Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules 66223 

XI. Statutory and Executive Order 

Review 

Under Executive Order 12866, 

entitled Regulatory Planning and 

Review (58 FR 51735, October 4, 1993), 

this is a ‘‘significant regulatory action’’ 

because it relates to a novel approach to 

nationwide landfill management. 

Accordingly, EPA submitted this 

Advance Notice of Proposed 

Rulemaking to the Office of 

Management and Budget (OMB) for 

review under Executive Order 12866 

and any changes made in response to 

OMB recommendations have been 

documented in the docket for this 

action. 

Because this document does not 

impose or propose any requirements, 

and instead seeks comments and 

suggestions for the Agency to consider 

in possibly developing a subsequent 

proposed rule, the various other review 

requirements that apply when an agency 

imposes requirements do not apply to 

this action. Nevertheless, as part of your 

comments on this ANPRM, you may 

include any comments or information 

that could help the Agency: To assess 

the potential impact of a subsequent 

regulatory action on small entities 

pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.); to consider 

voluntary consensus standards pursuant 

to section 12(d) of the National 

Technology Transfer and Advancement 

Act (15 U.S.C. 272 note); to consider 

environmental health or safety effects 

on children pursuant to Executive Order 

13045, entitled ‘‘Protection of Children 

from Environmental Health Risks and 

Safety Risks’’ (62 FR 19885, April 23, 

1997); to consider human health or 

environmental effects on minority or 

low-income populations pursuant to 

Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994); or to consider potential impacts 

to state and local governments or tribal 

governments. 

XII. Conclusion 

The information available to EPA to 

date suggests that liquids addition in 

well-managed bioreactor landfill units 

and/or wet landfill units may provide 

reductions in long-term risk and 

operational costs in comparison to drytomb landfills as a result of accelerated 

waste biodegradation. The EPA 

continues to gather information on this 

issue, including the information 

received in response to this ANPRM. 

This information will assist EPA in 

making a determination concerning 

what actions, if any, to take to revise the 

MSWLF criteria. 

List of Subjects in 40 CFR Part 258 

Environmental protection, Reporting 

and recordkeeping requirements, Waste 

treatment and disposal, Water pollution 

control. 

Dated: December 14, 2018. 

Andrew R. Wheeler, 

Acting Administrator. 

[FR Doc. 2018–27748 Filed 12–21–18; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 3, 31, and 52 

[FAR Case 2017–005; Docket No. 2017– 

0005, Sequence No. 1] 

RIN 9000–AN32 

Federal Acquisition Regulation: 

Whistleblower Protection for 

Contractor Employees 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: DoD, GSA, and NASA are 

proposing to amend the Federal 

Acquisition Regulation (FAR) to 

implement an act to enhance 

whistleblower protection for contractor 

employees. The rule would make 

permanent the protection for disclosure 

of certain information. It also would 

clarify that the prohibition on 

reimbursement for certain legal costs 

applies to subcontractors, as well as 

contractors. 

DATES: Interested parties should submit 

comments to the Regulatory Secretariat 

Division at one of the addresses shown 

below on or before February 25, 2019 to 

be considered in the formulation of a 

final rule. 

ADDRESSES: Submit comments in 

response to FAR Case 2017–005 by any 

of the following methods: 

• Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘FAR Case 2017–005’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Comment Now’’ that corresponds with 

‘‘FAR Case 2017–005.’’ Follow the 

instructions provided on the screen. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2017– 

005’’ on your attached document. 

• Mail: General Services 

Administration, Regulatory-Secretariat 

Division (MVCB), ATTN: Lois Mandell, 

1800 F Street NW, 2nd Floor, 

Washington, DC 20405. 

Instructions: Please submit comments 

only and cite ‘‘FAR case 2017–005’’ in 

all correspondence related to this case. 

All comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal and/or business confidential 

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: For 

clarification of content, contact Ms. 

Cecelia L. Davis, Procurement Analyst, 

at 202–219–0202. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755. 

Please cite ‘‘FAR Case 2017–005.’’ 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA are proposing 

to amend the FAR to implement an act 

to enhance whistleblower protection for 

contractor and grantee employees (Pub. 

L. 114–261), enacted December 14, 

2016. Although the statute addresses 

both contractor and grantee employees, 

the FAR only covers contracts and 

contractors. Grants are covered in title 2 

of the Code of Federal Regulations. 

This statute amends 41 U.S.C. 4712 to 

make permanent the pilot program for 

enhancement of contractor protection 

from reprisal for sharing certain 

information. The four-year pilot 

program was enacted on January 2, 

2013, by section 828 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2013 (Pub. L. 112–239), 

with an effective period of four years 

from the date of enactment (i.e., January 

2, 2013, through January 1, 2017). 

Section 1091(e) of the NDAA for FY 

2014 (Pub. L. 113–66) modified the 

effective period of the pilot program to 

be four years from the date that is 180 

days after the date of enactment (i.e., 

July 1, 2013, through June 30, 2017). 

However, the program did not expire as 

it became permanent on December 14, 

2016, before either of those expiration 

dates. This program does not apply to 

DoD, NASA, or the Coast Guard. 

This statute also clarifies that the cost 

principles at 10 U.S.C. 2324(k) and 41 


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U.S.C. 4304 and 4310 that prohibit 

reimbursement for certain legal costs 

apply to costs incurred by a contractor, 

subcontractor, or personal services 

contractor. Personal services contractors 

are contractors. Cost principles 

generally already apply in the same way 

to costs incurred by subcontractors as to 

costs incurred by contractors. 

II. Discussion and Analysis 

A. Pilot program becomes permanent. 

This rule proposes to amend the FAR to 

make permanent the civilian agency 

contractor pilot program that 

implements 41 U.S.C. 4712, currently 

located at FAR 3.908. 

• FAR 3.900 is amended to delete: (1) 

The discussion of 41 U.S.C. 4705, the 

prior whistleblower statute (which had 

been implemented at FAR 3.901 through 

3.906, but which had been suspended 

for the duration of the 41 U.S.C. 4712 

pilot program), since the successor 

statute, 41 U.S.C. 4712, has been made 

permanent; and (2) the sunset date for 

41 U.S.C. 4712. 

• The FAR 3.908 heading is amended 

to remove the designation as a pilot 

program, and the entire section is 

relocated to 3.900 through 3.906 as 

follows: 

Æ 3.908–1 = 3.900(a) 

Æ 3.908–2 = 3.901 (retains the definition 

of ‘‘authorized official of the 

Department of Justice’’) 

Æ 3.908–3 = 3.903 

Æ 3.908–4 = 3.904–1 

Æ 3.908–5 = 3.904–2 

Æ 3.908–6 = 3.905–1 

Æ 3.908–7 = 3.905–2 

Æ 3.908–8 = 3.902 

Æ 3.908–9 = 3.906 

• There are a few minor edits in FAR 

3.900(a). 

• FAR 3.903(a) and 3.905–1 are 

reformatted with vertical lists for 

improved clarity. 

• FAR 3.904–2 is amended to state 

that the complainant, contractor, and/or 

subcontractor shall submit their 

responses to the written report to both 

the head of the agency and the Office of 

Inspector General. 

• FAR clause 52.203–17, Contractor 

Employee Whistleblower Rights, is 

amended to remove the reference to 

section 828 of the NDAA for FY 2013, 

which is no longer necessary since 41 

U.S.C. 4712 has been made permanent. 

The title of the clause is also simplified. 

• Agencies will use FAR clause 

52.203–17 in contracts for both 

commercial and noncommercial items 

that exceed the simplified acquisition 

threshold. Previously, the requirement 

to comply with the civilian agency 

contractor Whistleblower statute was 

implemented through paragraph (r) of 

FAR clause 52.212–4, Contract Terms 

and Conditions—Commercial items. 

• The civilian agency contractor 

whistleblower protections of 41 U.S.C. 

4712 listed in paragraph (r) of FAR 

clause 52.212–4 are removed, because 

the clause 52.203–17 is now included in 

FAR clause 52.212–5, Contract Terms 

and Conditions Required To Implement 

Statutes or Executive Orders— 

Commercial Items. 

• Coverage of 10 U.S.C. 2409 will 

remain in FAR clause 52.212–4(r) to 

cover DoD, NASA, and the Coast Guard. 

Only 41 U.S.C. 4712 coverage is being 

moved to FAR clause 52.212–5. 

• FAR clause 52.212–5 is amended to 

list FAR clause 52.203–17. 

• Conforming changes are made to 

FAR 52.244–6, Subcontracts for 

Commercial Items. 

B. Prohibition on reimbursement for 

legal costs. 

• In order to clarify that the 

prohibition on reimbursement for 

certain legal costs applies to 

subcontractors, as well as contractors, 

this rule proposes to amend FAR 

31.205–47 and 31.603 to add ‘‘or 

subcontract’’ or ‘‘or subcontractor’’ as 

appropriate. The term ‘‘personal 

services contract’’ and ‘‘personal 

services contractor’’ are not added to the 

FAR, because they are covered by the 

terms ‘‘contract’’ and ‘‘contractor.’’ Also, 

the term ‘‘or subcontract’’ is not added 

at FAR 31.205–47(b)(3)(ii) and (iii), 

because the Government does not have 

the authority to rescind, void, or 

terminate a subcontract. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Items, Including Commercially 

Available Off-the-Shelf (COTS) Items 

This proposed rule does not add any 

new provisions or clauses, nor does it 

change the applicability of existing 

provisions or clauses to contracts at or 

below the SAT and contracts for the 

acquisition of commercial items, 

including COTS items. The clause at 

52.203–17, Contractor Employee 

Whistleblower Rights and Requirement 

to Inform Employees of Whistleblower 

Rights, is not prescribed for use in 

contracts valued at or below the SAT. 

IV. Expected Cost Impact on the Public 

FAR subpart 3.9, Whistleblower 

Protections for Contractor Employees, 

was added to the FAR on September 19, 

1995, to implement sections 6005 and 

6006 of the Federal Acquisition 

Streamlining Act of 1994 (Pub. L. 103– 

355) codified at 41 U.S.C. 265, 

recodified as 41 U.S.C. 4705. DoD, GSA, 

and NASA published an interim rule in 

the Federal Register at 78 FR 60169 on 

September 30, 2013 (finalized on 

December 4, 2015, at 80 FR 75911) to 

implement a four-year pilot program to 

enhance the existing whistleblower 

protections, as required by section 828 

of the NDAA for FY 2013, effective 

through January 1, 2017. This pilot 

program is inapplicable to DoD, NASA, 

and the Coast Guard, because these 

agencies are covered by 10 U.S.C. 2409, 

as amended by section 827 of the NDAA 

for FY 2013. Using FPDS data for FY 

2016, there were about 20,800 new 

awards over the simplified acquisition 

threshold in FY 2016 by agencies other 

than DoD, NASA and the Coast Guard, 

to approximately 9,100 unique 

awardees. 

This proposed rule would implement 

Public Law 114–261, which makes the 

pilot program permanent. If Public Law 

114–261 had not been enacted, the pilot 

program would have expired and 41 

U.S.C. 4705, as implemented in 1995 at 

FAR 3.900–3.906, would automatically 

become effective again. Therefore, any 

impact of this rule is due to the 

differences between the pilot program 

authorized by the NDAA for FY 2013, as 

made permanent, and the prior 

whistleblower regulations implemented 

in 1995. 

The enhancements to the 

whistleblower regulations created by the 

pilot that would be made permanent by 

this rulemaking do not impose any 

substantive burden on the public. The 

rule provides more details about the 

nature of what constitutes 

whistleblower information and to whom 

it may be disclosed, as well as more 

detailed procedures for filing and 

investigating complaints and enforcing 

orders. A clause, applicable above the 

simplified acquisition threshold, 

informs the contractor that employees 

working under the contract are subject 

to whistleblower protection and 

requires the contractor to inform its 

employees in writing, in the 

predominant language of the workforce, 

of the employee whistleblower rights 

and protections. This requirement can 

be easily satisfied by issuing an email to 

all employees working on the contract. 

For this reason, DoD, GSA, and NASA 

consider the burden to be de minimis. 

The rule would also add the words 

‘‘or subcontractor’’ at multiple locations 

throughout FAR 31.205–47, which also 

has no or de minimis impact, because 

the cost principles generally already 

apply in the same way to costs incurred 

by subcontractors as to costs incurred by 

contractors. FAR 31.000 states that the 

part contains cost principles and 

procedures for the pricing of contracts, 


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subcontracts, and modifications to 

contracts and subcontracts whenever 

cost analysis is performed (see 15.404– 

1), and the determination, negotiation, 

or allowance of costs when required by 

a contract clause. FAR 31.103 further 

states that the contracting officer shall 

incorporate the cost principles and 

procedures in subpart 31.2 and agency 

supplements by reference in contracts 

with commercial organizations as the 

basis for determining reimbursable costs 

under cost-reimbursement contracts and 

cost-reimbursement subcontracts under 

these contracts performed by 

commercial organizations. Other 

sections expand this to contracts and 

subcontracts thereunder with 

educational institutions and 

construction and architect-engineer 

contracts. FAR 31.204 further addresses 

the applicability of the cost principles 

and procedures to subcontracts. 

There were a small number of 

whistleblower cases filed during the 

pilot period as shown in a U.S. 

Government Accountability Office 

(GAO) report. GAO report 17–227, 

Contractor Whistleblower Protections 

Pilot Program—Improvements Needed 

to Ensure Effective Implementation 

showed that GAO surveyed 14 

departments for reprisal complaints 

received from July 1, 2013, to December 

31, 2015. This report was published and 

publicly released on March 2, 2017. 

The report stated ‘‘Of the 127 reprisal 

complaints submitted by employees of 

contractors, subcontractors, and 

grantees under the pilot program, 44 

were investigated by the OIG [Office of 

Inspector General] and none of the 

investigations completed thus far 

resulted in findings that substantiated 

reprisal.’’ 

V. 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. 

VI. Executive Order 13771 

This proposed rule is not expected to 

be subject to E.O. 13771, because this 

rule has a de minimis impact on the 

public (see section IV of this preamble). 

VII. Regulatory Flexibility Act 

DoD, GSA, and NASA do 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. However, an Initial Regulatory 

Flexibility Analysis (IRFA) has been 

performed and is summarized as 

follows: 

This proposed rule would implement 

Public Law 114–261, which was enacted 

December 14, 2016. The objective of this rule 

is to enhance whistleblower protection for 

contractor employees, by making permanent 

the protection for disclosure of certain 

information, and ensuring that the 

prohibition on reimbursement for certain 

legal costs applies to subcontractors, as well 

as contractors, as required by Public Law 

114–261. 

This proposed rule does not make any 

substantive changes to the pilot program 

applicable to civilian agencies authorized by 

the NDAA for FY 2013, other than to make 

it permanent. The clause is prescribed above 

the simplified acquisition threshold (SAT). It 

also does not apply to DoD, NASA, and the 

Coast Guard, nor to certain elements of the 

intelligence community. Based on Federal 

Procurement Data System (FPDS) data for 

fiscal year (FY) 2016, there were 

approximately 10,000 new contract awards to 

small businesses by civilian agencies that 

exceeded the SAT (about 5,000 unique 

vendors). 

Regarding the amendment to the cost 

principles, addition of the words ‘‘or 

subcontractor’’ at multiple locations 

throughout FAR 31.205–47 has no or de 

minimis impact, because the cost principles 

generally already apply in the same way to 

costs incurred by subcontractors as to costs 

incurred by contractors. 

There are no reporting, recordkeeping, or 

other compliance requirements in this rule. 

The rule does not duplicate, overlap, or 

conflict with any other Federal rules. DoD, 

GSA, and NASA were unable to identify any 

alternatives to the rule that would reduce the 

impact on small entities and still meet the 

requirements of the statute. 

The Regulatory Secretariat Division 

has submitted a copy of the IRFA to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

IRFA may be obtained from the 

Regulatory Secretariat Division. DoD, 

GSA and NASA invite comments from 

small business concerns and other 

interested parties on the expected 

impact of this rule on small entities. 

DoD, GSA, and NASA will also 

consider comments from small entities 

concerning the existing regulations in 

subparts affected by this rule consistent 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 610 (FAR Case 

2017–005) in correspondence. 

VIII. 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). 

List of Subjects in 48 CFR Parts 3, 31, 

and 52 

Government procurement. 

Dated: December 14, 2018. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA are 

proposing to amend 48 CFR parts 3, 31, 

and 52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 3, 31, and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 51 U.S.C. 20113. 

PART 3—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 2. Revise section 3.900 to read as 

follows: 

3.900 Scope of subpart. 

This subpart implements various 

statutory whistleblower programs. This 

subpart does not implement 10 U.S.C. 

2409, which is applicable only to DoD, 

NASA, and the Coast Guard. 

(a) 41 U.S.C. 4712 is implemented in 

3.900 through 3.906. These sections do 

not apply to— 

(1) DoD, NASA, and the Coast Guard; 

or 

(2) Any element of the intelligence 

community, as defined in section 3(4) of 

the National Security Act of 1947 (50 

U.S.C. 3003(4)). Sections 3.900 through 

3.906 do not apply to any disclosure 

made by an employee of a contractor or 

subcontractor of an element of the 

intelligence community if such 

disclosure— 

(i) Relates to an activity of an element 

of the intelligence community; or 

(ii) Was discovered during contract or 

subcontract services provided to an 

element of the intelligence community. 

(b) Section 743 of Division E, Title VII 

of the Consolidated and Further 

Continuing Appropriations Act, 2015 

(Pub. L. 113–235) and its successor 

provisions in subsequent appropriations 

acts (and as extended in continuing 


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resolutions), is implemented in 3.909, 

which is applicable to all agencies. 

(c) Contracts funded by the American 

Recovery and Reinvestment Act. Section 

3.907 of this subpart implements section 

1553 of the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5) and applies to all contracts funded in 

whole or in part by that Act. 

■ 3. Amend section 3.901 by— 

■ a. Adding in alphabetical order, the 

definition, ‘‘Abuse of authority’’; 

■ b. Removing the definition 

‘‘Authorized official of an agency’’; and 

■ c. Revising the definition ‘‘Inspector 

General’’. 

The added and revised text reads as 

follows: 

3.901 Definitions. 

* * * * * 

Abuse of authority means an arbitrary 

and capricious exercise of authority that 

is inconsistent with the mission of the 

executive agency concerned or the 

successful performance of a contract of 

such agency. 

* * * * * 

Inspector General means an Inspector 

General appointed under the Inspector 

General Act of 1978 and any Inspector 

General that receives funding from, or 

has oversight over contracts awarded 

for, or on behalf of, the executive agency 

concerned. This definition does not 

apply to 3.907. 

* * * * * 

■ 4. Revise section 3.902 to read as 

follows: 

3.902 Classified information. 

41 U.S.C. 4712 does not provide any 

right to disclose classified information 

not otherwise provided by law. 

■ 5. Revise section 3.903 to read as 

follows: 

3.903 Policy. 

(a)(1) Contractors and subcontractors 

are prohibited from discharging, 

demoting, or otherwise discriminating 

against an employee as a reprisal for 

disclosing, to any of the entities listed 

at paragraph (b) of this section, 

information that the employee 

reasonably believes is— 

(i) Evidence of gross mismanagement 

of a Federal contract; 

(ii) A gross waste of Federal funds; 

(iii) An abuse of authority relating to 

a Federal contract; 

(iv) A substantial and specific danger 

to public health or safety; or 

(v) A violation of law, rule, or 

regulation related to a Federal contract 

(including the competition for or 

negotiation of a contract). 

(2) A reprisal is prohibited even if it 

is undertaken at the request of an 

executive branch official, unless the 

request takes the form of a nondiscretionary directive and is within the 

authority of the executive branch 

official making the request. 

(b) Entities to whom disclosure may 

be made. 

(1) A Member of Congress or a 

representative of a committee of 

Congress. 

(2) An Inspector General. 

(3) The Government Accountability 

Office. 

(4) A Federal employee responsible 

for contract oversight or management at 

the relevant agency. 

(5) An authorized official of the 

Department of Justice or other law 

enforcement agency. 

(6) A court or grand jury. 

(7) A management official or other 

employee of the contractor or 

subcontractor who has the 

responsibility to investigate, discover, or 

address misconduct. 

(c) An employee who initiates or 

provides evidence of contractor or 

subcontractor misconduct in any 

judicial or administrative proceeding 

relating to waste, fraud, or abuse on a 

Federal contract shall be deemed to 

have made a disclosure. 

■ 6. Amend section 3.904 by revising 

the section to read as follows: 

3.904 Complaints. 

■ 7. Add section 3.904–1 to read as 

follows: 

3.904–1 Procedures for filing complaints. 

A contractor or subcontractor 

employee who believes that he or she 

has been discharged, demoted, or 

otherwise discriminated against 

contrary to the policy in 3.903 may 

submit a complaint with the Inspector 

General of the agency concerned. 

Procedures for submitting fraud, waste, 

abuse, and whistleblower complaints 

are generally accessible on agency 

Office of Inspector General Hotline or 

Whistleblower internet sites or the 

complainant may directly contact the 

cognizant Office of the Inspector 

General for submission instructions. A 

complaint by the employee may not be 

brought under 41 U.S.C. 4712 more than 

three years after the date on which the 

alleged reprisal took place. 

■ 8. Add section 3.904–2 to read as 

follows: 

3.904–2 Procedures for investigating 

complaints. 

(a) Investigation of complaints will be 

in accordance with 41 U.S.C. 4712(b). 

(b) Upon completion of the 

investigation, the head of the agency 

shall ensure that the Inspector General 

provides the report of findings to— 

(1) The complainant and any person 

acting on the complainant’s behalf; 

(2) The contractor and/or 

subcontractor alleged to have committed 

the violation; and 

(3) The head of the agency. 

(c) Unless otherwise provided in 

agency procedures, the complainant, 

contractor, and/or subcontractor shall be 

afforded the opportunity to submit a 

written response to the report of 

findings to the head of the agency and 

the Office of Inspector General. 

■ 9. Revise section 3.905 to read as 

follows: 

3.905 Remedies and enforcement of 

orders. 

■ 10. Add section 3.905–1 to read as 

follows: 

3.905–1 Remedies. 

(a) Agency response to Inspector 

General report. Not later than 30 days 

after receiving a report pursuant to 

3.904–2, the head of the agency shall— 

(1) Determine whether sufficient basis 

exists to conclude that the contractor or 

subcontractor has subjected the 

employee who submitted the complaint 

to a reprisal as prohibited by 3.903; and 

(2) Either issue an order denying relief 

or take one or more of the following 

actions: 

(i) Order the contractor or 

subcontractor to take affirmative action 

to abate the reprisal. 

(ii) Order the contractor or 

subcontractor to reinstate the 

complainant-employee to the position 

that the person held before the reprisal, 

together with compensatory damages 

(including back pay), employment 

benefits, and other terms and conditions 

of employment that would apply to the 

person in that position if the reprisal 

had not been taken. 

(iii) Order the contractor or 

subcontractor to pay the complainantemployee an amount equal to the 

aggregate amount of all costs and 

expenses (including attorneys’ fees and 

expert witnesses’ fees) that were 

reasonably incurred by the complainant 

for, or in connection with, bringing the 

complaint regarding the reprisal, as 

determined by the head of the agency. 

(b) Complainant’s right to go to court. 

(1) Paragraph (b)(2) of this section 

applies if— 

(i) The head of the agency issues an 

order denying relief; or 

(ii)(A) The head of the agency has not 

issued an order— 

(1) Within 210 days after the 

submission of the complaint; or 

(2) Within 30 days after the expiration 

of an extension of time granted in 

accordance with 41 U.S.C. 4712(b)(2)(B) 


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for the submission of the report to those 

stated in 3.904–2(b); and 

(B) There is no showing that such 

delay is due to the bad faith of the 

complainant. 

(2) If the conditions in either 

paragraph (b)(1)(i) or (ii) of this section 

are met— 

(i) The complainant shall be deemed 

to have exhausted all administrative 

remedies with respect to the complaint; 

and 

(ii) The complainant may bring a de 

novo action at law or equity against the 

contractor or subcontractor to seek 

compensatory damages and other relief 

available under 41 U.S.C. 4712 in the 

appropriate district court of the United 

States, which shall have jurisdiction 

over such an action without regard to 

the amount in controversy. 

(A) Such an action shall, at the 

request of either party to the action, be 

tried by the court with a jury. 

(B) An action under this authority 

may not be brought more than two years 

after the date on which remedies are 

deemed to have been exhausted. 

(c) Admissibility in evidence. An 

Inspector General determination and an 

agency head order denying relief under 

this section shall be admissible in 

evidence in any de novo action at law 

or equity brought pursuant to 41 U.S.C. 

4712. 

(d) No waiver. The rights and 

remedies provided for in 41 U.S.C. 4712 

may not be waived by any agreement, 

policy, form, or condition of 

employment. 

■ 11. Add section 3.905–2 to read as 

follows: 

3.905–2 Enforcement of orders. 

(a) Whenever a contractor or 

subcontractor fails to comply with an 

order issued under 3.905–1(a)(2), the 

head of the agency concerned shall file 

an action for enforcement of the order 

in the U.S. district court for a district in 

which the reprisal was found to have 

occurred. In any action brought 

pursuant to this authority, the court may 

grant appropriate relief, including 

injunctive relief, compensatory and 

exemplary damages, and attorney fees 

and costs. The complainant-employee 

upon whose behalf an order was issued 

may also file such an action or join in 

an action filed by the head of the 

agency. 

(b) Any person adversely affected or 

aggrieved by an order issued under 

3.905–1(a)(2) may obtain review of the 

order’s conformance with 41 U.S.C. 

4712 and its implementing regulations, 

in the U.S. court of appeals for a circuit 

in which the reprisal is alleged in the 

order to have occurred. No petition 

seeking such review may be filed more 

than 60 days after issuance of the order 

by the head of the agency. Filing such 

an appeal shall not act to stay the 

enforcement of the order of the head of 

an agency, unless a stay is specifically 

entered by the court. 

■ 12. Revise section 3.906 to read as 

follows: 

3.906 Contract clause. 

(a) Except as provided in paragraph 

(b) of this section, the contracting officer 

shall insert the clause at 52.203–17, 

Contractor Employee Whistleblower 

Rights, in all solicitations and contracts 

that exceed the simplified acquisition 

threshold. 

(b) The clause prescription in 

paragraph (a) of this section does not 

apply to solicitations and contracts of 

DoD, NASA, the Coast Guard, or 

applicable elements of the intelligence 

community (see 3.900(a)). 

3.907–7 [Amended] 

■ 13. Amend section 3.907–7 by 

removing ‘‘Reinvestment Act of 2009 

in’’ and adding ‘‘Reinvestment Act of 

2009, in’’ in its place. 

3.908 [Removed and reserved] 

■ 14. Remove and reserve section 3.908. 

3.908–1 through 3.908–9 [Removed] 

■ 15. Remove sections 3.908–1 through 

3.908–9. 

PART 31—CONTRACT COST 

PRINCIPLES AND PROCEDURES 

31.205–47 [Amended] 

■ 16. Amend section 31.205–47 by— 

■ a. In paragraph (a), in the definition of 

‘‘Costs’’ by removing ‘‘or others retained 

by the contractor to assist it;’’ and 

adding ‘‘or others retained by the 

contractor or subcontractor to assist it;’’ 

in its place; 

■ b. In the introductory text of 

paragraph (b), by removing ‘‘law or 

regulation by the contractor’’ and 

adding ‘‘law or regulation by the 

contractor or subcontractor’’ in its place; 

■ c. In paragraph (b)(2) by removing 

‘‘either a finding of contractor liability’’ 

and adding ‘‘either a finding of 

contractor or subcontractor liability’’ in 

its place; 

■ d. In paragraph (b)(3)(i), by removing 

‘‘the contractor;’’ and adding ‘‘the 

contractor or subcontractor;’’ in its 

place; 

■ e. In paragraph (c)(1), by removing 

‘‘between the contractor’’ and adding 

‘‘between the contractor or 

subcontractor’’ in its place; 

■ f. In paragraph (c)(2)(i), by removing 

‘‘incurred by the contractor’’ and adding 

‘‘incurred by the contractor or 

subcontractor’’ in its place; 

■ g. In paragraph (d)(1) by removing 

‘‘Federal contract; or’’ and adding 

‘‘Federal contract or subcontract; or’’ in 

its place; 

■ h. In the introductory paragraph of 

paragraph (f) by removing ‘‘connection 

with’’ and adding ‘‘connection with the 

following’’ in its place; 

■ i. In paragraph (f)(4) by removing ‘‘the 

contractor under’’ and adding ‘‘the 

contractor or subcontractor under’’ in its 

place; and removing ‘‘the contractor 

was’’ and adding ‘‘the contractor or 

subcontractor was’’ in its place; 

■ j. In the introductory paragraph of 

paragraph (f)(5) by removing 

‘‘contractors arising from either’’ and 

adding ‘‘contractors or subcontractors 

arising from either—’’ in its place; 

■ k. In paragraph (f)(5)(i) by removing 

‘‘an agreement’’ and adding ‘‘An 

agreement’’ in its place; 

■ l. In paragraph (f)(5)(ii) by removing 

‘‘dual sourcing’’ and adding ‘‘Dual 

sourcing’’ and removing ‘‘except when’’ 

and adding ‘‘except when—’’ in its 

place; 

■ m. In paragraph (f)(5)(ii)(A) by 

removing ‘‘incurred as’’ and adding 

‘‘Incurred as’’, removing ‘‘contract or’’ 

and adding ‘‘contract or subcontract, or’’ 

in its place, and removing ‘‘contracting 

officer, or’’ and adding ‘‘contracting 

officer; or’’ in its place; 

■ n. In paragraph (f)(5)(ii)(B) by 

removing ‘‘when agreed’’ and adding 

‘‘When agreed’’ in its place; 

■ o. In paragraph (f)(6) by removing 

‘‘contract.’’ and adding ‘‘contract or 

subcontract.’’ in its place; 

■ p. In paragraph (f)(7) by removing 

‘‘the contractor is’’ and adding ‘‘the 

contractor or subcontractor is’’ in its 

place; 

■ q. In paragraph (g) by removing 

‘‘contractor separately.’’ and adding 

‘‘contractor or subcontractor 

separately.’’ in its place, and removing 

‘‘contractor to repay all’’ and adding 

‘‘contractor or subcontractor to repay 

all’’ in its place. 

■ 17. Amend section 31.603 by revising 

paragraph (b)(15) to read as follows: 

31.603 Requirements. 

* * * * * 

(b) * * * 

(15) Unless any of the exceptions at 

31.205–47(c) or (d) apply, costs incurred 

by a contractor or subcontractor in 

connection with any criminal, civil, or 

administrative proceedings that result in 

dispositions described at 31.205– 

47(b)(1) through (5) commenced by: A 

Federal, State, local, or foreign 

government, for a violation of, or failure 

to comply with, law or regulation by the 

contractor or subcontractor (including 

its agents or employees); a contractor or 


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66228 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules 

subcontractor employee submitting a 

whistleblower complaint of reprisal in 

accordance with 41 U.S.C. 4712 or 10 

U.S.C. 2409; or a third party in the name 

of the United States under the False 

Claims Act, 31 U.S.C. 3730. For any 

such proceeding that does not result in 

a disposition described at 31.205– 

47(b)(1) through (5), or to which 31.205– 

47(c) exceptions apply, the cost of that 

proceeding shall be subject to the 

limitations in 31.205–47(e). 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 18. Amend section 52.203–17 by— 

■ a. Revising the section heading; 

■ b. Removing from the introductory 

text ‘‘3.908–9’’ and adding ‘‘3.906’’ in its 

place; 

■ c. Revising the date of the clause; and 

■ d. Revising paragraphs (a) and (b) to 

read as follows: 

52.203–17 Contractor Employee 

Whistleblower Rights. 

* * * * * 

Contractor Employee Whistleblower Rights 

(Date) 

(a) This contract and employees working 

on this contract will be subject to the 

whistleblower rights and remedies 

established at 41 U.S.C. 4712 and FAR 3.901 

through 3.905. 

(b) The Contractor shall inform its 

employees in writing, in the predominant 

language of the workforce, of employee 

whistleblower rights and protections under 

41 U.S.C. 4712, as described in FAR 3.901 

through 3.905. 

* * * * * 

■ 19. Amend section 52.212–4 by 

revising the date of the clause; and 

removing from paragraph (r) ‘‘41 U.S.C. 

4712 and’’. The revised text reads as 

follows: 

52.212–4 Contract Terms and 

Conditions—Commercial Items. 

* * * * * 

Contract Terms and Conditions— 

Commercial Items (Date) 

* * * * * 

■ 20. Amend section 52.212–5 by: 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraphs (b)(4) 

through (60) as paragraphs (b)(5) 

through (61), respectively; 

■ c. Adding a new paragraph (b)(4); 

■ d. Redesignating paragraphs (e)(1)(ii) 

through (xxii) as paragraphs (e)(1)(iii) 

through (xxiii), respectively; 

■ e. Adding a new paragraph (e)(1)(ii); 

■ f. Revising the date of Alternate II; 

■ g. Redesignating paragraphs of 

Alternate II; (e)(1)(ii)(C) through (T) as 

paragraphs (e)(1)(ii)(D) through (U), 

respectively; and 

■ h. Adding a new paragraph 

(e)(1)(ii)(C). 

The revised and added text reads as 

follows: 

52.212–5 Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

Contract Terms and Conditions Required to 

Implement Statutes or Executive Orders— 

Commercial Items (Date) 

* * * * * 

(b) * * * 

ll(4) 52.203–17, Contractor 

Employee Whistleblower Rights (Date) 

(41 U.S.C. 4712) 

* * * * * 

(e)(1) * * * 

(ii) 52.203–17, Contractor Employee 

Whistleblower Rights (Date) (41 U.S.C. 

4712) 

* * * * * 

Alternate II (Date). * * * 

* * * * * 

(e)(1) * * * 

(ii) * * * 

(C) 52.203–17, Contractor Employee 

Whistleblower Rights (Date) (41 U.S.C. 

4712) 

* * * * * 

■ 21. Amend section 52.213–4 by 

revising the date of the clause and 

paragraph (a)(2)(viii) to read as follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

Terms and Conditions—Simplified 

Acquisitions (Other Than Commercial Items) 

(Date) 

(a) * * * 

(2) * * * 

(viii) 52.244–6, Subcontracts for 

Commercial Items (Date). 

* * * * * 

■ 22. Amend section 52.244–6 by— 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraphs (c)(1)(iii) 

through (c)(1)(xix) as paragraphs 

(c)(1)(iv) through (c)(1)(xx), respectively; 

■ c. Adding a new paragraph (c)(1)(iii). 

The revised and added text reads as 

follows: 

52.244–6 Subcontracts for Commercial 

Items. 

* * * * * 

Subcontracts for Commercial Items (Date) 

* * * * * 

(c)(1) * * * 

(iii) 52.203–17, Contractor Employee 

Whistleblower Rights (Date) (41 U.S.C. 

4712) relating to whistleblower 

protections, if the subcontract is over 

the simplified acquisition threshold; 

this clause does not apply to contracts 

of DoD, NASA, the Coast Guard, or 

applicable elements of the intelligence 

community–see FAR 3.900(a). 

* * * * * 

[FR Doc. 2018–27493 Filed 12–21–18; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2010–0012] 

RIN 2127–AK58 

Federal Motor Vehicle Safety 

Standards; Motor Vehicle Brake Fluids 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Proposed rule; withdrawal. 

SUMMARY: NHTSA withdraws its notice 

of proposed rulemaking (NPRM), 

published on February 3, 2010, 

proposing amendments to the Federal 

Motor Vehicle Safety Standard (FMVSS) 

No. 116, Motor Vehicle Brake Fluids. 

Since publication of the NPRM and after 

review of the comments, the agency has 

determined that updates and corrections 

outside the scope of the notice are 

necessary in order to publish a final 

rule. Based on this, the agency has 

decided to withdraw the proposal to 

amend FMVSS No. 116. 

DATES: The NPRM ‘‘Federal Motor 

Vehicle Safety Standards; Motor 

Vehicles Brake Fluids,’’ RIN 2027– 

AK58, published February 3, 2010 (75 

FR 5553), is withdrawn as of December 

26, 2018. 

ADDRESSES: Electronic Access: You can 

view and download related documents 

and public comments by going to the 

website https://www.regulations.gov. 

Enter the docket number NHTSA–2010– 

0012 in the search field. 

FOR FURTHER INFORMATION CONTACT: 

Joshua Fikentscher, Office of Crash 

Avoidance Standards (Phone: 202–366– 

1810; Fax: 202–493–0073) or Sara R. 

Bennett, Office of the Chief Counsel 

(Phone: 202–366–2992; Fax: 202–366– 

3820). You may send mail to both of 

these officials at the National Highway 

Traffic Safety Administration, 1200 New 

Jersey Avenue SE, Washington, DC 

20590. 

SUPPLEMENTARY INFORMATION: 

Background 

Federal Motor Vehicle Safety 

Standard (FMVSS) No. 116, ‘‘Motor 

Vehicle Brake Fluids,’’ specifies 


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