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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2412 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

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. 

■ Therefore, 48 CFR parts 204 and 252 

are amended as follows: 

■ 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 

■ 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 

■ 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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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2413 

(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 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 209 

RIN 0750–AG22 

Defense Federal Acquisition 

Regulation Supplement; List of Firms 

Owned or Controlled by the 

Government of a Terrorist Country 

(DFARS Case 2008–D025) 

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 address procedures for 

notifying the appropriate DoD office of 

any information indicating that a firm or 

a subsidiary of a firm may be owned or 

controlled by the Government of a 

terrorist country. The notifications will 

facilitate maintenance of a list of such 

firms, as required by statute. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3C132, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–0328; 

facsimile 703–602–7887. Please cite 

DFARS Case 2008–D025. 

SUPPLEMENTARY INFORMATION: 

A. Background 

10 U.S.C. 2327(d) requires DoD to 

develop and maintain a list of all firms, 

and subsidiaries of firms, that are 

owned or controlled by the government 

of a terrorist country and that, therefore, 

are subject to a prohibition on DoD 

contract awards. 

To facilitate maintenance of the list 

required by 10 U.S.C. 2327(d), this final 

rule amends DFARS 209.104–1 and 

209.104–70 to address DoD procedures 

for forwarding, to the appropriate office, 

any information indicating that a firm or 

a subsidiary of a firm may be owned or 

controlled by the government of a 

terrorist country. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment under 

41 U.S.C. 418b is not required. 

However, DoD will consider comments 

from small entities concerning the 

affected DFARS subpart in accordance 

with 5 U.S.C. 610. Such comments 

should cite DFARS Case 2008–D025. 

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. 

List of Subjects in 48 CFR Part 209 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 209 is 

amended as follows: 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 1. The authority citation for 48 CFR 

part 209 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 209.104–1 is amended by 

adding paragraph (g)(i)(C) to read as 

follows: 

209.104–1 General standards. 

* * * * * 

(g)(i) * * * 

(C) Forward any information 

indicating that a firm or a subsidiary of 

a firm may be owned or controlled by 

the government of a terrorist country, 

through agency channels, to: Deputy 

Director, Defense Procurement (Contract 

Policy and International Contracting, 

OUSD(AT&L)DPAP(CPIC)), 3060 

Defense Pentagon, Washington, DC 

20301–3060. 

* * * * * 

■ 3. Section 209.104–70 is amended in 

paragraph (a) by revising the second 

sentence to read as follows: 

209.104–70 Solicitation provisions. 

(a) * * * Any disclosure that the 

government of a terrorist country has a 

significant interest in an offeror or a 

subsidiary of an offeror shall be 

forwarded through agency channels to 

the address at 209.104–1(g)(i)(C). 

* * * * * 

[FR Doc. E9–670 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

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