[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-18380]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System 48 CFR Parts 202 and 218

RIN-0750-AH29

Defense Federal Acquisition Regulation Supplement; Simplified Acquisition Threshold for Humanitarian or Peacekeeping Operations

(DFARS Case 2011-D032)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DOD).

ACTION: Interim rule.

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SUMMARY: DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the authority provided by 10 U.S.C. 2302(7) to invoke a simplified acquisition threshold that is two times the amount specified at 41 U.S.C. 134 (formerly 41 U.S.C. 403(11)), as amended by section 807 of the National Defense Authorization Act for Fiscal Year 2005, to support a humanitarian or peacekeeping operation. The current simplified acquisition threshold is $150,000 as specified in Federal Acquisition Regulation 2.101.

DATES: Effective Date: July 25, 2011.

Comment Date: Comments on the interim rule should be submitted in writing to the address shown below on or before September 23, 2011 to be considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2011-D032, using any of the following methods:

Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting ``DFARS Case 2011-D032'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2011-D032.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2011-D032'' on your attached document. Follow the instructions for submitting comments.

E-mail: dfars@osd.mil. Include DFARS Case 2011-D032 in the subject line of the message.

Fax: 703-602-0350.

Mail: Defense Acquisition Regulations System, ATTN: Meredith Murphy, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check 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: Meredith Murphy, telephone 703-602-1302.

SUPPLEMENTARY INFORMATION:

I. Background

United States laws provide for special emergency procurement authorities to be used--

(a) In support of a contingency operation;

(b) To facilitate the defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States; and

(c) In support of a humanitarian or peacekeeping operation.

The first two of the authorities above were made available for use by agencies in addition to DoD by placing them at 41 U.S.C. 1903 (formerly 41 U.S.C. 428a). The latter authority resides solely in DoD.

The three special emergency procurement authorities are specified in statute:

Contingency operation: 10 U.S.C. 101(13) and 41 U.S.C. 1903 (formerly 41 U.S.C. 428a).

Defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States: 41 U.S.C. 1903 (formerly 41 U.S.C. 428a).

Humanitarian or peacekeeping operation: 10 U.S.C. 2302(7).

After September 11, 2001, the Governmentwide special emergency procurement authorities were enacted (41 U.S.C. 1903 (formerly 41 U.S.C. 428a). These authorities provided for increases in the simplified acquisition threshold and/or micropurchase threshold depending on what type of special emergency is declared. The Federal Acquisition Regulation (FAR) was revised to implement the authority to increase thresholds when supporting a contingency operation or facilitating the defense against or recovery from nuclear, biological, chemical, or radiological attack against the United States.

While the definition of a humanitarian or peacekeeping operation is included in the FAR at 2.101, 41 U.S.C. 1903 does not provide Governmentwide authority for raising the simplified acquisition threshold in support of such operations. Therefore, its authority is included in the DFARS. Specific to the authority to support a humanitarian or peacekeeping operation, the simplified acquisition threshold can be increased to double the current basic simplified acquisition threshold, currently $150,000 as specified in FAR 2.101, but only when the purchase is made, or the contract is awarded and performed, outside the United States. There is no comparable authority to increase the micropurchase threshold for acquisitions in support of a humanitarian or peacekeeping operation.

II. 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 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 small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not impose any requirements on U. S. small businesses. The statute applies only to purchases made, or contracts awarded and performed, outside the United States and only to those acquisitions that directly support a humanitarian or peacekeeping operation. Therefore, an initial regulatory flexibility analysis has not been performed.

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 the 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 2011-D032) in correspondence.

IV. Paperwork Reduction Act

The rule does not contain 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).

V. Determination To Issue an Interim Rule

Pursuant to 41 U.S.C. 1707 (formerly 41 U.S.C. 418b) and FAR 1.501-3(b), 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 comment. This action is necessary because the statutory authority for doubling the simplified acquisition threshold in support of a humanitarian or peacekeeping operation is not included in the DFARS currently, and is, therefore, generally not known to be available. It is imperative that DoD contracting officers be aware of this threshold for immediate implementation in DoD acquisitions. However, 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 202 and 218

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 202 and 218 are amended as follows:

1. The authority citation for 48 CFR parts 202 and 218 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 202--DEFINITIONS OF WORDS AND TERMS

2. In section 202.101, add in alphabetical order the definition ``Simplified acquisition threshold'' to read as follows:

202.101 Definitions.

* * * * *

Simplified acquisition threshold, in addition to the meaning at FAR 2.101, means $300,000 when soliciting or awarding contracts to be awarded and performed outside the United States, or making purchases outside the United States, for acquisitions of supplies and services that, as determined by the head of the contracting activity, are to be used to support a humanitarian or peacekeeping operation, as defined at FAR 2.101.

PART 218--EMERGENCY ACQUISITIONS

218.270 [Redesignated as 218.271]

3. Redesignate section 218.270 as section 218.271 and add new section

218.270 to read as follows:

218.270 Humanitarian or peacekeeping operation.

The term ``humanitarian or peacekeeping operation'' is defined at FAR 2.101. In accordance with 10 U.S.C. 2302(7), when a humanitarian or peacekeeping operation is declared, the simplified acquisition threshold is raised to $300,000 for DoD purchases that are awarded and performed, or purchases that are made, outside the United States in support of that operation. See 202.101.

[FR Doc. 2011-18380 Filed 7-22-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-18381]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System48 CFR Parts 237 and 252

RIN 0750-AG88

Defense Federal Acquisition Regulation Supplement; Prohibition on Interrogation of Detainees by Contractor Personnel (DFARS Case 2010-D027)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: The Department of Defense (DoD) is adopting as final, without change, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 1038 of the National Defense Authorization Act (NDAA) for Fiscal Year 2010. Section 1038 prohibits contractor personnel from interrogating detainees under the control of DoD.

DATES: Effective Date: July 25, 2011.

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, 703-602-1302.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published an interim rule at 75 FR 67632 on November 3, 2010, to implement section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84). Section 1038 prohibits contractor personnel from interrogating detainees under the control of the Department of Defense. It also allows the Secretary of Defense to waive the prohibition for a limited period of time, with limited redelegation authority, if determined necessary to the national security interests of the United States. The interim rule added coverage at DFARS 237.173 and a new clause at DFARS 252.237-7010 that prescribes policies prohibiting interrogation of detainees by contractor personnel, as required by section 1038 of the NDAA for Fiscal Year 2010. The DFARS also covers permissible support roles for contractors by providing that contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of, and advisors to, interrogations, if the contractor personnel meet the criteria provided by DoD Instruction 1100.22, Policy and Procedures for Determining Workforce Mix (http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf); DoD Directive 2310.01E, The Department of Defense Detainee Program (http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf); and DoD Directive 3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning http://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf.

The public comment period closed on January 3, 2011. Three respondents provided comments on the interim rule.

II. Discussion and Analysis

A summary of the comments received and their analysis grouped by category follows.

A. Eliminate Waiver Authority

Comment: Three respondents provided comments supporting the idea that establishing an effective system of managing and overseeing contractors supporting interrogations must be accorded the highest priority. However, the respondents did not support the provision at DFARS 237.173-4 that allows the Secretary of Defense to waive the prohibition on contractor interrogations for up to 60 days on the grounds of national security interests. The respondents considered the function to be inherently governmental, and one that should never be performed by contractor personnel.

Response: Section 1038 of the statute specifically provides the Secretary of Defense authority to waive, for a limited time, the prohibition on interrogation of detainees by contractor personnel. Contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of and advisors to interrogators, in interrogations of detainees, provided that appropriately qualified and trained DoD personnel (military or civilian) are available to oversee the contractor's performance and to ensure that contractor personnel do not perform activities that are prohibited under DoD policy. Such personnel are subject to the same laws, rules, procedures, and policies pertaining to detainee operations and interrogations as those that apply to Government personnel in such positions in such interrogations (DFARS 237.173-3). Accordingly, no change has been made to the DFARS in response to these comments.

B. Penalties and Compliance

Comment: One respondent stated that DoD must prescribe a clear set of penalties for any violation of the new policy and recommended civil and criminal fines, imprisonment, the withholding of contract award fees, contract termination, and/or suspension and debarment.

Response: DoD has no authority to write civil or criminal penalties into the DFARS. Contracting officers have considerable discretion to exercise the usual broad range of contractual remedies, e.g., withholding contract award fees, contract termination, or suspension and/or debarment. Accordingly, no change has been made to the DFARS in response to this comment.

Comment: One respondent expressed concern that there would be attempts to evade the new policy by transferring detainees to the custody of non-DoD agencies or foreign governments that are not governed by the DFARS limitations. The respondent also suggested that similar coverage at FAR 7.503(c)(8) should be considered.

Response: The acquisition regulations are written based on the presumption that Government employees act in good faith and in accordance with acquisition regulations and the law. Further, since the coverage at FAR 7.503(c)(8) lists ``the direction and control of intelligence and counter-intelligence operations'' as an example of an inherently governmental function, there would be no value added by reiterating this language in the DFARS.

C. Clarity of Definitions

Comment: One respondent recommended clarification of the definition of ``detainee'' in 237.173-2, which the respondent considered to be silent on the matter of whether the term ``hostilities'' (which is included in the definition of ``detainee'') includes situations in which there has not been a formally declared war (e.g., the detainee is classified as an unlawful combatant rather than a prisoner of war). The respondent noted that the definition's qualifier, ``this includes but is not limited to,'' suggests a broad definition for ``hostilities.''

Response: The term ``detainee'' is defined at 237.173-2 as ``any person captured, detained, held, or otherwise under the effective control of DoD personnel (military or civilian) in connection with hostilities. This includes, but is not limited to, enemy prisoners of war, civilian internees, and retained personnel. This does not include DoD personnel or DoD contractor personnel being held for law enforcement purposes.'' This definition was derived from the ``detainee'' definition in the governing directive, 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