17 October 2006 Updated.
14 August 2006
-----------------------------------------------------------------------
[Federal Register: October 17, 2006 (Volume 71, Number 200)]
[Proposed Rules]
[Page 61012]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc06-47]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 235, and 252
RIN 0750-AF13
Defense Federal Acquisition Regulation Supplement; Export-
Controlled Information and Technology (DFARS Case 2004-D010)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule; reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: DoD is reopening the comment period for the proposed rule
published at 71 FR 46434 on August 14, 2006 which closed October 13.
The proposed rule contains requirements for preventing unauthorized
disclosure of export-controlled information and technology under DoD
contracts. The comment period is extended to provide additional time
for interested parties to review the proposed changes.
DATES: The ending date for submission of comments is reopened until
November 2, 2006.
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) 602-0350. Please cite DFARS Case 2004-D010.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
[FR Doc. E6-17231 Filed 10-16-06; 8:45 am]
BILLING CODE 5001-08-P
-----------------------------------------------------------------------
[Federal Register: August 14, 2006 (Volume 71, Number 156)]
[Proposed Rules]
[Page 46434-46440]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au06-32]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 235, and 252
RIN 0750-AF13
Defense Federal Acquisition Regulation Supplement; Export-
Controlled Information and Technology (DFARS Case 2004-D010)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to address requirements for preventing
unauthorized disclosure of export-controlled information and technology
under DoD contracts.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before October 13, 2006, to be considered
in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2004-D010,
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: dfars@osd.mil. Include DFARS Case 2004-D010 in the
subject line of the message.
Fax: (703) 602-0350.
Mail: Defense Acquisition Regulations System, Attn: Ms.
Debra
[[Page 46435]]
Overstreet, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
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. Debra Overstreet, (703) 602-0310.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published a proposed rule at 70 FR 39976 on July 12, 2005, to
address requirements for preventing unauthorized disclosure of export-
controlled information and technology under DoD contracts. To
accommodate significant interest expressed with regard to the proposed
rule, DoD extended the public comment period from 60 to 90 days (70 FR
46807, August 11, 2005), resulting in the public comment period ending
on October 12, 2005. After thorough consideration of all comments by
the Defense Acquisition Regulations Council, DoD is publishing a second
proposed rule for public comment.
This second proposed rule recognizes contractor responsibilities to
comply with existing Department of Commerce and Department of State
regulations, and the mutual responsibility of both the Government and
the contractor to identify export-controlled information or technology.
The more expansive regulatory requirements (including the prescriptive
requirements of badging, training, and segregated work areas) contained
in the first proposed rule are not included in this second proposed
rule.
Under this second proposed rule, the requiring activity must review
acquisitions to determine if, during performance of the contemplated
contract, the contractor will generate or require access to export-
controlled information or technology. The contracting officer will rely
on input from the requiring activity when including the appropriate
clause in each solicitation and contract for research and development
and, when appropriate, in solicitations for supplies and services. In
addition, there is a separate clause that is tailored specifically for
the unique circumstances of fundamental research contracts.
The first and second proposed rules both include a new DFARS
Subpart 204.73, Export-Controlled Information and Technology, and
associated contract clauses. The subpart in the second proposed rule
provides general information on export control laws and regulations and
requires the contracting officer, based on input received from the
requiring activity, to ensure that solicitations and contracts include
appropriate terms and conditions regarding export controls and identify
any export-controlled information and technology. For contracts that
require generation of or access to export-controlled information or
technology, the contractor will be required to--
Comply with applicable laws and regulations regarding
export-controlled information and technology;
Consult with the Department of State on any questions
regarding the International Traffic in Arms Regulations (ITAR), and
with the Department of Commerce on any questions regarding the Export
Administration Regulations (EAR); and
Notify the contracting officer if the contractor
determines during contract performance that generation of or access to
additional export-controlled information or technology is required.
In addition, under this second proposed rule, for contracts that do
not involve generation of or access to export-controlled information or
technology, the applicable clauses require contract modification if,
during performance, either contractual party becomes aware that the
contractor will need to generate or have access to export-controlled
information or technology.
DoD received comments from 145 persons and organizations in
response to the first proposed rule. DoD noted common themes among the
comments, resulting in development of the following six comment
categories:
1. Boundaries of the proposed rule.
2. Foreign participation in U.S. federally-sponsored research
projects.
3. Administrative burden and cost effectiveness of proposed
solutions to the underlying export control issues.
4. DoD personnel knowledge, qualifications, and skills to implement
the proposed rule.
5. Scope and purpose of regulation.
6. Processes involved and implementing language.
Differences between the first proposed rule and this second
proposed rule are further addressed in the following discussion of the
public comments.
1. Boundaries of the Proposed Rule
a. Comment. Directly or indirectly, one hundred and thirteen
respondents recommended against adopting the proposed rule. This
negative feedback came primarily from the educational research
community.
DoD Response. DoD recognizes the respondents' concerns, and the
proposed rule has been substantially re-written in a way that addresses
many of the concerns, including those expressed by the research
community. The impetus for creating the rule was a Department of
Defense Inspector General (DoDIG) audit report which found that some
contractors granted foreign nationals access to unclassified export-
controlled technology without proper authorization. The DoDIG concluded
that the Department does not have adequate processes to identify
unclassified export-controlled information or technology, nor to
prevent unauthorized disclosure to foreign nationals by its
contractors. Based on these findings, DoD believes appropriate changes
to regulations or procedures are warranted.
b. Comment. Ten respondents noted that the proposed guidance about
setting up a compliance program was too vague.
DoD Response. DoD concurs that the guidance in the proposed rule
was incomplete and conflicted with existing regulations. The rule has
been changed to eliminate separate DoD requirements regarding export
control compliance programs. Contractors that work with export-
controlled information or technology should refer to the ITAR and the
EAR when creating compliance programs.
c. Comment. Four respondents recommended that DoD use the
Department of State process for compliance. Five others noted the
dangers of setting up parallel requirements for compliance systems.
DoD Response. DoD agrees with these comments. The language at issue
is not included in this second proposed rule. Contractors should refer
to the ITAR and the EAR in developing their compliance programs.
d. Comment. Eighty-eight respondents noted that the proposed rule
was not compliant with National Security Decision Directive 189 (NSDD-
189). Ninety-two respondents specifically mentioned the fundamental
research exemption contained in NSDD-189.
DoD Response. In response to these comments, DoD has amended the
proposed rule to explicitly include reference to this directive and to
the definition of ``fundamental research.'' Also, this second proposed
rule contains a separate clause for inclusion in those contracts that
involve only fundamental research. NSDD-189 is executive policy, and
does not take precedence over statute-based export
[[Page 46436]]
controls, nor does it exempt any research, whether basic, fundamental,
or applied, from statute-based export controls, such as the Arms Export
Control Act, and the Export Administration Act. The Department of
State's International Traffic in Arms Regulations (ITAR) and the
Department of Commerce's Export Administration Regulations (EAR)
implement such statutes. The EAR exempts information resulting from
fundamental research from export controls; it does not exempt
information required to conduct fundamental research from export
controls. Questions regarding the applicability of export controls to
``fundamental research'' should be addressed to the Department of State
or the Department of Commerce, as appropriate.
e. Comment. Five respondents referred to the Department of Commerce
advance notice of proposed rulemaking (ANPR) of March 28, 2005 (70 FR
15607). These respondents recommended that DoD wait until the
Department of Commerce completes its rulemaking on this subject.
DoD Response. The focus of the DoD rulemaking is to ensure that DoD
contractors consider export controls and follow the EAR and ITAR rules
that are in place at the time of contract performance. The Bureau of
Industry and Security, Department of Commerce, published two documents
in May 2006 related to the March 28, 2005, ANPR: On May 22, 2006 (71 FR
29301), the Department of Commerce announced the establishment of a
Deemed Export Advisory Committee to ``address complex questions related
to an evolving deemed export control policy.'' Subsequently, on May 31,
2006 (71 FR 30840), the Department of Commerce announced the withdrawal
of its ANPR published on March 28, 2005. Therefore, no changes were
made to the EAR as a result of the March 28, 2005, Department of
Commerce ANPR.
f. Comment. Three respondents noted that it takes too long to
obtain export licenses under the current process.
DoD Response. The intent of the DoD rule is to ensure that
contractors are aware of their obligations under the ITAR and the EAR.
Export license procedures are outside the scope of this rulemaking.
Problems with obtaining export licenses should be resolved with the
Department of State or the Department of Commerce, as appropriate.
g. Comment. Nine respondents stated that DoD should not require a
contract clause.
DoD Response. DoD believes that action is required to ensure that
contractors are aware of their obligations under the ITAR and the EAR.
The proposed clauses, as rewritten, require that contractors comply
with current laws and regulations. The proposed clauses are primarily
intended to ensure that contractors are aware of their existing
responsibilities and comply with those responsibilities.
h. Comment. Nine respondents stated that DoD should leave the whole
area of export control to the Department of Commerce and the Department
of State.
DoD Response. DoD program officers and contracting officers need to
be mindful of export control requirements that apply to performance of
contracts and must ensure that contractors are aware of their
responsibilities. For example, if DoD is providing export-controlled
information or technology under a contract, the contract should inform
the contractor of the nature of such information or technology.
Furthermore, DoD has coordinated this second proposed rule with the
Department of Commerce and the Department of State, and has revised the
language to eliminate potential conflicts with the ITAR and the EAR.
The proposed rule now includes references to the Department of Commerce
regarding the EAR and the Department of State regarding the ITAR, since
these agencies are responsible for promulgating and enforcing those
export control regulations.
i. Comment. Four respondents noted the proposed rule went beyond
the ITAR in establishing system requirements.
DoD Response. DoD agrees with this concern, and has revised the
proposed rule to advise contractors of their responsibilities to comply
with the ITAR. In addition, language about the content of compliance
systems has been removed.
j. Comment. Nine respondents stated that the Department of State
Visas Mantis program requirements were adequate to protect information
and technologies.
DoD Response. DoD agrees that the Visas Mantis program is very
helpful in clearing individuals to participate in federally funded
research projects. However, it was never intended to guarantee that
contractors would not share information technology inappropriately.
k. Comment. Thirty-one respondents asserted that the language in
the proposed rule was imprecise and/or inconsistent with the ITAR and
the EAR.
DoD Response. In response to these comments, DoD has revised the
proposed rule to eliminate conflicts and to clarify the text.
l. Comment. One respondent suggested that the proposed rule should
be within the purview of the FAR Council.
DoD Response. While export controls are not limited to DoD
contracts, this rule will apply only to DoD contracts. If the FAR
Council determines that a FAR rule is required, DoD will amend the
DFARS as necessary to conform with any such FAR rule.
2. Foreign Participation in U.S. Federally-Sponsored Research Projects
a. Comment. Fifty-six respondents asserted that the proposed rule
would harm national security. These respondents asserted that foreign
scientists and researchers add more to the U.S. research enterprise
than they take away. In some fields, foreign researchers are ahead of
their U.S. counterparts. Restricting participation in DoD-funded
research may deprive the United States of capabilities that result in
essential contributions to maintaining U.S. military superiority.
DoD Response. DoD recognizes that National Security, as it relates
to research and development, involves a balancing act. Science
generally transcends national boundaries, i.e., learning is not easily
contained. Free exchange of ideas is a foundational concept of U.S.
research and educational institutions. Conversely, it is important to
prevent the transfer of technologies that would compromise national
security. The revisions to the proposed rule attempt to strike the
needed balance by interfering as little as possible with the university
research infrastructure for fundamental research, while ensuring that
contractors comply with their responsibilities under the ITAR and the
EAR.
b. Comment. Two respondents stated that there would be a potential
adverse effect on collaboration with foreign scientists and
researchers.
DoD Response. DoD recognizes this concern and believes that the
rule, as rewritten, minimizes this impact while ensuring that
contractors are aware of their responsibilities to comply with existing
export control regulations.
c. Comment. One respondent recommended inclusion of a provision to
notify the contracting officer whenever foreign persons were hired on
research projects.
DoD Response. In developing terms and conditions of contracts,
contracting officers have the authority to require such notifications,
consistent with the Privacy Act, when deemed appropriate for a specific
situation (e.g., when
[[Page 46437]]
export controlled information or technology or classified information
is involved). However, DoD believes that mandating this notification
for all contracts is unnecessary.
d. Comment. Ten respondents were concerned that the proposed rule
used the terms ``foreign national'' and ``foreign person,'' but did not
define these terms.
DoD Response. In response to this comment, the proposed rule has
been revised to refer to the ITAR and the EAR for applicable
definitions. e. Comment. Seventy-one respondents asserted that the
proposed rule would hinder foreign student participation.
DoD Response. DoD acknowledges this concern and recognizes the
value of foreign student participation in DoD research. DoD appreciates
the contributions foreign researchers have made to DoD systems and
technologies. However, it is also important that contractors comply
with existing laws and regulations related to the unauthorized transfer
of export-controlled information and technology to foreign recipients,
which is the purpose of this proposed rule.
f. Comment. Seventy-one respondents stated that the proposed rule
would hinder U.S. research.
DoD Response. DoD believes this second proposed rule does not
impose any negative effects on U.S. research, since it refers
contractors to their already-existing responsibilities under the ITAR
and the EAR.
g. Comment. Sixty-three respondents objected to segregated work
areas.
DoD Response. As noted in the responses to comments 1.b. and 1.h.,
the proposed rule has been changed to eliminate separate DoD
requirements on export control compliance programs, and instead
includes references to the Department of State for the ITAR and the
Department of Commerce for the EAR. Thus, a specific DoD requirement
for segregated work areas has been removed from the proposed rule.
3. Administrative Burden and Cost-Effectiveness of Proposed Solutions
to the Underlying Export Control Issues
a. Comment. Forty-four respondents expressed concerns about the
additional administrative burden of the proposed rule. These
respondents asserted that the proposed rule appeared to mandate
compliance system requirements beyond those required in the ITAR and
the EAR.
DoD Response. DoD recognizes this concern, and appropriate
revisions have been made to the rule. This second proposed rule
requires contractors to comply with their responsibilities under the
ITAR and the EAR when export-controlled information or technology will
be generated or accessed in the performance of the contract.
b. Comment. Ninety-two respondents expressed concern with the
requirement to issue badges to research participants.
DoD Response. As noted in the responses to comments 1.b., 1.h., and
2.g., the proposed rule has been changed to eliminate separate DoD
requirements on export control compliance programs, and instead
includes references to the Department of State for the ITAR and the
Department of Commerce for the EAR. The Department of State and the
Department of Commerce have responsibility for overseeing compliance
with ITAR and EAR requirements.
c. Comment. Six respondents asserted that the proposed rule would
impose a training burden.
DoD Response. The rule was not intended to place unique DoD
compliance burdens on the contractor. Therefore, the specific language
related to training has been removed.
d. Comment. Two respondents expressed concerns related to the
rule's impact on access to research equipment that is export-
controlled.
DoD Response. Since the proposed rule is focused on reminding
contractors of their responsibility to comply with the ITAR and the
EAR, access to research equipment is considered to be outside the scope
of this proposed rule. DoD recommends that the respondents refer
concerns on this matter to the Department of Commerce or the Department
of State, as appropriate.
e. Comment. Three respondents stated that some universities do not
have adequate infrastructure to comply with the proposed rule.
DoD Response. DoD believes that the revisions made to the proposed
rule should mitigate some of these concerns. However, any institution
that becomes involved with export-controlled information and technology
must develop the infrastructure to comply with statute and regulation.
This is a requirement separate and apart from the proposed rule.
f. Comment. Two respondents asserted that the security benefits of
the proposed rule were modest and that the rule created unnecessary
bureaucracies.
DoD Response. The proposed rule has been revised to focus only on
requiring contractors to comply with their existing obligations under
the ITAR and the EAR. As such, it does not create any new
administrative burden.
4. DoD Personnel Knowledge, Qualifications, and Skills To Implement the
Proposed Rule
Comment. Thirteen respondents doubted the capability of DoD
contracting officers to identify and comment about export control
issues. The primary concerns involved training, qualifications, and
experience. An additional eight respondents expressed concern that
contracting officers could not appropriately deal with compliance
issues.
DoD Response. DoD recognizes the importance of training, as well as
the importance of coordination between the contracting officer and
technical/requirements personnel. DoD is committed to appropriate
training of program managers and contracting officers related to the
ITAR and the EAR. Therefore, concurrent with publication of this second
proposed rule, DoD is developing better training for those Government
employees involved with export-controlled information or technology.
DoD also recognizes that part of the problem identified in the DoDIG
report could have been avoided if the contracting officer and the
Government scientific officer had been adequately attentive to the fact
that export-controlled information or technology was involved.
Therefore, under this second proposed rule, the requiring activity must
review acquisitions to determine if the contractor will generate or
require access to export-controlled information or technology. The
contracting officer will rely on this input when including the
appropriate clause in each solicitation and contract for research and
development, and when appropriate, in solicitations for supplies and
services.
5. Scope and Purpose of Regulation
a. Comment. Twenty-one respondents stated that the proposed rule
adds new requirements.
DoD Response. DoD agrees that the first proposed rule was overly
prescriptive and has revised the rule accordingly.
b. Comment. Four respondents expressed concern that the regulation
is too narrow in scope, while three respondents recommended that the
clause not be used extensively.
DoD Response. DoD believes that the revisions in the second
proposed rule resolve both of these issues. The status of fundamental
research under NSDD-189 has been recognized by including a clause
specifically for the unique circumstances of fundamental research
contracts. In addition, the rule as
[[Page 46438]]
rewritten requires inclusion of the appropriate clause in other
research and development contracts, as well as contracts for supplies
and services, when appropriate.
c. Comment. One respondent questioned the application of the rule
to universities, stating that the DoDIG report identified only one
instance of a university export control lapse.
DoD Response. Whereas DoD acknowledges that the DoDIG report
identified only one instance of a university lapse, DoD recognizes that
the findings were based on a limited sampling of contracts. To ensure
that problems do not occur, DoD believes that all contractors must
exercise due diligence to protect export-controlled information or
technology when it is generated or accessed during contract
performance. The status of fundamental research has been recognized by
including a clause specifically for the unique circumstances of
fundamental research contracts. However, universities still need to be
aware of ITAR and EAR requirements, even though university contracts
seldom involve export export-controlled information or technology.
d. Comment. Two respondents stated that the rule did not properly
explain its purpose.
DoD Response. The purpose of the proposed rule is to ensure that
DoD contractors are aware of their responsibilities to comply with all
applicable laws and regulations when export-controlled information and
technology is involved in contract performance.
6. Processes Involved and Implementing Language
a. Comment. Three respondents recommended a representation and
certification as opposed to a contract clause.
DoD Response. DoD does not believe that the administrative burden
associated with a certification would provide a commensurate benefit.
b. Comment. Seven respondents requested more detail about the
citations used in the clause.
DoD Response. In response to this request, more detailed citations
are provided in this second proposed rule.
c. Comment. Twenty respondents expressed concerns about the flow
down of the clause from commercial entities to universities.
DoD Response. DoD recognizes the unique challenges associated with
this concern. DoD believes that the need to protect export-controlled
information and technology is of paramount importance and, therefore,
recognizes the need to clarify the flow-down requirement. This second
proposed rule requires that DoD contractors include the substance of
the clause in a subcontract only when the subcontract will involve
generation of or access to export-controlled information or technology.
d. Comment. Three respondents recommended specific wording changes.
DoD Response. These suggested wording changes were overtaken by the
substantial changes to the first proposed rule.
e. Comment. Three respondents asserted that ``listing errors'' will
occur if the contracting officer is required to identify export-
controlled information or technology involved in contract performance.
DoD Response. As discussed in the response to comment 4, DoD
recognizes the importance of training, as well as the importance of
coordination between the contracting officer and technical/requirements
personnel. This second proposed rule reminds contractors to comply with
export control regulations, and places mutual responsibility upon the
Government and the contractor to notify the contracting officer if,
during contract performance, generation of or access to additional
export-controlled information or technology is required.
f. Comment. One respondent objected to the requirement for periodic
assessments.
DoD Response. In response to this comment, and for reasons
discussed in the responses to comments 1.b. and 1.h., the requirement
for periodic assessments was removed. However, contractors remain
responsible for complying with export control regulations.
g. Comment. One respondent recommended a database of contractors
with effective compliance programs.
DoD Response. Since the Department of Commerce and the Department
of State have responsibility for system oversight, this comment has
been forwarded to those agencies for consideration.
h. Comment. Nineteen respondents supported alternative language as
offered by the Council on Government Relations.
DoD Response. DoD incorporated the concepts of some of this
language in rewriting the proposed rule.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
The proposed rule is not expected 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 all
contractors, including small entities, are already subject to export-
control laws and regulations. The requirements in this proposed rule
are clarifications of existing responsibilities. 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 2004-010.
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 Parts 204, 235, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR parts 204, 235, and 252 as
follows:
1. The authority citation for 48 CFR Parts 204, 235, and 252
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 204--ADMINISTRATIVE MATTERS
2. Subpart 204.73 is added to read as follows:
Subpart 204.73--Export-Controlled Information and Technology
Sec.
204.7301 Definitions.
204.7302 General.
204.7303 Policy.
204.7304 Contract clauses.
Subpart 204.73--Export-Controlled Information and Technology
204.7301 Definitions.
As used in this subpart--
Export-controlled information and technology is defined in the
clause at 252.204-70XX.
Fundamental research is defined in the clause at 252.204-70YY.
[[Page 46439]]
204.7302 General.
Export control laws and regulations restrict the transfer, by any
means, of certain types of information and technology to unauthorized
persons. See PGI 204.7302 for additional information regarding lead
regulatory agencies and compliance with export control laws and
regulations.
204.7303 Policy.
The requiring activity shall review acquisitions to determine if,
during performance of the contemplated contract, the contractor will
generate or require access to export-controlled information or
technology.
(a) Prior to issuance of a solicitation for research and
development, the requiring activity shall notify the contracting
officer in writing when--
(1) Export-controlled information or technology will be involved.
The notification shall identify the specific information or technology
that must be controlled, including the applicable references to the
International Traffic in Arms Regulations (ITAR) and/or Export
Administration Regulations (EAR); or
(2) The work is fundamental research only, and export-controlled
information or technology will not be involved.
(b) Prior to issuance of a solicitation for supplies or services,
the requiring activity shall notify the contracting officer in writing
when--
(1) Export-controlled information or technology will be involved.
The notification shall identify the specific information or technology
that must be controlled, including the applicable references to the
ITAR and/or EAR; or
(2) The requiring activity is unable to determine that export-
controlled information or technology will not be involved.
204.7304 Contract clauses.
(a) Use the clause at 252.204-70XX, Requirements for Contracts
Involving Export-Controlled Information or Technology, in solicitations
and contracts when the requiring activity provides the notification at
204.7303(a)(1) or (b)(1). The contracting officer shall identify the
export-controlled information or technology as provided by the
requiring activity.
(b) Use the clause at 252.204-70YY, Requirements Regarding Access
to Export-Controlled Information or Technology--Fundamental Research,
in solicitations and contracts when the requiring activity provides the
notification at 204.7303(a)(2).
(c) Use the clause at 252.204-70ZZ, Requirements Regarding Access
to Export-Controlled Information or Technology, in solicitations and
contracts--
(1) For research and development, except when the clause at
252.204-70XX or 252.204-70YY will be included; or
(2) For supplies and services, when the requiring activity provides
the notification at 204.7303(b)(2).
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
235.071 [Redesignated]
3. Section 235.071 is redesignated as section 235.072.
4. A new section 235.071 is added to read as follows:
235.071 Export-controlled information and technology at contractor,
university, and Federally Funded Research and Development Center
facilities.
For requirements regarding access to export-controlled information
and technology, see Subpart 204.73.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Sections 252.204-70XX, 252.204-70YY, and 252.204-70ZZ are added
to read as follows:
252.204-70XX Requirements for Contracts Involving Export-Controlled
Information or Technology.
As prescribed in 204.7304(a), use the following clause:
REQUIREMENTS FOR CONTRACTS INVOLVING EXPORT-CONTROLLED INFORMATION OR
TECHNOLOGY (XXX 2006)
(a) Definition. Export-controlled information and technology, as
used in this clause, means information and technology subject to
export controls established in the Export Administration Regulations
(EAR) (15 CFR parts 730-774) or the International Traffic in Arms
Regulations (ITAR) (22 CFR parts 120-130).
(b) The parties anticipate that, in performance of this
contract, the Contractor will generate or need access to export-
controlled information or technology.
(1) The specific information [and, or] technology subject to
export controls [is, are]:
[The Contracting Officer shall identify the specific information
and/or technology as determined by the requiring activity in
accordance with 204.7303(a)(1) or 204.7303(b)(1)].
(2) If, during performance of this contract, the Government or
the Contractor becomes aware that the Contractor will generate or
need access to export-controlled information or technology not
listed in paragraph (b)(1) of this clause, it shall notify the other
party and either--(i) Modify paragraph (b)(1) of this clause to
include identification of the additional export-controlled
information or technology, and ensure its control as required by
paragraph (c) of this clause; or
(ii) Negotiate a contract modification that eliminates the
requirement for performance of work that would involve access to or
generation of export-controlled information or technology not
identified in paragraph (b)(1) of this clause.
(c) The Contractor shall comply with all applicable laws and
regulations regarding export-controlled information and technology,
including the requirement for contractors to register with the
Department of State in accordance with the ITAR. The Contractor
shall consult with the Department of State with any questions
regarding the ITAR and shall consult with the Department of Commerce
with any questions regarding the EAR.
(d) Nothing in the terms of this contract is intended to change,
supersede, or waive any of the requirements of applicable Federal
laws, Executive orders, and regulations, including but not limited
to--
(1) The Export Administration Act of 1979 (50 U.S.C. App. 2401
as extended by Executive Order 13222);
(2) The Arms Export Control Act of 1976 (22 U.S.C. 2751);
(3) The Export Administration Regulations (15 CFR parts 730-
774);
(4) The International Traffic in Arms Regulations (22 CFR parts
120-130);
(5) DoD Directive 2040.2, International Transfers of Technology,
Goods, Services, and Munitions; and
(6) DoD Industrial Security Regulation (DoD 5220.22-R).
(e) The Contractor shall include the substance of this clause,
including this paragraph (e), in all subcontracts that will involve
access to or generation of export-controlled information or
technology.
(End of clause)
252.204-70YY Requirements Regarding Access to Export-Controlled
Information or Technology--Fundamental Research.
As prescribed in 204.7304(b), use the following clause:
REQUIREMENTS REGARDING ACCESS TO EXPORT-CONTROLLED INFORMATION OR
TECHNOLOGY--FUNDAMENTAL RESEARCH (XXX 2006)
(a) Definitions. As used in this clause--
Applied research means the effort that--
(1) Normally follows basic research, but may not be severable
from the related basic research;
(2) Attempts to determine and exploit the potential of
scientific discoveries or improvements in technology, materials,
processes, methods, devices, or techniques; and
(3) Attempts to advance the state of the art.
Basic research means that research directed toward increasing
knowledge in science. The primary aim of basic research is a fuller
knowledge or understanding of the subject under study, rather than
any practical application of that knowledge.
Export-controlled information and technology means information
and technology subject to export controls established in the Export
Administration Regulations (15 CFR parts 730-774) or the
International Traffic in Arms Regulations (22 CFR parts 120-130).
[[Page 46440]]
Fundamental research, as defined by National Security Decision
Directive 189, means basic and applied research in science and
engineering, the results of which ordinarily are published and
shared broadly within the scientific community. This is
distinguished from proprietary research and from industrial
development, design, production, and product utilization, the
results of which ordinarily are restricted for proprietary or
national security reasons.
(b) The parties consider the work required by this contract to
be fundamental research. As such, the parties do not anticipate that
in performance of this contract the Contractor will generate or need
access to export-controlled information or technology.
(c) If, during performance of this contract, the Government or
the Contractor becomes aware that the Contractor will generate or
need access to export-controlled information or technology, it shall
notify the other party and either--
(1) Modify the contract to include the Defense Federal
Acquisition Regulation Supplement clause 252.204-70XX, Requirements
for Contracts Involving Export-Controlled Information or Technology,
and identify and control the export-controlled information or
technology as required by the clause; or
(2) Negotiate a contract modification that eliminates the
requirement for performance of work that would involve export-
controlled information or technology.
(End of clause)
252.204-70ZZ Requirements Regarding Access to Export-Controlled
Information or Technology.
As prescribed in 204.7304(c), use the following clause:
REQUIREMENTS REGARDING ACCESS TO EXPORT-CONTROLLED INFORMATION OR
TECHNOLOGY (XXX 2006)
(a) Definition. Export-controlled information and technology, as
used in this clause, means information and technology subject to
export controls established in the Export Administration Regulations
(15 CFR parts 730-774) or the International Traffic in Arms
Regulations (22 CFR parts 120-130).
(b) The parties do not anticipate that in performance of this
contract the Contractor will generate or need access to export-
controlled information or technology.
(c) If, during performance of this contract, the Government or
the Contractor becomes aware that the Contractor will generate or
need access to export-controlled information or technology, it shall
notify the other party and either--
(1) Modify the contract to include the Defense Federal
Acquisition Regulation Supplement clause 252.204-70XX, Requirements
for Contracts Involving Export-Controlled Information or Technology,
and identify and control the export-controlled information or
technology as required by the clause; or
(2) Negotiate a contract modification that eliminates the
requirement for performance of work that would involve export-
controlled information or technology.
(End of clause)
252.235-7002, 252.235-7003, 252.235-7010, and 252.235-7011 [Amended]
6. Sections 252.235-7002, 252.235-7003, 252.235-7010, and 252.235-
7011 are amended in the introductory text by removing ``235.071'' and
adding in its place ``235.072''.
[FR Doc. E6-13290 Filed 8-11-06; 8:45 am]
BILLING CODE 5001-08-P