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Proposed Rule

Defense Federal Acquisition Regulation Supplement; DoD Law of War Program (DFARS Case 2006-D035)

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


Proposed rule with request for comments.


DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to address requirements for DoD contractors to institute effective programs to prevent violations of law of war by contractor personnel authorized to accompany U.S. Armed Forces deployed outside the United States.


Comments on the proposed rule should be submitted in writing to the address shown below on or before March 10, 2008 to be considered in the formation of the final rule.

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You may submit comments, identified by DFARS Case 2006-D035, using any of the following methods:

  • Federal eRulemaking Portal: Follow the instructions for submitting comments.
  • E-mail: Include DFARS Case 2006-D035 in the subject line of the message.
  • Fax: 703-602-7887.
  • Mail: Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062.
  • Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.

Comments received generally will be posted without change to, including any personal information provided.

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Ms. Amy Williams, 703-602-0328.

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A. Background

This proposed 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 proposed 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 proposed rule is consistent with the policy in DoD Directive 2311.01E, DoD Law of War Program, dated May 9, 2006.

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 does not expect this 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 requirement to institute an effective program to prevent law of war violations need not be a costly endeavor, and can be tailored to the size of the company. Additionally, the required law of war training will be provided by the Government or through a web-based source. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2006-D035.

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.

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List of Subjects in 48 CFR Part 252

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Michele P. Peterson,

Editor, Defense Acquisition Regulations System.

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Therefore, DoD proposes to amend 48 CFR part 252 as follows:

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1. The authority citation for 48 CFR part 252 continues to read as follows:

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Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

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2. Section 252.225-7040 is amended as follows:

a. By revising the clause date;

b. In paragraph (a), by adding a definition of “Law of war”;

c. By revising paragraph (d); and

d. By adding paragraphs (e)(1)(vii) and (h)(3) to read as follows:

Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States.
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Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States (XXX 2008)

(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) Treaties, international agreements, and law of war;

(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, to include law of war training in accordance with paragraph (e)(1)(vii) of this clause.

(e) * * *

(1) * * *

(vii) Personnel have received law of war training as follows:

(A) Basic training is required for all deploying personnel. 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. All advanced training will be conducted by Service Judge Advocates, and training content will be coordinated with the servicing legal advisor in the operational chain of command, within the appropriate geographic combatant command.

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(h) * * *

(3) Contractor personnel shall report to the commander of the unit they are accompanying or the installation to which they are assigned, or to the Combatant Commander, any suspected or alleged conduct for which there is credible information that—

(i) Constitutes violation of the law of war; or

(ii) Occurs during military operations other than war and would constitute a violation of the law of war if it occurred during an armed conflict.

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[FR Doc. E8-176 Filed 1-9-08; 8:45 am]