Defense Federal Acquisition Regulation Supplement: Enhancement of Contractor Employee Whistleblower Protections (DFARS Case 2013-D010), 11336-11337 [2014-04158]
Download as PDF
<![CDATA[
11336
Federal Register / Vol. 79, No. 40 / Friday, February 28, 2014 / Rules and Regulations
to make a state-level commitment for
five years.
(c) Deployment schedule. Recipients
of Phase II funding must complete
deployment to 85% of supported
locations within three years of
notification of Phase II support
authorization and to 100% of supported
locations within five years of
notification of Phase II support
authorization. For purposes of meeting
the obligation to deploy to the requisite
number of supported locations,
incumbent price cap carriers accepting
a state-level commitment may serve
locations in census blocks with costs
above the extremely high-cost threshold
instead of locations in eligible census
blocks, provided that they meet the
public interest obligations set forth in
§ 54.309 for those locations, and
provided that the total number of
locations covered is greater than or
equal to the number of locations in the
eligible census blocks for which the
state-level commitment is made.
(d) Disbursement of Phase II funding.
An eligible telecommunications carrier
will be advised by public notice when
it is authorized to receive support. The
public notice will detail how
disbursements will be made.
4. In § 54.313, revise paragraphs (e)(1),
(e)(2) and (e)(3) introductory text to read
as follows:
■
§ 54.313 Annual reporting requirements
for high-cost recipients
emcdonald on DSK67QTVN1PROD with RULES
*
*
*
*
*
(e) * * *
(1) In the calendar year no later than
three years after notification of
authorization of CAF Phase II funding,
a certification that the recipient is
providing broadband meeting the
requisite public interest obligations
specified in § 54.309 to 85% of its
supported locations.
(2) In the calendar year no later than
five years after notification of
authorization of CAF Phase II funding,
a certification that the recipient is
providing broadband meeting the
requisite public interest obligations
specified in § 54.309 to 100% of its
supported locations.
(3) In the calendar year after the filing
of its initial five-year service quality
improvement plan, and every year
thereafter, a progress report on the
company’s five-year service quality
improvement plan, including the
following information:
*
*
*
*
*
[FR Doc. 2014–04313 Filed 2–27–14; 8:45 am]
BILLING CODE 6712–01–P
VerDate Mar<15>2010
16:46 Feb 27, 2014
Jkt 232001
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)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
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.
SUMMARY:
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
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
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 nonsubstantive 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
E:\FR\FM\28FER1.SGM
28FER1
Federal Register / Vol. 79, No. 40 / Friday, February 28, 2014 / Rules and Regulations
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.
emcdonald on DSK67QTVN1PROD with RULES
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).
VerDate Mar<15>2010
16:46 Feb 27, 2014
Jkt 232001
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
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.
2. Section 203.900 is amended by—
a. Adding introductory text;
b. Redesignating paragraphs (a) and
(b) as paragraphs (1) and (2); and
■ 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]
3. Section 203.901 heading is
amended by removing ‘‘Definition’’ and
adding in its place ‘‘Definitions’’.
■ 4. Section 203.903 is amended by—
■ a. Revising paragraph (1);
■ b. Redesignating paragraphs (2), (3),
and (4) as paragraphs (3), (4), and (5),
respectively; and
■ c. Adding a new paragraph (2).
The revision and addition read as
follows:
■
203.903
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]
5. Section 203.904 is amended by—
a. Redesignating paragraphs (a), (b),
and (c) as paragraphs (1), (2), and (3),
respectively; and
■ 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.
■ 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]
7. Remove Section 203.907.
[FR Doc. 2014–04158 Filed 2–27–14; 8:45 am]
BILLING CODE 5001–06–P
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
PO 00000
11337
Frm 00043
Fmt 4700
Sfmt 4700
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 204, 212, 227, 237, and
252
RIN 0750–AH54
Defense Federal Acquisition
Regulation Supplement; Disclosure to
Litigation Support Contractors (DFARS
Case 2012–D029)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule.
AGENCY:
E:\FR\FM\28FER1.SGM
28FER1
]]>Agencies
[Federal Register Volume 79, Number 40 (Friday, February 28, 2014)]
[Rules and Regulations]
[Pages 11336-11337]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04158]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 5001-06-P
