[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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