Defense Federal Acquisition Regulation Supplement; U.S.-International Atomic Energy Agency Additional Protocol (DFARS Case 2004-D003), 2411-2413 [E9-671]

Download as PDF Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 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. mstockstill on PROD1PC66 with RULES 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. VerDate Nov<24>2008 20:46 Jan 14, 2009 Jkt 217001 (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). PO 00000 Frm 00119 Fmt 4700 Sfmt 4700 203.970 2411 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) E:\FR\FM\15JAR1.SGM 15JAR1 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 B. Regulatory Flexibility Act mstockstill on PROD1PC66 with RULES 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. 16:54 Jan 14, 2009 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: ■ 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. VerDate Nov<24>2008 List of Subjects in 48 CFR Parts 204 and 252 Jkt 217001 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. PO 00000 Frm 00120 Fmt 4700 Sfmt 4700 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. E:\FR\FM\15JAR1.SGM 15JAR1 mstockstill on PROD1PC66 with RULES Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations (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 VerDate Nov<24>2008 16:54 Jan 14, 2009 Jkt 217001 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. 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: 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. SUMMARY: 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 PO 00000 Frm 00121 Fmt 4700 Sfmt 4700 2413 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 E:\FR\FM\15JAR1.SGM 15JAR1

Agencies

[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2411-2413]
From the Federal Register Online via the Government Printing 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.

-----------------------------------------------------------------------

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.

[[Page 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