[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2418-2421]
From the Federal Register Online via the Government Publishing 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.

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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

[[Page 2419]]

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.

0
Therefore, 48 CFR parts 225 and 252 are amended as follows:
0
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]

0
2. Section 225.7402-4 is redesignated as 225.7402-5.


0
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

0
4. Section 252.225-7040 is amended as follows:
0
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
0
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.
* * * * *

[[Page 2421]]

    (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]
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