44282 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

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. 

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, 


rmajette on DSK89S0YB1PROD with RULES
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 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 

■ 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] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 101126522–0640–02] 

RIN 0648–XA594 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Northern Rockfish for 

Catcher/Processors Participating in 

the Rockfish Limited Access Fishery in 

the Central Regulatory Area of the Gulf 

of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for northern rockfish by catcher/ 

processors participating in the rockfish 

limited access fishery in the Central 

Regulatory Area of the Gulf of Alaska 


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