2410 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

of Former DoD Officials (JAN 2009) 

(Section 847 of Pub. L. 110–181). 

* * * * * 

[FR Doc. E9–679 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203 and 252 

RIN 0750–AG09 

Defense Federal Acquisition 

Regulation Supplement; Whistleblower 

Protections for Contractor Employees 

(DFARS Case 2008–D012) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement Section 846 of 

the National Defense Authorization Act 

for Fiscal Year 2008 and Section 842 of 

the National Defense Authorization Act 

for Fiscal Year 2009. These laws address 

protections for contractor employees 

who disclose information to 

Government officials with regard to 

waste or mismanagement, danger to 

public health or safety, or violation of 

law related to a DoD contract. 

DATES: Effective date: January 15, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before March 16, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D012, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2008–D012 in the subject 

line of the message. 

Æ Fax: 703–602–7887. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Angie 

Sawyer, OUSD (AT&L) DPAP (DARS), 

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Æ 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 http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angie Sawyer, 703–602–8484. 

SUPPLEMENTARY INFORMATION: 

A. Background 

10 U.S.C. 2409 and 41 U.S.C. 251 et 

seq. prohibit Government contractors 

from discharging, demoting, or 

otherwise discriminating against 

employees as a reprisal for disclosing to 

Government officials information 

relating to a substantial violation of law 

related to a contract. 10 U.S.C. 2409 and 

41 U.S.C. 251 et seq. are implemented 

in Subpart 3.9 of the Federal 

Acquisition Regulation. Section 846 of 

the National Defense Authorization Act 

for Fiscal Year 2008 (Pub. L. 110–181) 

and Section 842 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417) amended 10 U.S.C. 

2409 to establish protections for DoD 

contractor employees that differ from 

those specified in 41 U.S.C. 251 et seq. 

and the Federal Acquisition Regulation. 

Therefore, this interim rule adds a new 

DFARS subpart to address DoD 

requirements related to whistleblower 

protections. The differences between the 

FAR and the new DFARS policy 

include: Expansion of the types of 

information to which the protections 

apply; expansion of the categories of 

Government officials to whom 

information may be disclosed without 

reprisal; establishment of time periods 

within which the Inspector General and 

the agency head must take action with 

regard to a complaint filed by a 

contractor employee; establishment of a 

de novo right of action in federal district 

court for contractor employees who 

have exhausted their administrative 

remedies under 10 U.S.C. 2409; and 

addition of a contract clause requiring 

contractors to inform employees in 

writing of their whistleblower rights and 

protections. 

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. 

Although the rule contains a new 

requirement for contractors to inform 

employees in writing of their 

whistleblower rights and protections, 

compliance with this requirement is not 

expected to have a significant cost or 

administrative impact on contractors. 

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 subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2008–D012. 

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. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. This interim rule implements 

Section 846 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181) and Section 842 of the 

National Defense Authorization Act for 

Fiscal Year 2009 (Pub. L. 110–417). 

These laws address whistleblower 

protections for DoD contractor 

employees and require DoD to ensure 

that DoD contractors inform their 

employees in writing of whistleblower 

rights and protections. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 203 and 

252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 203 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 203 and 252 continues to read as 

follows: 

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

Chapter 1. 

PART 203—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 2. Subpart 203.9 is added to read as 

follows: 

Subpart 203.9—Whistleblower Protections 

for Contractor Employees 

Sec. 

203.900 Scope of subpart. 

203.903 Policy. 

203.904 Procedures for filing complaints. 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2411 

203.905 Procedures for investigating 

complaints. 

203.906 Remedies. 

203.970 Contract clause. 

Subpart 203.9—Whistleblower 

Protections for Contractor Employees 

203.900 Scope of subpart. 

This subpart implements 10 U.S.C. 

2409 as amended by Section 846 of the 

National Defense Authorization Act for 

Fiscal Year 2008 (Pub. L. 110–181) and 

Section 842 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417). 

203.903 Policy. 

The following policy applies to DoD 

instead of the policy at FAR 3.903: 

(1) 10 U.S.C. 2409 prohibits 

contractors from discharging, demoting, 

or otherwise discriminating against an 

employee as a reprisal for disclosing, to 

any of the following entities, 

information that the employee 

reasonably believes is evidence of gross 

mismanagement of a DoD contract, a 

gross waste of DoD funds, a substantial 

and specific danger to public health or 

safety, or a violation of law related to a 

DoD contract (including the competition 

for or negotiation of a contract): 

(i) A Member of Congress. 

(ii) A representative of a committee of 

Congress. 

(iii) An Inspector General that 

receives funding from or has oversight 

over contracts awarded for or on behalf 

of DoD. 

(iv) The Government Accountability 

Office. 

(v) A DoD employee responsible for 

contract oversight or management. 

(vi) An authorized official of an 

agency or the Department of Justice. 

(2) A contracting officer who receives 

a complaint of reprisal of the type 

described in paragraph (1) of this 

section shall forward it to legal counsel 

or to the appropriate party in 

accordance with agency procedures. 

203.904 Procedures for filing complaints. 

In addition to the procedures at FAR 

3.904, any contractor employee who 

believes that he or she has been 

discharged, demoted, or otherwise 

discriminated against contrary to the 

policy in 203.903 may file a complaint 

with the DoD Inspector General. 

203.905 Procedures for investigating 

complaints. 

The following procedures apply to 

DoD instead of the procedures at FAR 

3.905: 

(1) The DoD Inspector General will 

make a determination as to whether a 

complaint is frivolous or merits further 

investigation. 

(2) If the DoD Inspector General 

determines that a complaint merits 

further investigation, the DoD Inspector 

General will— 

(i) Notify the complainant, the 

contractor alleged to have committed 

the violation, and the head of the 

agency; 

(ii) Conduct an investigation; and 

(iii) Provide a written report of 

findings to the complainant, the 

contractor alleged to have committed 

the violation, and the head of the 

agency. 

(3) The DoD Inspector General— 

(i) Will determine that the complaint 

is frivolous or will submit the report 

addressed in paragraph (2) of this 

section within 180 days after receiving 

the complaint; and 

(ii) If unable to submit a report within 

180 days, will submit the report within 

the additional time period to which the 

person submitting the complaint agrees. 

203.906 Remedies. 

(1) Not later than 30 days after 

receiving a DoD Inspector General 

report in accordance with 203.905, the 

head of the agency— 

(i) Shall determine whether sufficient 

basis exists to conclude that the 

contractor has subjected one of its 

employees to a reprisal as prohibited by 

203.903; and 

(ii) Shall issue an order denying relief 

or shall take one or more of the actions 

specified in FAR 3.906(a). 

(2) If the head of the agency issues an 

order denying relief or has not issued an 

order within 210 days after the 

submission of the complaint or within 

30 days after the expiration of an 

extension of time granted in accordance 

with 203.905(3)(ii), and there is no 

showing that such delay is due to the 

bad faith of the complainant— 

(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 to seek compensatory 

damages and other relief available under 

10 U.S.C. 2409 in the appropriate 

district court of the United States, 

which shall have jurisdiction over such 

an action without regard to the amount 

in controversy. Such an action shall, at 

the request of either party to the action, 

be tried by the court with a jury. 

(3) An Inspector General 

determination and an agency head order 

denying relief under paragraph (2) of 

this section shall be admissible in 

evidence in any de novo action at law 

or equity brought pursuant to 10 U.S.C. 

2409(c). 

203.970 Contract clause. 

Use the clause at 252.203–7002, 

Requirement to Inform Employees of 

Whistleblower Rights, in all 

solicitations and contracts. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Section 252.203–7002 is added to 

read as follows: 

252.203–7002 Requirement to Inform 

Employees of Whistleblower Rights. 

As prescribed in 203.970, use the 

following clause: 

REQUIREMENT TO INFORM 

EMPLOYEES OF WHISTLEBLOWER 

RIGHTS (JAN 2009) 

The Contractor shall inform its employees 

in writing of employee whistleblower rights 

and protections under 10 U.S.C. 2409, as 

described in Subpart 203.9 of the Defense 

Federal Acquisition Regulation Supplement. 

(End of clause) 

[FR Doc. E9–672 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

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. 

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) 

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