2408 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

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–D037. 

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 203 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 203 is 

amended as follows: 

PART 203—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 1. The authority citation for 48 CFR 

part 203 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 203.170 is amended by 

revising paragraph (a) to read as follows: 

203.170 Business practices. 

* * * * * 

(a) Senior leaders shall not perform 

multiple roles in source selection for a 

major weapon system or major service 

acquisition. Departments and agencies 

shall certify every 2 years that no senior 

leader has performed multiple roles in 

the acquisition of a major weapon 

system or major service. Completed 

certifications shall be forwarded to the 

Director, Defense Procurement, in 

accordance with the procedures at PGI 

203.170. 

* * * * * 

[FR Doc. E9–666 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203, 209, and 252 

RIN 0750–AG07 

Defense Federal Acquisition 

Regulation Supplement; Senior DoD 

Officials Seeking Employment With 

Defense Contractors (DFARS Case 

2008–D007) 

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 847 of 

the National Defense Authorization Act 

for Fiscal Year 2008. Section 847 

addresses requirements for senior DoD 

officials to obtain a post-employment 

ethics opinion before accepting a 

position from a DoD contractor within 

two years after leaving DoD service. 

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–D007, 

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–D007 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 

This interim rule implements Section 

847 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). Section 847 requires 

that a DoD official, who has participated 

personally and substantially in a DoD 

acquisition exceeding $10 million or 

who has held a key acquisition position, 

must obtain a written opinion from a 

DoD ethics counselor regarding the 

activities that the official may undertake 

on behalf of a DoD contractor within 

two years after leaving DoD service. In 

addition, Section 847 prohibits a DoD 

contractor from providing compensation 

to such a DoD official without first 

determining that the official has 

received or appropriately requested a 

post-employment ethics opinion. 

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 verify that a 

prospective employee has received or 

requested the appropriate DoD ethics 

opinion should involve minimal effort 

on the part of a contractor. 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–D007. 

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 847 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). Section 847 requires 

that DoD officials that have participated 

personally and substantially in a DoD 

acquisition exceeding $10 million, or 

that have held certain key acquisition 

positions, must obtain a written opinion 

from the appropriate DoD ethics 

mstockstill on PROD1PC66 with RULES

Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2409 

counselor before accepting 

compensation from a DoD contractor 

within two years after leaving DoD 

service. In addition, Section 847 

prohibits a DoD contractor from 

providing compensation to such a DoD 

official without first determining that 

the official has received or appropriately 

requested a post-employment ethics 

opinion. 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, 

209, and 252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR Parts 203, 209, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 203, 209, 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. Section 203.104–4 is added to read 

as follows: 

203.104–4 Disclosure, protection, and 

marking of contractor bid or proposal 

information and source selection 

information. 

(d)(3) For purposes of FAR 3.104– 

4(d)(3) only, DoD follows the 

notification procedures in FAR 27.404– 

5(a). However, FAR 27.404–5(a)(1) does 

not apply to DoD. 

203.104–5 [Removed] 

■ 3. Section 203.104–5 is removed. 

■ 4. Sections 203.171 through 203.171– 

4 are added to read as follows: 

203.171 Senior DoD officials seeking 

employment with defense contractors. 

203.171–1 Scope. 

This section implements Section 847 

of the National Defense Authorization 

Act for Fiscal Year 2008 (Public Law 

110–181). 

203.171–2 Definition. 

Covered DoD official as used in this 

section, is defined in the clause at 

252.203–7000, Requirements Relating to 

Compensation of Former DoD Officials. 

203.171–3 Policy. 

(a) A DoD official covered by the 

requirements of Section 847 of Public 

Law 110–181 (a ‘‘covered DoD official’’) 

who, within 2 years after leaving DoD 

service, expects to receive compensation 

from a DoD contractor, shall, prior to 

accepting such compensation, request a 

written opinion from the appropriate 

DoD ethics counselor regarding the 

applicability of post-employment 

restrictions to activities that the official 

may undertake on behalf of a contractor. 

(b) A DoD contractor may not 

knowingly provide compensation to a 

covered DoD official within 2 years after 

the official leaves DoD service unless 

the contractor first determines that the 

official has received, or has requested at 

least 30 days prior to receiving 

compensation from the contractor, the 

post-employment ethics opinion 

described in paragraph (a) of this 

section. 

(c) If a DoD contractor knowingly fails 

to comply with the requirements of the 

clause at 252.203–7000, administrative 

and contractual actions may be taken, 

including cancellation of a 

procurement, rescission of a contract, or 

initiation of suspension or debarment 

proceedings. 

203.171–4 Contract clause. 

Use the clause at 252.203–7000, 

Requirements Relating to Compensation 

of Former DoD Officials, in all 

solicitations and contracts. 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 5. Section 209.406–2 is amended as 

follows: 

■ a. By redesignating paragraph (a) as 

paragraph (1); and 

■ b. By adding paragraph (2) to read as 

follows: 

209.406–2 Causes for debarment. 

* * * * * 

(2) Any contractor that knowingly 

provides compensation to a former DoD 

official in violation of Section 847 of the 

National Defense Authorization Act for 

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

face suspension and debarment 

proceedings in accordance with 41 

U.S.C. 423(e)(3)(A)(iii). 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Section 252.203–7000 is added to 

read as follows: 

252.203–7000 Requirements Relating to 

Compensation of Former DoD Officials. 

As prescribed in 203.171–4, use the 

following clause: 

REQUIREMENTS RELATING TO 

COMPENSATION OF FORMER DOD 

OFFICIALS (JAN 2009) 

(a) Definition. Covered DoD official, as 

used in this clause, means an individual 

that— 

(1) Leaves or left DoD service on or after 

January 28, 2008; and 

(2)(i) Participated personally and 

substantially in an acquisition as defined in 

41 U.S.C. 403(16) with a value in excess of 

$10 million, and serves or served— 

(A) In an Executive Schedule position 

under subchapter II of chapter 53 of Title 5, 

United States Code; 

(B) In a position in the Senior Executive 

Service under subchapter VIII of chapter 53 

of Title 5, United States Code; or 

(C) In a general or flag officer position 

compensated at a rate of pay for grade O–7 

or above under section 201 of Title 37, 

United States Code; or 

(ii) Serves or served in DoD in one of the 

following positions: Program manager, 

deputy program manager, procuring 

contracting officer, administrative 

contracting officer, source selection 

authority, member of the source selection 

evaluation board, or chief of a financial or 

technical evaluation team for a contract in an 

amount in excess of $10 million. 

(b) The Contractor shall not knowingly 

provide compensation to a covered DoD 

official within 2 years after the official leaves 

DoD service, without first determining that 

the official has sought and received, or has 

not received after 30 days of seeking, a 

written opinion from the appropriate DoD 

ethics counselor regarding the applicability 

of post-employment restrictions to the 

activities that the official is expected to 

undertake on behalf of the Contractor. 

(c) Failure by the Contractor to comply 

with paragraph (b) of this clause may subject 

the Contractor to rescission of this contract, 

suspension, or debarment in accordance with 

41 U.S.C. 423(e)(3). 

(End of clause) 

■ 7. Section 252.212–7001 is amended 

as follows: 

■ a. By revising the clause date to read 

‘‘(JAN 2009)’’; 

■ b. By redesignating paragraphs (b)(1) 

through (21) as paragraphs (b)(2) 

through (22) respectively; 

■ c. By adding a new paragraph (b)(1); 

■ d. In newly designated paragraph 

(b)(5) by removing ‘‘(JUN 2005)’’ and 

adding in its place ‘‘(JAN 2009)’’; and 

■ e. In newly designated paragraph 

(b)(13)(i) by removing ‘‘(MAR 2007)’’ 

and adding in its place ‘‘(JAN 2009)’’. 

The new paragraph (b)(1) reads as 

follows: 

252.212–7001 Contract Terms and 

Conditions Required to Implement Statutes 

or Executive Orders Applicable to Defense 

Acquisitions of Commercial Items. 

* * * * * 

(b) * * * 

(1) lll252.203–7000, 

Requirements Relating to Compensation 

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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. 

mstockstill on PROD1PC66 with RULES