Defense Federal Acquisition Regulation Supplement; DoD Law of War Program (DFARS Case 2006-D035), 2418-2421 [E9-680]
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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
countries bordering the Arabian Gulf,
see 236.273(a).
(b) For restriction on acquisition of
steel for use in military construction
projects, see 236.274.
PART 236—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
3. Section 236.274 is added to read as
follows:
■
236.274 Restriction on acquisition of steel
for use in military construction projects.
In accordance with section 108 of the
Military Construction and Veterans
Affairs Appropriations Act, 2009 (Pub.
L. 110–329, Division E), do not acquire,
or allow a contractor to acquire, steel for
any construction project or activity for
which American steel producers,
fabricators, or manufacturers have been
denied the opportunity to compete for
such acquisition of steel.
■ 4. Section 236.570 is amended as
follows:
■ a. By redesignating paragraph (d) as
paragraph (e); and
■ b. By adding a new paragraph (d) to
read as follows:
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(d) Use the clause at 252.236–7013,
Requirement for Competition
Opportunity for American Steel
Producers, Fabricators, and
Manufacturers, in solicitations and
contracts that—
(1) Use funds appropriated by Title I
of the Military Construction and
Veterans Affairs Appropriations Act,
2009 (Pub. L. 110–329, Division E); and
(2) May require the acquisition of
steel as a construction material.
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PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
5. Section 252.236–7013 is added to
read as follows:
252.236–7013 Requirement for
competition opportunity for american steel
producers, fabricators, and manufacturers.
As prescribed in 236.570(d), use the
following clause:
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REQUIREMENT FOR COMPETITION
OPPORTUNITY FOR AMERICAN
STEEL PRODUCERS, FABRICATORS,
AND MANUFACTURERS (JAN 2009)
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252.244–7000 Subcontracts for
commercial items and commercial
components (DOD contracts).
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SUBCONTRACTS FOR COMMERCIAL
ITEMS AND COMMERCIAL
COMPONENTS (DOD CONTRACTS)
(JAN 2009)
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(b) 252.236–7013 Requirement for
Competition Opportunity for American Steel
Producers, Fabricators, and Manufacturers
(Pub. L. 110–329, Division E, Section 108).
*
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[FR Doc. E9–677 Filed 1–14–09; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 252
RIN 0750–AF82
Defense Federal Acquisition
Regulation Supplement; DoD Law of
War Program (DFARS Case 2006–
D035)
■
VerDate Nov<24>2008
(End of clause)
■ 6. Section 252.244–7000 is amended
as follows:
■ a. By revising the clause date;
■ b. By redesignating paragraphs (b)
through (d) as paragraphs (c) through (e)
respectively; and
■ c. By adding a new paragraph (b) to
read as follows:
*
236.570 Additional provisions and
clauses.
(a) Definition. Construction material, as
used in this clause, means an article,
material, or supply brought to the
construction site by the Contractor or a
subcontractor for incorporation into the
building or work.
(b) The Contractor shall provide American
steel producers, fabricators, and
manufacturers the opportunity to compete
when acquiring steel as a construction
material (e.g., steel beams, rods, cables,
plates).
(c) The Contractor shall insert the
substance of this clause, including this
paragraph (c), in any subcontract that
involves the acquisition of steel as a
construction material.
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to address requirements for
DoD contractors to institute effective
programs to prevent violations of the
law of war by contractor personnel
authorized to accompany U.S. Armed
Forces deployed outside the United
States.
DATES:
PO 00000
Effective Date: January 15, 2009.
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FOR FURTHER INFORMATION CONTACT: Ms.
Angie Sawyer, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3D139, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone 703–602–8384;
facsimile 703–602–7887. Please cite
DFARS Case 2006–D035.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the clause at
DFARS 252.225–7040, Contractor
Personnel Authorized To Accompany
U.S. Armed Forces Deployed Outside
the United States, to address
requirements for DoD contractors to
institute effective programs to prevent
law of war violations by contractor
personnel. The rule requires that
deploying contractor personnel receive
appropriate law of war training, and that
contractor personnel report any
violations of the law of war to the
appropriate authorities. The DFARS rule
is consistent with the policy in DoD
Directive 2311.01E, DoD Law of War
Program, dated May 9, 2006.
DoD published a proposed rule at 73
FR 1853 on January 10, 2008. Four
sources submitted comments on the
proposed rule. A discussion of the
comments is provided below.
1. Comment: The limitation on the
use of Web-based basic law of war
training is overly restrictive (i.e., must
be approved by the contracting officer).
The training should be available at any
time for completion via a Web-based
source to prevent delays in meeting
training requirements.
DoD Response: Deployed contractor
personnel must process through a
deployment center, in accordance with
paragraph (f) of the clause at DFARS
252.225–7040. DoD has provided
training materials to all the predeployment training centers as the
primary method of meeting basic
training requirements. Web-based
training is intended to substitute for live
pre-deployment training only when
determined to be appropriate by the
contracting officer.
2. Comment: To ensure the
availability of advanced training when
needed, advanced training should be
handled as an in-processing matter and
should be provided at an in-theater/incountry central processing center for
newly arriving contractor personnel.
DoD Response: Advanced training
could be provided at in-processing, as
long as the Judge Advocates or other
Government counsel are involved. The
DFARS rule has been amended to
provide additional flexibility in meeting
advanced law of war training
requirements. However, government
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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
counsel must review advanced training
content in all cases to ensure that it is
commensurate with the duties and
responsibilities of the personnel to be
trained.
3. Comment: DoD should develop
standard training content to ensure
consistency and accuracy.
DoD Response: DoD has developed
standard basic training for
dissemination, as described in the
response to comment 1 above. However,
for advanced training, different missions
require different emphasis, making
complete standardization infeasible.
4. Comment: This rule will have cost
impacts associated with
implementation, especially if the
contractor loses time while waiting for
advanced law of war training.
Contractors should not be held
accountable for compliance with law of
war training requirements until such
time as DoD has its training materials
deployed.
DoD Response: DoD has already
deployed the basic training module to
the military training centers, and online
training is also available for use when
deemed appropriate by the contracting
officer. The DFARS rule has been
amended to permit flexibility in meeting
advanced law of war training
requirements, provided the training
content is coordinated with government
counsel.
5. Comment: The Rules for the Use of
Force (RUF) and the Uniform Code of
Military Justice (UCMJ) should be
addressed as part of law of war training.
DoD Response: RUF training is
already required by the clause at DFARS
252.225–7040. The basic and advanced
training on the law of war will
complement this training by addressing
law of war issues pertaining to the use
of force. RUF training should be
provided by the contractor in
accordance with the cognizant
Commander’s RUF guidance. UCMJ
criminal liability for law of war
violations is included in the training
program. However, the UCMJ applies to
contractor employees, along with the
Military Extraterritorial Jurisdiction Act,
in a broader context than law of war
violations. The contractor is responsible
for ensuring that its employees are
properly trained on all aspects of their
criminal and civil liability.
6. Comment: The word ‘‘prevent’’
should be changed to the phrase
‘‘minimize the possibility of,’’ in the
context of requiring contractors to
implement a program to prevent law of
war violations.
DoD Response: The word ‘‘prevent’’
is consistent with both DoD Directive
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16:54 Jan 14, 2009
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2311.01E and treaty obligations under
international law.
7. Comment: What metrics will be
used to determine if a contractor has an
effective training program to prevent
law of war violations?
DoD Response: The goal is to prevent
law of war violations. Contractors
should adopt training, control measures,
and reporting procedures to that end.
Basic training is Government resourced.
Advanced training will be provided as
specified in the contract.
8. Comment: The rule will impose a
mandatory requirement on contractor
personnel to report violations directly to
Commanders, bypassing other
complaint channels. Such reporting by
individuals should be optional.
DoD Response: Contractor reporting
of law of war violations is required by
DoD Directive 2311.01E. The clause at
DFARS 252.225–7040 has been
amended to permit contractor personnel
to report violations to authorities other
than the Combatant Commander.
9. Comment: The requirement for
contractor personnel to report law of
war violations will amount to
unenforceable ‘‘good faith’’ reporting.
Contractors instead should be required
to submit a daily or weekly log of
activity on any violations as a way to
enforce reporting.
DoD Response: DoD does not agree
with the recommended change. Creating
a daily or weekly log would cause an
unnecessary recordkeeping requirement
for contractors.
10. Comment: Requiring reporting by
individuals requires contractor
personnel to make legal judgments
about the conduct of other contractor
personnel and about the credibility of
information that they may not be
equipped to make.
DoD Response: DoD does not agree
that this requirement calls for contractor
personnel to make legal judgments. The
basic law of war training is designed to
educate contractor personnel on the law
of war and on how to recognize
suspected law of war violations. The
legal analysis and credibility
determinations will be made by the
Commander, with the advice of
Counsel, when deciding to report the
incident to higher headquarters. For
purposes of the DFARS clause,
contractor personnel must report all
suspected law of war violations, not
only those violations that may have
been committed by contractor
personnel.
11. Comment: DoD should stablish an
Office of Primary Responsibility to
assist contractors with law of war
issues.
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DoD Response: DoD does not believe
that establishing an Office of Primary
Responsibility is necessary. Contractors
should follow normal procedures by
requesting any needed clarification from
the contracting officer, who in turn can
request assistance from a Judge
Advocate or other Government counsel.
12. Comment: Paragraph (d) of the
clause at 252.225–7040 should include
a cross-reference to paragraph (a) of the
clause, which defines the law of war.
DoD Response: The cross-reference is
unnecessary. Paragraph (a) of the clause
makes it clear that the definitions in that
paragraph apply wherever the defined
terms are used throughout the clause.
13. Comment: ‘‘Third country
national laws’’ should be removed from
252.225–7040(d)(1)(i).
DoD Response: This change is
outside the scope of this rule, which is
focused on implementing law of war
training in accordance with DoD
Directive 2311.01E.
14. Comment: The Geneva and Hague
Conventions should be specifically
addressed in 252.225–7040(d)(1)(ii), as
they are integral to the law of war.
DoD Response: This level of
specificity should be and is addressed
in basic law of war training and is not
necessary for inclusion in the DFARS
clause.
15. Comment: The rule should
include a requirement for all contractors
to be notified of the Geneva/Hague
status and designation noted on the
letters of agreement.
DoD Response: This requirement
should be handled as part of inprocessing procedures and is not
necessary for inclusion in the DFARS.
16. Comment: At 252.225–
7040(e)(1)(vii)(A), the phrase ‘‘all
deploying personnel’’ should be
replaced with ‘‘all contractors
accompanying armed forces.’’
DoD Response: For consistency with
DoD Directive 2311.01E and the rest of
the clause, the phrase has been changed
to ‘‘Contractor personnel authorized to
accompany U.S. Armed Forces
deployed outside the United States.’’
17. Comment: At 252.225–7040(h)(3),
the phrase ‘‘installation to which they
are assigned’’ should be changed to
‘‘installation where they reside,’’
because contractors are not assigned to
installations.
DoD Response: The phrase
‘‘installation to which they are
assigned’’ has been excluded from the
final rule.
18. Comment: ‘‘Applicable United
States, host country and third country
national laws’’ should be added to
252.225–7040(h)(3)(i).
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DoD Response: This recommended
change is outside the scope of this rule,
which is focused on implementing law
of war training in accordance with DoD
Directive 2311.01E.
19. Comment: At 252.225–
7040(h)(3)(ii), the phrase ‘‘military
operations other than war’’ should be
changed to ‘‘declared contingency
operations’’ to reflect latest terminology.
DoD Response: The phrase has been
revised to read ‘‘during any other
military operations.’’
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 requirement to institute an
effective program to prevent law of war
violations need not be a costly
endeavor, and it can be tailored to the
size of the company. Basic law of war
training will be provided by the
Government. Advanced law of war
training requirements will be specified
in the solicitation and contract to permit
contractors to receive appropriate
reimbursement of any training costs.
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 225 and
252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 225 and 252
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
■
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PART 225—FOREIGN ACQUISITION
[Redesignated as 225.7402–5]
2. Section 225.7402–4 is redesignated
as 225.7402–5.
■
3. A new section 225.7402–4 is added
to read as follows:
■
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16:54 Jan 14, 2009
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Law of war training.
4. Section 252.225–7040 is amended
as follows:
■ a. By revising the introductory text
and the clause date;
■ b. In paragraph (a), by adding, in
alphabetical order, a definition of ‘‘Law
of war’’;
■
PO 00000
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c. By revising paragraph (d) and
paragraph (e)(1) introductory text; and
■ d. By adding paragraphs (e)(1)(vii) and
(h)(3) to read as follows:
■
(a) Basic training. Basic law of war
training is required for all contractor
personnel authorized to accompany U.S.
Armed Forces deployed outside the
United States. The basic training
normally will be provided through a
military-run training center. The
contracting officer may authorize the
use of an alternate basic training source,
provided the servicing DoD legal
advisor concurs with the course content.
An example of an alternate source of
basic training is the Web-based training
provided by the Defense Acquisition
University at https://acc.dau.mil/
CommunityBrowser.aspx?id=18014&
lang=en-US.
(b) Advanced law of war training. (1)
The types of personnel that must obtain
advanced law of war training include
the following:
(i) Private security contractors.
(ii) Security guards in or near areas of
military operations.
(iii) Interrogators, linguists,
interpreters, guards, report writers,
information technology technicians, or
others who will come into contact with
enemy prisoners of war, civilian
internees, retained persons, other
detainees, terrorists, or criminals who
are captured, transferred, confined, or
detained during or in the aftermath of
hostilities.
(iv) Other personnel when deemed
necessary by the contracting officer.
(2) If contractor personnel will be
required to obtain advanced law of war
training, the solicitation and contract
shall specify—
(i) The types of personnel subject to
advanced law of war training
requirements;
(ii) Whether the training will be
provided by the Government or the
contractor;
(iii) If the training will be provided by
the Government, the source of the
training; and
(iv) If the training will be provided by
the contractor, a requirement for
coordination of the content with the
servicing DoD legal advisor to ensure
that training content is commensurate
with the duties and responsibilities of
the personnel to be trained.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
225.7402–4
225.7402–4
252.225–7040 Contractor Personnel
Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States.
As prescribed in 225.7402–5(a), use
the following clause:
CONTRACTOR PERSONNEL
AUTHORIZED TO ACCOMPANY U.S.
ARMED FORCES DEPLOYED OUTSIDE
THE UNITED STATES (JAN 2009)
(a) * * *
Law of war means that part of international
law that regulates the conduct of armed
hostilities. The law of war encompasses all
international law for the conduct of
hostilities binding on the United States or its
individual citizens, including treaties and
international agreements to which the United
States is a party, and applicable customary
international law.
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(d) Compliance with laws and regulations.
(1) The Contractor shall comply with, and
shall ensure that its personnel authorized to
accompany U.S. Armed Forces deployed
outside the United States as specified in
paragraph (b)(1) of this clause are familiar
with and comply with, all applicable—
(i) United States, host country, and third
country national laws;
(ii) Provisions of the law of war, as well as
any other applicable treaties and
international agreements;
(iii) United States regulations, directives,
instructions, policies, and procedures; and
(iv) Orders, directives, and instructions
issued by the Combatant Commander,
including those relating to force protection,
security, health, safety, or relations and
interaction with local nationals.
(2) The Contractor shall institute and
implement an effective program to prevent
violations of the law of war by its employees
and subcontractors, including law of war
training in accordance with paragraph
(e)(1)(vii) of this clause.
(e) Pre-deployment requirements. (1) The
Contractor shall ensure that the following
requirements are met prior to deploying
personnel authorized to accompany U.S.
Armed Forces. Specific requirements for each
category may be specified in the statement of
work or elsewhere in the contract.
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(vii) Personnel have received law of war
training as follows:
(A) Basic training is required for all
Contractor personnel authorized to
accompany U.S. Armed Forces deployed
outside the United States. The basic training
will be provided through—
(1) A military-run training center; or
(2) A Web-based source, if specified in the
contract or approved by the Contracting
Officer.
(B) Advanced training, commensurate with
their duties and responsibilities, may be
required for some Contractor personnel as
specified in the contract.
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(h) * * *
(3) Contractor personnel shall report to the
Combatant Commander or a designee, or
through other channels such as the military
police, a judge advocate, or an inspector
general, any suspected or alleged conduct for
which there is credible information that such
conduct—
(i) Constitutes violation of the law of war;
or
(ii) Occurred during any other military
operations and would constitute a violation
of the law of war if it occurred during an
armed conflict.
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[FR Doc. E9–680 Filed 1–14–09; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
B. Regulatory Flexibility Act
48 CFR Part 237
RIN 0750–AF64
Defense Federal Acquisition
Regulation Supplement; SecurityGuard Functions (DFARS Case 2006–
D050)
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
SUMMARY: DoD has adopted as final,
without change, an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement Section 343 of
the National Defense Authorization Act
for Fiscal Year 2008. Section 343
extended, through September 30, 2012,
the period during which contractor
performance of security-guard functions
at military installations or facilities is
authorized to fulfill additional
requirements resulting from the terrorist
attacks on the United States on
September 11, 2001.
DATES: Effective Date: January 15, 2009.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael Benavides, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3D139, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone 703–602–1302;
facsimile 703–602–7887. Please cite
DFARS Case 2006–D050.
SUPPLEMENTARY INFORMATION:
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343 extended, through September 30,
2012, the period during which
contractor performance of securityguard functions at military installations
or facilities is authorized to fulfill
additional requirements resulting from
the terrorist attacks on the United States
on September 11, 2001, provided the
total number of personnel employed to
perform such functions does not exceed
specified limits.
DoD received no comments on the
interim rule. Therefore, DoD has
adopted the interim rule as a final rule
without change.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
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.
Although the rule may provide
opportunities for small business
concerns to receive contracts for the
performance of security-guard functions
at military installations or facilities, the
economic impact is not expected to be
substantial.
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 Part 237
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Interim Rule Adopted as Final Without
Change
Accordingly, the interim rule
amending 48 CFR part 237, which was
published at 73 FR 53156 on September
15, 2008, is adopted as a final rule
without change.
■
[FR Doc. E9–665 Filed 1–14–09; 8:45 am]
BILLING CODE 5001–08–P
2421
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 252
RIN 0750–AG18
Defense Federal Acquisition
Regulation Supplement; Removal of
North Korea From the List of Terrorist
Countries (DFARS Case 2008–D036)
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to remove North Korea from
the list of terrorist countries subject to
a prohibition on DoD contract awards.
This change is a result of the State
Department’s removal of North Korea
from the list of countries designated as
state sponsors of terrorism.
DATES: Effective Date: January 15, 2009.
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 703–602–7887. Please cite
DFARS Case 2008–D036.
SUPPLEMENTARY INFORMATION:
A. Background
The provision at DFARS 252.209–
7001, Disclosure of Ownership or
Control by the Government of a
Terrorist Country, implements 10 U.S.C.
2327, which prohibits DoD from
entering into a contract with a firm that
is owned or controlled by the
government of a country that has been
determined by the Secretary of State to
repeatedly provide support for acts of
international terrorism. This final rule
removes North Korea from the terrorist
countries listed in the provision at
DFARS 252.209–7001, since the
Secretary of State has removed North
Korea from the list of designated state
sponsors of terrorism.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
A. Background
B. Regulatory Flexibility Act
DoD published an interim rule at 73
FR 53156 on September 15, 2008, to
implement Section 343 of the National
Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110–181). Section
This rule will not have a significant
cost or administrative impact on
contractors or offerors, or a significant
effect beyond the internal operating
procedures of DoD. Therefore,
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]]>Agencies
[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2418-2421]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-680]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
RIN 0750-AF82
Defense Federal Acquisition Regulation Supplement; DoD Law of War
Program (DFARS Case 2006-D035)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD has issued a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to address requirements for
DoD contractors to institute effective programs to prevent violations
of the law of war by contractor personnel authorized to accompany U.S.
Armed Forces deployed outside the United States.
DATES: Effective Date: January 15, 2009.
FOR FURTHER INFORMATION CONTACT: Ms. Angie Sawyer, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone 703-602-8384; facsimile
703-602-7887. Please cite DFARS Case 2006-D035.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the clause at DFARS 252.225-7040, Contractor
Personnel Authorized To Accompany U.S. Armed Forces Deployed Outside
the United States, to address requirements for DoD contractors to
institute effective programs to prevent law of war violations by
contractor personnel. The rule requires that deploying contractor
personnel receive appropriate law of war training, and that contractor
personnel report any violations of the law of war to the appropriate
authorities. The DFARS rule is consistent with the policy in DoD
Directive 2311.01E, DoD Law of War Program, dated May 9, 2006.
DoD published a proposed rule at 73 FR 1853 on January 10, 2008.
Four sources submitted comments on the proposed rule. A discussion of
the comments is provided below.
1. Comment: The limitation on the use of Web-based basic law of war
training is overly restrictive (i.e., must be approved by the
contracting officer). The training should be available at any time for
completion via a Web-based source to prevent delays in meeting training
requirements.
DoD Response: Deployed contractor personnel must process through a
deployment center, in accordance with paragraph (f) of the clause at
DFARS 252.225-7040. DoD has provided training materials to all the pre-
deployment training centers as the primary method of meeting basic
training requirements. Web-based training is intended to substitute for
live pre-deployment training only when determined to be appropriate by
the contracting officer.
2. Comment: To ensure the availability of advanced training when
needed, advanced training should be handled as an in-processing matter
and should be provided at an in-theater/in-country central processing
center for newly arriving contractor personnel.
DoD Response: Advanced training could be provided at in-processing,
as long as the Judge Advocates or other Government counsel are
involved. The DFARS rule has been amended to provide additional
flexibility in meeting advanced law of war training requirements.
However, government
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counsel must review advanced training content in all cases to ensure
that it is commensurate with the duties and responsibilities of the
personnel to be trained.
3. Comment: DoD should develop standard training content to ensure
consistency and accuracy.
DoD Response: DoD has developed standard basic training for
dissemination, as described in the response to comment 1 above.
However, for advanced training, different missions require different
emphasis, making complete standardization infeasible.
4. Comment: This rule will have cost impacts associated with
implementation, especially if the contractor loses time while waiting
for advanced law of war training. Contractors should not be held
accountable for compliance with law of war training requirements until
such time as DoD has its training materials deployed.
DoD Response: DoD has already deployed the basic training module to
the military training centers, and online training is also available
for use when deemed appropriate by the contracting officer. The DFARS
rule has been amended to permit flexibility in meeting advanced law of
war training requirements, provided the training content is coordinated
with government counsel.
5. Comment: The Rules for the Use of Force (RUF) and the Uniform
Code of Military Justice (UCMJ) should be addressed as part of law of
war training.
DoD Response: RUF training is already required by the clause at
DFARS 252.225-7040. The basic and advanced training on the law of war
will complement this training by addressing law of war issues
pertaining to the use of force. RUF training should be provided by the
contractor in accordance with the cognizant Commander's RUF guidance.
UCMJ criminal liability for law of war violations is included in the
training program. However, the UCMJ applies to contractor employees,
along with the Military Extraterritorial Jurisdiction Act, in a broader
context than law of war violations. The contractor is responsible for
ensuring that its employees are properly trained on all aspects of
their criminal and civil liability.
6. Comment: The word ``prevent'' should be changed to the phrase
``minimize the possibility of,'' in the context of requiring
contractors to implement a program to prevent law of war violations.
DoD Response: The word ``prevent'' is consistent with both DoD
Directive 2311.01E and treaty obligations under international law.
7. Comment: What metrics will be used to determine if a contractor
has an effective training program to prevent law of war violations?
DoD Response: The goal is to prevent law of war violations.
Contractors should adopt training, control measures, and reporting
procedures to that end. Basic training is Government resourced.
Advanced training will be provided as specified in the contract.
8. Comment: The rule will impose a mandatory requirement on
contractor personnel to report violations directly to Commanders,
bypassing other complaint channels. Such reporting by individuals
should be optional.
DoD Response: Contractor reporting of law of war violations is
required by DoD Directive 2311.01E. The clause at DFARS 252.225-7040
has been amended to permit contractor personnel to report violations to
authorities other than the Combatant Commander.
9. Comment: The requirement for contractor personnel to report law
of war violations will amount to unenforceable ``good faith''
reporting. Contractors instead should be required to submit a daily or
weekly log of activity on any violations as a way to enforce reporting.
DoD Response: DoD does not agree with the recommended change.
Creating a daily or weekly log would cause an unnecessary recordkeeping
requirement for contractors.
10. Comment: Requiring reporting by individuals requires contractor
personnel to make legal judgments about the conduct of other contractor
personnel and about the credibility of information that they may not be
equipped to make.
DoD Response: DoD does not agree that this requirement calls for
contractor personnel to make legal judgments. The basic law of war
training is designed to educate contractor personnel on the law of war
and on how to recognize suspected law of war violations. The legal
analysis and credibility determinations will be made by the Commander,
with the advice of Counsel, when deciding to report the incident to
higher headquarters. For purposes of the DFARS clause, contractor
personnel must report all suspected law of war violations, not only
those violations that may have been committed by contractor personnel.
11. Comment: DoD should stablish an Office of Primary
Responsibility to assist contractors with law of war issues.
DoD Response: DoD does not believe that establishing an Office of
Primary Responsibility is necessary. Contractors should follow normal
procedures by requesting any needed clarification from the contracting
officer, who in turn can request assistance from a Judge Advocate or
other Government counsel.
12. Comment: Paragraph (d) of the clause at 252.225-7040 should
include a cross-reference to paragraph (a) of the clause, which defines
the law of war.
DoD Response: The cross-reference is unnecessary. Paragraph (a) of
the clause makes it clear that the definitions in that paragraph apply
wherever the defined terms are used throughout the clause.
13. Comment: ``Third country national laws'' should be removed from
252.225-7040(d)(1)(i).
DoD Response: This change is outside the scope of this rule, which
is focused on implementing law of war training in accordance with DoD
Directive 2311.01E.
14. Comment: The Geneva and Hague Conventions should be
specifically addressed in 252.225-7040(d)(1)(ii), as they are integral
to the law of war.
DoD Response: This level of specificity should be and is addressed
in basic law of war training and is not necessary for inclusion in the
DFARS clause.
15. Comment: The rule should include a requirement for all
contractors to be notified of the Geneva/Hague status and designation
noted on the letters of agreement.
DoD Response: This requirement should be handled as part of in-
processing procedures and is not necessary for inclusion in the DFARS.
16. Comment: At 252.225-7040(e)(1)(vii)(A), the phrase ``all
deploying personnel'' should be replaced with ``all contractors
accompanying armed forces.''
DoD Response: For consistency with DoD Directive 2311.01E and the
rest of the clause, the phrase has been changed to ``Contractor
personnel authorized to accompany U.S. Armed Forces deployed outside
the United States.''
17. Comment: At 252.225-7040(h)(3), the phrase ``installation to
which they are assigned'' should be changed to ``installation where
they reside,'' because contractors are not assigned to installations.
DoD Response: The phrase ``installation to which they are
assigned'' has been excluded from the final rule.
18. Comment: ``Applicable United States, host country and third
country national laws'' should be added to 252.225-7040(h)(3)(i).
[[Page 2420]]
DoD Response: This recommended change is outside the scope of this
rule, which is focused on implementing law of war training in
accordance with DoD Directive 2311.01E.
19. Comment: At 252.225-7040(h)(3)(ii), the phrase ``military
operations other than war'' should be changed to ``declared contingency
operations'' to reflect latest terminology.
DoD Response: The phrase has been revised to read ``during any
other military operations.''
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 requirement to institute an effective program to prevent
law of war violations need not be a costly endeavor, and it can be
tailored to the size of the company. Basic law of war training will be
provided by the Government. Advanced law of war training requirements
will be specified in the solicitation and contract to permit
contractors to receive appropriate reimbursement of any training costs.
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 225 and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Therefore, 48 CFR parts 225 and 252 are amended as follows:
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1. The authority citation for 48 CFR parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
225.7402-4 [Redesignated as 225.7402-5]
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2. Section 225.7402-4 is redesignated as 225.7402-5.
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3. A new section 225.7402-4 is added to read as follows:
225.7402-4 Law of war training.
(a) Basic training. Basic law of war training is required for all
contractor personnel authorized to accompany U.S. Armed Forces deployed
outside the United States. The basic training normally will be provided
through a military-run training center. The contracting officer may
authorize the use of an alternate basic training source, provided the
servicing DoD legal advisor concurs with the course content. An example
of an alternate source of basic training is the Web-based training
provided by the Defense Acquisition University at https://acc.dau.mil/
CommunityBrowser.aspx?id=18014&lang=en-US.
(b) Advanced law of war training. (1) The types of personnel that
must obtain advanced law of war training include the following:
(i) Private security contractors.
(ii) Security guards in or near areas of military operations.
(iii) Interrogators, linguists, interpreters, guards, report
writers, information technology technicians, or others who will come
into contact with enemy prisoners of war, civilian internees, retained
persons, other detainees, terrorists, or criminals who are captured,
transferred, confined, or detained during or in the aftermath of
hostilities.
(iv) Other personnel when deemed necessary by the contracting
officer.
(2) If contractor personnel will be required to obtain advanced law
of war training, the solicitation and contract shall specify--
(i) The types of personnel subject to advanced law of war training
requirements;
(ii) Whether the training will be provided by the Government or the
contractor;
(iii) If the training will be provided by the Government, the
source of the training; and
(iv) If the training will be provided by the contractor, a
requirement for coordination of the content with the servicing DoD
legal advisor to ensure that training content is commensurate with the
duties and responsibilities of the personnel to be trained.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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4. Section 252.225-7040 is amended as follows:
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a. By revising the introductory text and the clause date;
0
b. In paragraph (a), by adding, in alphabetical order, a definition of
``Law of war'';
0
c. By revising paragraph (d) and paragraph (e)(1) introductory text;
and
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d. By adding paragraphs (e)(1)(vii) and (h)(3) to read as follows:
252.225-7040 Contractor Personnel Authorized to Accompany U.S. Armed
Forces Deployed Outside the United States.
As prescribed in 225.7402-5(a), use the following clause:
CONTRACTOR PERSONNEL AUTHORIZED TO ACCOMPANY U.S. ARMED FORCES DEPLOYED
OUTSIDE THE UNITED STATES (JAN 2009)
(a) * * *
Law of war means that part of international law that regulates
the conduct of armed hostilities. The law of war encompasses all
international law for the conduct of hostilities binding on the
United States or its individual citizens, including treaties and
international agreements to which the United States is a party, and
applicable customary international law.
* * * * *
(d) Compliance with laws and regulations. (1) The Contractor
shall comply with, and shall ensure that its personnel authorized to
accompany U.S. Armed Forces deployed outside the United States as
specified in paragraph (b)(1) of this clause are familiar with and
comply with, all applicable--
(i) United States, host country, and third country national
laws;
(ii) Provisions of the law of war, as well as any other
applicable treaties and international agreements;
(iii) United States regulations, directives, instructions,
policies, and procedures; and
(iv) Orders, directives, and instructions issued by the
Combatant Commander, including those relating to force protection,
security, health, safety, or relations and interaction with local
nationals.
(2) The Contractor shall institute and implement an effective
program to prevent violations of the law of war by its employees and
subcontractors, including law of war training in accordance with
paragraph (e)(1)(vii) of this clause.
(e) Pre-deployment requirements. (1) The Contractor shall ensure
that the following requirements are met prior to deploying personnel
authorized to accompany U.S. Armed Forces. Specific requirements for
each category may be specified in the statement of work or elsewhere
in the contract.
* * * * *
(vii) Personnel have received law of war training as follows:
(A) Basic training is required for all Contractor personnel
authorized to accompany U.S. Armed Forces deployed outside the
United States. The basic training will be provided through--
(1) A military-run training center; or
(2) A Web-based source, if specified in the contract or approved
by the Contracting Officer.
(B) Advanced training, commensurate with their duties and
responsibilities, may be required for some Contractor personnel as
specified in the contract.
* * * * *
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(h) * * *
(3) Contractor personnel shall report to the Combatant Commander
or a designee, or through other channels such as the military
police, a judge advocate, or an inspector general, any suspected or
alleged conduct for which there is credible information that such
conduct--
(i) Constitutes violation of the law of war; or
(ii) Occurred during any other military operations and would
constitute a violation of the law of war if it occurred during an
armed conflict.
* * * * *
[FR Doc. E9-680 Filed 1-14-09; 8:45 am]
BILLING CODE 5001-08-P
