[Federal Register Volume 79, Number 40 (Friday, February 28, 2014)]
[Rules and Regulations]
[Pages 11336-11337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04158]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203 and 252

RIN 0750-AH97


Defense Federal Acquisition Regulation Supplement: Enhancement of 
Contractor Employee Whistleblower Protections (DFARS Case 2013-D010)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement statutory amendments to whistleblower protections for 
contractor and subcontractor employees.

DATES: Effective February 28, 2014.

FOR FURTHER INFORMATION CONTACT: Amy Williams, telephone 571-372-6106.

SUPPLEMENTARY INFORMATION:

I. Background

    This final rule finalizes an interim rule that revised the DFARS to 
implement section 827 (except paragraph (g)) of the National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239, enacted 
January 2, 2013). Section 827, entitled ``Enhancement of Whistleblower 
Protections for Contractor Employees,'' made extensive changes to 10 
U.S.C. 2409, entitled ``Contractor employees: Protection from reprisal 
or disclosure.'' Paragraph (g) of section 827, which amended paragraph 
(k) of 10 U.S.C. 2324, entitled ``Allowable costs under defense 
contracts,'' is addressed under a separate DFARS case, 2013-D022, 
Allowability of Legal Costs for Whistleblower Proceedings.
    Section 827 of the NDAA for FY 2013 created a standalone statute 
for DoD that is independent of the FAR coverage.
    DoD published an interim rule in the Federal Register at 78 FR 
59851 on September 30, 2013, to implement statutory amendments to the 
whistleblower protections for contractor and subcontractor employees. 
One respondent submitted a public comment in response to the interim 
rule.

II. Discussion and Analysis

A. Public Comments

    DoD reviewed the public comment in the development of the final 
rule. A discussion of the comment is provided below.
    Comment: The respondent recommended reinstating the clarifying 
statements at DFARS 203.903 and 203.905 that ``The following policy 
applies to DoD instead of the policy at FAR 3.903/3.905.''
    Response: In the final rule, DoD has inserted a statement in 
section 203.900, Scope, to indicate that DFARS subpart 203.9 is to be 
used in lieu of FAR subpart 3.9. DFARS contractor whistleblower 
policies are based on 10 U.S.C. 2409, which is no longer implemented in 
the FAR (see FAR 3.900).

B. Other Changes

    DoD has incorporated other non-substantive editorial changes in the 
final rule. In addition to redesignation of some paragraphs to conform 
to DFARS numbering conventions and minor wording changes for clarity, 
DoD has relocated DFARS 203.907, Classified information, to DFARS 
203.903(2), because section 3.907 in the FAR is titled ``Whistleblower 
Protections Under the American Recovery and Reinvestment Act of 2009 
(the Recovery Act).'' DoD cannot assign a new title to the 
corresponding section in the DFARS.

II. 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 not a significant regulatory action and, therefore, was not 
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.

IV. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
and is summarized as follows:
    The Department of Defense (DoD) is amending the Defense Federal 
Acquisition Regulations Supplement (DFARS) to implement changes to 
existing protections for contractor whistleblower employees in 
accordance with section 827 of the National Defense

[[Page 11337]]

Authorization Act for Fiscal Year 2013. Section 827 amends 10 U.S.C. 
2409 and 10 U.S.C. 2324(k), making the changes applicable to DoD and 
NASA. Each agency is amending its FAR supplement. This analysis 
pertains only to the DFARS final rule. DFARS is revising subpart 203.9, 
``Whistleblower Protections for Contractor Employees.'' The subpart 
covers the policy, procedures for filing and investigating complaints, 
remedies, and the prescription for the clause at DFARS 252.203-7002, 
entitled ``Requirement to Inform Employees of Whistleblower Rights.''
    The rule applies to all entities, small as well as large, at the 
prime contract and subcontract level. However, not all entities will 
have a situation that requires an employee to use the whistleblower 
provisions, and there is no way to predict the potential number of 
whistleblowers in advance. However, a small entity could be impacted by 
a whistleblower employee either as a Government prime contractor or 
subcontractor. In addition, the impact on an entity is directly related 
to the seriousness of the alleged wrongdoing.
    No comments were received from the public on the Regulatory 
Flexibility analysis. No comments were received from the Chief Counsel 
for Advocacy of the Small Business Administration.
    There are no reporting requirements associated with this rule. 
However, a firm accused of retaliating against an employee 
whistleblower is likely to be required to furnish human resources 
documentation to disprove the accusation. This documentation, however, 
would only be required in the course of an investigation of the 
accusation, not as a result of a contract clause.
    There are no alternatives to this rule. Because of the terms used 
in the statute, DoD is unable to exempt small entities or establish a 
dollar threshold for coverage. Regardless of the size of the business, 
a whistleblower employee must be protected from retaliation by his/her 
employer.

V. 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 203 and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

    Accordingly, the interim rule amending 48 CFR parts 203 and 252, 
which was published in the Federal Register at 78 FR 59851 on September 
30, 2013, is adopted as a final rule with the following changes:

PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
1. The authority citation for 48 CFR part 203 continues to read as 
follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.


0
2. Section 203.900 is amended by--
0
a. Adding introductory text;
0
b. Redesignating paragraphs (a) and (b) as paragraphs (1) and (2); and
0
c. In redesignated paragraph (2), further redesignating paragraphs (1) 
and (2) as paragraphs (2)(i) and (ii).
    The addition reads as follows:


203.900  Scope of subpart.

    This subpart applies to DoD instead of FAR subpart 3.9.
* * * * *


203.901  [Amended]

0
3. Section 203.901 heading is amended by removing ``Definition'' and 
adding in its place ``Definitions''.
0
4. Section 203.903 is amended by--

0
a. Revising paragraph (1);
0
b. Redesignating paragraphs (2), (3), and (4) as paragraphs (3), (4), 
and (5), respectively; and
0
c. Adding a new paragraph (2).
    The revision and addition read as follows:


203.903  Policy.

    (1) Prohibition. 10 U.S.C. 2409 prohibits contractors and 
subcontractors from discharging, demoting, or otherwise discriminating 
against an employee as a reprisal for disclosing, to any of the 
entities listed at paragraph (2) of this section, information that the 
employee reasonably believes is evidence of gross mismanagement of a 
DoD contract, a gross waste of DoD funds, an abuse of authority 
relating to a DoD contract, a violation of law, rule, or regulation 
related to a DoD contract (including the competition for or negotiation 
of a contract), or a substantial and specific danger to public health 
or safety. Such reprisal is prohibited even if it is undertaken at the 
request of an executive branch official, unless the request takes the 
form of a non-discretionary directive and is within the authority of 
the executive branch official making the request.
    (2) Classified information. As provided in section 827(h) of the 
National Defense Authorization Act for Fiscal Year 2013, nothing in 
this subpart provides any rights to disclose classified information not 
otherwise provided by law.
* * * * *


203.904  [Amended]

0
5. Section 203.904 is amended by--
0
a. Redesignating paragraphs (a), (b), and (c) as paragraphs (1), (2), 
and (3), respectively; and
0
b. In the newly redesignated paragraph (3), further redesignating 
paragraphs (1), (2), (3), (4), and (5) as paragraphs (3)(i), (ii), 
(iii), (iv), and (v), respectively.

0
6. Section 203.905 is amended by revising paragraph (2) to read as 
follows:


203.905  Procedures for investigating complaints.

* * * * *
    (2) If the DoD Inspector General investigates the complaint, the 
DoD Inspector General will--
    (i) Notify the complainant, the contractor alleged to have 
committed the violation, and the head of the agency; and
    (ii) Provide a written report of findings to the complainant, the 
contractor alleged to have committed the violation, and the head of the 
agency.
* * * * *


203.907  [Removed]

0
7. Remove Section 203.907.

[FR Doc. 2014-04158 Filed 2-27-14; 8:45 am]
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