the withholding of contract award
fees, contract termination, and/or suspension and debarment.
Response: DoD has no authority to write civil or criminal penalties
into the DFARS. Contracting officers have considerable discretion to
exercise the usual broad range of contractual remedies, e.g.,
withholding contract award fees, contract termination, or suspension
and/or debarment. Accordingly, no change has been made to the DFARS in
response to this comment.
Comment: One respondent expressed concern that there would be
attempts to evade the new policy by transferring detainees to the
custody of non-DoD agencies or foreign governments that are not
governed by the DFARS limitations. The respondent also suggested that
similar coverage at FAR 7.503(c)(8) should be considered.
Response: The acquisition regulations are written based on the
presumption that Government employees act in good faith and in
accordance with acquisition regulations and the law. Further, since the
coverage at FAR 7.503(c)(8) lists ``the direction and control of
intelligence and counter-intelligence operations'' as an example of an
inherently governmental function, there would be no value added by
reiterating this language in the DFARS.
C. Clarity of Definitions
Comment: One respondent recommended clarification of the definition
of ``detainee'' in 237.173-2, which the respondent considered to be
silent on the matter of whether the term ``hostilities'' (which is
included in the definition of ``detainee'') includes situations in
which there has not been a formally declared war (e.g., the detainee is
classified as an unlawful combatant rather than a prisoner of war). The
respondent noted that the definition's qualifier, ``this includes but
is not limited to,'' suggests a broad definition for ``hostilities.''
Response: The term ``detainee'' is defined at 237.173-2 as ``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.'' This definition was derived from the
``detainee'' definition in the governing directive,
[[Page 44283]]
DoDI 2310.01E, The Department of Defense Detainee Program, dated
September 5, 2006. Paragraph 2.2 of the directive notes ``This
Directive applies during all armed conflicts, however such conflicts
are characterized, and in all other military operations.'' In addition,
paragraph E.2.1. of DoDI 2310.01E notes that the definition of
``detainee'' includes ``unlawful enemy combatants.'' Accordingly, DoD
has determined that clarification is not necessary, and no change has
been made to the DFARS definition in response to this comment.
Comment: One respondent recommended clarifying the definition of
``interrogation of detainees'' in 237.173-2 by adding the same
qualifer, i.e., ``this includes, but is not limited to,'' as is found
in the definition of ``detainee.'' The respondent stated that a
difference between the two definitions could lead to confusion over
whether this includes any other sort of non-``systematic,'' ``formal,''
or ``official'' process of ``questioning,'' or questioning not done
``for the purpose of obtaining reliable information to satisfy foreign
intelligence collection requirements'' (see 237.173-2).
Response: The definition of ``interrogation of detainees'' was
derived from the definition for ``intelligence interrogations'' in DoDD
3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and
Tactical Questioning. This directive consolidates existing DoD
policies, including the requirement for humane treatment during all
intelligence interrogations, and speaks of interrogations exlusively in
terms of the purpose of ``obtaining reliable information to satisfy
foreign intelligence collection requirements.'' Accordingly, any
questioning done for a purpose other than ``obtaining reliable
information to satisfy foreign intelligence collection requirements''
is outside the scope of allowable activities under DoD policy.
Accordingly, no change has been made to the DFARS definition in
response to this comment.
D. Prohibition on Specific Type of Torture
Comment: One respondent proposed that water torture be banned. The
respondent also proposed to make the Federal Government responsible
when violations of human rights occur and recommended banning all
torture and procedures that allow torture to occur.
Response: As noted previously, DoDD 3115.09 consolidates existing
DoD policies, including the requirement for humane treatment during all
intelligence interrogations for the purpose of gaining intelligence
from captured or detained personnel. It is DoD policy that no person in
the custody or physical control of DoD or detained in a DoD facility
shall be subject to cruel, inhumane, or degrading treatment or
punishment as defined in Title XIV of Public Law 109-163, also known as
``The Detainee Treatment Act of 2005.'' Accordingly, no change has been
made to the DFARS in response to this comment.
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 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.
This is a significant regulatory action and, therefore, was 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
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this rule. DoD prepared a final regulatory flexibility analysis (FRFA)
that 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 DoD, or
otherwise under detention in a DoD facility in connection with
hostilities, may be interrogated by contractor personnel. It also
allows the Secretary of Defense to waive the prohibition for a limited
period of time, with limited redelegation authority, if determined
necessary to the national security interests of the United States.
In Fiscal Year 2009, the latest year for which complete information
is available, 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 small
business concerns.
This rule only prescribes policies that prohibit interrogation of
detainees by contractor personnel. DoD anticipates that there will be
no additional costs imposed on small businesses.
There is no reporting or recordkeeping requirement established by
this rule. This rule does not duplicate, overlap, or conflict with any
other Federal rules.
Interested parties may obtain a copy of the FRFA from the point of
contact named herein. A copy of the FRFA has been submitted to the
Chief Counsel for Advocacy of the Small Business Administration.
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 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 237 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Interim Rule Adopted as Final Without Change
0
Accordingly, the interim rule amending 48 CFR parts 237 and 252, which
was published at 75 FR 67632 on November 3, 2010, is adopted as a final
rule without change.
[FR Doc. 2011-18381 Filed 7-22-11; 8:45 am]
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