[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2411-2413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-671]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204 and 252

RIN 0750-AF98


Defense Federal Acquisition Regulation Supplement; U.S.-
International Atomic Energy Agency Additional Protocol (DFARS Case 
2004-D003)

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 add a contract clause 
requiring a contractor to notify DoD if the contractor is required to 
report its activities under the U.S.-International Atomic Energy Agency 
Additional Protocol. The clause will be included in contracts for 
research and development or major defense acquisition programs 
involving fissionable materials, other radiological source materials, 
or technologies directly related to nuclear power production.

DATES: Effective Date: January 15, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, Defense 
Acquisition Regulations System, OUSD (AT&L)

[[Page 2412]]

DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-
3062. Telephone 703-602-0311; facsimile 703-602-7887. Please cite DFARS 
Case 2004-D003.

SUPPLEMENTARY INFORMATION: 

A. Background

    Under the U.S.-International Atomic Energy Agency Additional 
Protocol (U.S.-IAEA AP), the United States is required to declare a 
wide range of public and private nuclear-related activities to the IAEA 
and potentially provide access to IAEA inspectors for verification 
purposes. The Department of Commerce issued a final rule at 73 FR 65120 
on October 31, 2008, to implement the U.S.-IAEA AP.
    The U.S.-IAEA AP permits the United States unilaterally to declare 
exclusions from inspection requirements for activities with direct 
national security significance. This DFARS rule contains a contract 
clause requiring a contractor to notify the applicable DoD program 
manager if the contractor is required to report any of its activities 
under the U.S.-IAEA AP. Upon such a notification, DoD will determine if 
access may be granted to IAEA inspectors, or if a national security 
exclusion should be applied.
    DoD published a proposed rule at 73 FR 48185 on August 18, 2008. 
DoD received no comments on the proposed rule. DoD has adopted the 
proposed rule as a final rule with minor changes to clarify the text 
and to update references to a related DoD publication.
    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 rule applies only to those DoD contractors involved in 
certain nuclear-related activities. The rule provides for exceptions to 
inspection requirements that might otherwise apply to such contractors, 
if DoD determines that an exception is necessary in the interest of 
national security.

C. Paperwork Reduction Act

    This final rule contains a new information collection requirement. 
The Office of Management and Budget has approved the information 
collection under Control Number 0704-0454.

List of Subjects in 48 CFR Parts 204 and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 204 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 204 and 252 continues to 
read as follows:

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

PART 204--ADMINISTRATIVE MATTERS

0
2. Sections 204.470 through 204.470-3 are added to read as follows:


204.470  U.S.-International Atomic Energy Agency Additional Protocol.


204.470-1  General.

    Under the U.S.-International Atomic Energy Agency Additional 
Protocol (U.S.-IAEA AP), the United States is required to declare a 
wide range of public and private nuclear-related activities to the IAEA 
and potentially provide access to IAEA inspectors for verification 
purposes.


204.470-2  National security exclusion.

    (a) The U.S.-IAEA AP permits the United States unilaterally to 
declare exclusions from inspection requirements for activities, or 
locations or information associated with such activities, with direct 
national security significance.
    (b) In order to ensure that all relevant activities are reviewed 
for direct national security significance, both current and former 
activities, and associated locations or information, are to be 
considered for applicability for a national security exclusion.
    (c) If a DoD program manager receives notification from a 
contractor that the contractor is required to report any of its 
activities in accordance with the U.S.-IAEA AP, the program manager 
will--
    (1) Conduct a security assessment to determine if, and by what 
means, access may be granted to the IAEA; or
    (2) Provide written justification to the component or agency treaty 
office for application of the national security exclusion at that 
location to exclude access by the IAEA, in accordance with DoD 
Instruction 2060.03, Application of the National Security Exclusion to 
the Agreements Between the United States of America and the 
International Atomic Energy Agency for the Application of Safeguards in 
the United States of America.


204.470-3  Contract clause.

    Use the clause at 252.204-7010, Requirement for Contractor to 
Notify DoD if the Contractor's Activities are Subject to Reporting 
Under the U.S.-International Atomic Energy Agency Additional Protocol, 
in solicitations and contracts for research and development or major 
defense acquisition programs involving--
    (a) Any fissionable materials (e.g., uranium, plutonium, neptunium, 
thorium, americium);
    (b) Other radiological source materials; or
    (c) Technologies directly related to nuclear power production, 
including nuclear or radiological waste materials.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Section 252.204-7010 is added to read as follows:


252.204-7010  Requirement for Contractor to Notify DoD if the 
Contractor's Activities are Subject to Reporting Under the U.S.-
International Atomic Energy Agency Additional Protocol.

    As prescribed in 204.470-3, use the following clause:
REQUIREMENT FOR CONTRACTOR TO NOTIFY DOD IF THE CONTRACTOR'S ACTIVITIES 
ARE SUBJECT TO REPORTING UNDER THE U.S.-INTERNATIONAL ATOMIC ENERGY 
AGENCY ADDITIONAL PROTOCOL (JAN 2009)
    (a) If the Contractor is required to report any of its 
activities in accordance with Department of Commerce regulations (15 
CFR part 781 et seq.) or Nuclear Regulatory Commission regulations 
(10 CFR part 75) in order to implement the declarations required by 
the U.S.-International Atomic Energy Agency Additional Protocol 
(U.S.-IAEA AP), the Contractor shall--
    (1) Immediately provide written notification to the following 
DoD Program Manager:
    [Contracting Officer to insert Program Manager's name, mailing 
address, e-mail address, telephone number, and facsimile number];
    (2) Include in the notification--
    (i) Where DoD contract activities or information are located 
relative to the activities or information to be declared to the 
Department of Commerce or the Nuclear Regulatory Commission; and
    (ii) If or when any current or former DoD contract activities 
and the activities to be declared to the Department of Commerce or 
the Nuclear Regulatory Commission have been or will be co-located or 
located near enough to one another to result in disclosure of the 
DoD activities during an IAEA inspection or visit; and
    (3) Provide a copy of the notification to the Contracting 
Officer.

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    (b) After receipt of a notification submitted in accordance with 
paragraph (a) of this clause, the DoD Program Manager will--
    (1) Conduct a security assessment to determine if and by what 
means access may be granted to the IAEA; or
    (2) Provide written justification to the component or agency 
treaty office for a national security exclusion, in accordance with 
DoD Instruction 2060.03, Application of the National Security 
Exclusion to the Agreements Between the United States of America and 
the International Atomic Energy Agency for the Application of 
Safeguards in the United States of America. DoD will notify the 
Contractor if a national security exclusion is applied at the 
Contractor's location to prohibit access by the IAEA.
    (c) If the DoD Program Manager determines that a security 
assessment is required--
    (1) DoD will, at a minimum--
    (i) Notify the Contractor that DoD officials intend to conduct 
an assessment of vulnerabilities to IAEA inspections or visits;
    (ii) Notify the Contractor of the time at which the assessment 
will be conducted, at least 30 days prior to the assessment;
    (iii) Provide the Contractor with advance notice of the 
credentials of the DoD officials who will conduct the assessment; 
and
    (iv) To the maximum extent practicable, conduct the assessment 
in a manner that does not impede or delay operations at the 
Contractor's facility; and
    (2) The Contractor shall provide access to the site and shall 
cooperate with DoD officials in the assessment of vulnerabilities to 
IAEA inspections or visits.
    (d) Following a security assessment of the Contractor's 
facility, DoD officials will notify the Contractor as to--
    (1) Whether the Contractor's facility has any vulnerabilities 
where potentially declarable activities under the U.S.-IAEA AP are 
taking place;
    (2) Whether additional security measures are needed; and
    (3) Whether DoD will apply a national security exclusion.
    (e) If DoD applies a national security exclusion, the Contractor 
shall not grant access to IAEA inspectors.
    (f) If DoD does not apply a national security exclusion, the 
Contractor shall apply managed access to prevent disclosure of 
program activities, locations, or information in the U.S. 
declaration.
    (g) The Contractor shall not delay submission of any reports 
required by the Department of Commerce or the Nuclear Regulatory 
Commission while awaiting a DoD response to a notification provided 
in accordance with this clause.
    (h) The Contractor shall incorporate the substance of this 
clause, including this paragraph (h), in all subcontracts that are 
subject to the provisions of the U.S.-IAEA AP.

    (End of clause)

[FR Doc. E9-671 Filed 1-14-09; 8:45 am]
BILLING CODE 5001-08-P