[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Rules and Regulations]
[Pages 67632-67634]
From the Federal Register Online via the Government Printing 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: dfars@osd.mil. 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

0
3. Section 252.212-7001 is amended as follows:
0
a. Revise the clause date;
0
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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