Defense Federal Acquisition Regulation Supplement; Prohibition on Interrogation of Detainees by Contractor Personnel (DFARS Case 2010-D027), 67632-67634 [2010-27780]
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Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Rules and Regulations
domestic partner’’ after the words
‘‘unaccompanied spouse’’.
■ b. In the table, in the heading of the
third column, by adding the words ‘‘,
domestic partner’’ after the words
‘‘accompanied spouse’’.
■ c. In footnote 1 of the table, by adding
the words ‘‘or domestic partner’’ after the
words ‘‘when the spouse’’.
PART 303–70—AGENCY
REQUIREMENTS FOR PAYMENT OF
EXPENSES CONNECTED WITH THE
DEATH OF CERTAIN EMPLOYEES
17. The authority citation for 41 CFR
part 303–70 continues to read as
follows:
■
Authority: 5 U.S.C. 5721–5738; 5741–
5742; E.O. 11609, 3 CFR, 1971–1975 Comp.,
p. 586.
§ 302–70.305
[Amended]
18. Amend § 303–70.305 by adding in
paragraph (c) the words ‘‘or domestic
partner’’ after the words
‘‘unaccompanied spouse’’.
■
[FR Doc. 2010–27691 Filed 11–2–10; 8:45 am]
BILLING CODE 6820–14–P
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)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule with request for
comments.
AGENCY:
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.
emcdonald on DSK2BSOYB1PROD with RULES
SUMMARY:
VerDate Mar<15>2010
16:21 Nov 02, 2010
Jkt 223001
Respondents may submit
comments, identified by DFARS Case
2010–D027, using any of the following
methods:
• Regulations.gov: https://
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 https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://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:
ADDRESSES:
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
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
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 (https://
www.dtic.mil/whs/directives/corres/pdf/
110022p.pdf); DoD Directive 2310.01E,
The Department of Defense Detainee
Program (https://www.dtic.mil/whs/
directives/corres/pdf/231001p.pdf); and
DoD Directive 3115.09, DoD Intelligence
Interrogations, Detainee Debriefings,
and Tactical Questioning (https://
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 intelligencerelated requirements to only 255 unique
Data Universal Numbering System
(DUNS) numbers. Of this total, there
were 143 unique DUNS numbers for
E:\FR\FM\03NOR1.SGM
03NOR1
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Rules and Regulations
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.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
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.
emcdonald on DSK2BSOYB1PROD with RULES
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.
237.173 Prohibition on interrogation of
detainees by contractor personnel.
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
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16:21 Nov 02, 2010
Jkt 223001
List of Subjects in 48 CFR Parts 237 and
252
Government procurement.
Therefore, 48 CFR parts 237 and 252
are amended as follows:
■ 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
2. Sections 237.173 through 237.173–
5 are added to subpart 237.1 to read as
follows:
■
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—
PO 00000
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Fmt 4700
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67633
(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 (https://
www.dtic.mil/whs/directives/corres/pdf/
110022p.pdf); DoD Directive 2310.01E,
The Department of Defense Detainee
Program (https://www.dtic.mil/whs/
directives/corres/pdf/231001p.pdf); and
DoD Directive 3115.09, DoD Intelligence
Interrogations, Detainee Debriefings,
and Tactical Questioning (https://
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
3. Section 252.212–7001 is amended
as follows:
■ a. Revise the clause date;
■ b. Redesignate paragraphs (b)(21)
through (b)(25) as paragraphs (b)(22)
through (b)(26), respectively.
■ c. Add new paragraph (b)(21);
■ d. Redesignate paragraphs (c)(2)
through (c)(4) as paragraphs (c)(3)
through (c)(5), respectively; and
■ e. Add new paragraph (c)(2).
■
E:\FR\FM\03NOR1.SGM
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67634
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Rules and Regulations
252.212–7001 Contract terms and
conditions required to implement statutes
or Executive Orders applicable to Defense
acquisitions of commercial items.
RIN–2126–AB31
a direct final rule entitled ‘‘Compliance
with Interstate Motor Carrier Noise
Emission Standards: Exhaust Systems’’
in the Federal Register (75 FR 57191).
The direct final rule amends 49 CFR
part 325 by removing turbochargers
from the list of equipment considered to
be noise dissipative devices. FMCSA
used the direct final rule procedures (75
FR 29915, May 28, 2010) because it was
a routine and non-controversial
amendment, and the Agency did not
expect any adverse comments. The
direct final rule advised the public that
unless a written adverse comment, or a
written notice of intent to submit such
an adverse comment, was received by
October 20, 2010, the Agency would
provide notice confirming the effective
date. Because FMCSA did not receive
any comments to the docket by October
20, 2010, the direct final rule will
become effective November 19, 2010.
■
4. Section 252.237–7010 is added to
read as follows:
Compliance With Interstate Motor
Carrier Noise Emission Standards:
Exhaust Systems
Issued on: October 27, 2010.
Larry W. Minor,
Associate Administrator for Policy.
252.237–7010 Prohibition on interrogation
of detainees by contractor personnel.
AGENCY:
Federal Motor Carrier Safety
Administration, DOT.
ACTION: Direct final rule; confirmation of
effective date.
[FR Doc. 2010–27797 Filed 11–2–10; 8:45 am]
*
*
*
*
*
SUBCONTRACTS FOR COMMERCIAL
ITEMS AND COMMERCIAL
COMPONENTS (DOD CONTRACTS)
(NOV 2010)
*
*
*
*
*
CONTRACT TERMS AND
CONDITIONS REQUIRED TO
IMPLEMENT STATUTES OR
EXECUTIVE ORDERS APPLICABLE TO
DEFENSE ACQUISITIONS OF
COMMERCIAL ITEMS (NOV 2010)
(c) 252.237–7010 Prohibition on
Interrogation of Detainees by Contractor
Personnel (NOV 2010) (Section 1038 of Pub.
L. 111–84)].
*
BILLING CODE 5001–08–P
*
*
*
*
(b) * * *
(21) ll 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).
*
*
*
*
*
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)
5. Section 252.244–7000 is amended
as follows:
■ a. Revise the clause date;
■ b. Redesignate paragraphs (c) through
(e) as paragraphs (d) through (f),
respectively; and
■ c. Add new paragraph (c).
emcdonald on DSK2BSOYB1PROD with RULES
■
252.244–7000 Subcontracts for
Commercial Items and Commercial
Components (DoD Contracts).
*
*
*
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*
*
16:21 Nov 02, 2010
Jkt 223001
*
*
*
*
*
[FR Doc. 2010–27780 Filed 11–2–10; 8:45 am]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 325
[Docket No. FMCSA–2006–24065]
The Federal Motor Carrier
Safety Administration (FMCSA)
confirms the effective date of the direct
final rule, titled ‘‘Compliance with
Interstate Motor Carrier Noise Emission
Standards: Exhaust Systems,’’ published
on September 20, 2010, in the Federal
Register (75 FR 57191). This rule
eliminates turbochargers from the list of
equipment considered to be noise
dissipative devices.
DATES: This rule is effective November
19, 2010.
ADDRESSES: The docket for this
rulemaking (FMCSA–2006–24065) is
available for inspection at https://www.
regulations.gov. If you do not have
access to the Internet, you may also
view the docket by visiting the Docket
Management Facility in Room W12–140
on the ground floor of the Department
of Transportation West Building, 1200
New Jersey Avenue, SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.
e.t., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, e-mail
or call Mr. Brian Routhier, Vehicle and
Roadside Operations Division (MC–
PSV), Office of Bus and Truck Standards
and Operations, at
FMCSA_MCPSV@dot.gov or (202) 366–
1225.
SUPPLEMENTARY INFORMATION: On
September 20, 2010, FMCSA published
SUMMARY:
PO 00000
Frm 00046
Fmt 4700
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BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 393
[Docket No. FMCSA–2010–0186]
RIN–2126–AB27
Parts and Accessories Necessary for
Safe Operation: Antilock Brake
Systems
Federal Motor Carrier Safety
Administration, DOT.
ACTION: Direct final rule; confirmation of
effective date.
AGENCY:
The Federal Motor Carrier
Safety Administration (FMCSA)
confirms the effective date of the direct
final rule titled ‘‘Parts and Accessories
Necessary for Safe Operation: Antilock
Brake Systems,’’ published on
September 21, 2010, in the Federal
Register (75 FR 57393). This rule made
permanent the existing requirement in
the Federal Motor Carrier Safety
Regulations that each trailer with an
antilock brake system be equipped with
an external malfunction indicator lamp.
DATES: This rule is effective November
22, 2010.
ADDRESSES: The docket for this
rulemaking (FMCSA–2010–0186) is
available for inspection at https://www.
regulations.gov. If you do not have
SUMMARY:
E:\FR\FM\03NOR1.SGM
03NOR1
]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://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 https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check https://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 (https://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf); DoD Directive
2310.01E, The Department of Defense Detainee Program (https://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf); and DoD Directive
3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and
Tactical Questioning (https://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 (https://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf); DoD Directive 2310.01E, The Department of
Defense Detainee Program (https://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf); and DoD Directive 3115.09, DoD Intelligence
Interrogations, Detainee Debriefings, and Tactical Questioning (https://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]
BILLING CODE 5001-08-P
