[Federal Register: July 12, 2005 (Volume 70, Number 132)]
[Proposed Rules]
[Page 39976-39978]
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DEPARTMENT OF DEFENSE
48 CFR Parts 204, 235, and 252
[DFARS Case 2004-D010]
Defense Federal Acquisition Regulation Supplement; Export-
Controlled Information and Technology
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
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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 September 12, 2005, 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.
Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.
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 Council, Attn: Ms.
Amy Williams, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
Hand Delivery/Courier: Defense Acquisition Regulations
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf
.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
[[Page 39977]]
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule contains a new DFARS Subpart 204.73, Export-
Controlled Information and Technology at Contractor, University, and
Federally Funded Research and Development Center Facilities, and an
associated contract clause. The proposed subpart provides general
information on export control laws and regulations and requires
contracting officers to ensure that contracts identify any export-
controlled information and technology. The proposed clause is
prescribed for use in solicitations and contracts for research and
development or for services or supplies that may involve the use or
generation of export-controlled information or technology. The clause
requires the contractor to--
Comply with all applicable laws and regulations regarding
export-controlled information and technology;
Maintain an effective export compliance program;
Conduct initial and periodic training on export compliance
controls; and
Perform periodic assessments.
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-D010.
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 at
Contractor, University, and Federally Funded Research and
Development Center Facilities
Sec.
204.7301 Definition.
204.7302 General.
204.7303 Policy.
204.7304 Contract clause.
204.7301 Definition.
Export-controlled information and technology, as used in this
subpart, is defined in the clause at 252.204-70XX.
204.7302 General.
Export control laws and regulations restrict the transfer, by any
means, of certain types of information and technology. Any access to
export-controlled information or technology by a foreign national or a
foreign person anywhere in the world, including the United States, is
considered an export to the home country of the foreign national or
foreign person. For additional information relating to restrictions on
export-controlled information and technology, see PGI 204.7302.
204.7303 Policy.
The contracting officer shall ensure that contracts identify any
export-controlled information and technology, as determined by the
requiring activity.
204.7304 Contract clause.
Use the clause at 252.204-70XX, Requirements Regarding Access to
Export-Controlled Information and Technology, in solicitations and
contracts for--
(a) Research and development; or
(b) Services or supplies that may involve the use or generation of
export-controlled information or technology.
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 relating to restrictions on export-controlled
information and technology, see Subpart 204.73.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Section 252.204-70XX is added to read as follows:
252.204-70XX Requirements Regarding Access to Export-Controlled
Information and Technology.
As prescribed in 204.7304, use the following clause:
Requirements Regarding Access to Export-Controlled Information and
Technology (XXX 2005)
(a) Definition. Export-controlled information and technology, as
used in this clause, means information and technology that may only
be released to foreign nationals or foreign persons in accordance
with the Export Administration Regulations (15 CFR parts 730-774)
and the International Traffic in Arms Regulations (22 CFR parts 120-
130), respectively.
(b) In performing this contract, the Contractor may gain access
to export-controlled information or technology.
(c) The Contractor shall comply with all applicable laws and
regulations regarding export-controlled information and technology,
including registration in accordance with the International Traffic
in Arms Regulations.
(d) The Contractor shall maintain an effective export compliance
program. The program must include adequate controls over physical,
visual, and electronic access to export-controlled information and
technology to ensure that access by foreign firms and individuals is
restricted as required by applicable Federal laws, Executive orders,
and regulations.
(1) The access control plan shall include unique badging
requirements for foreign nationals and foreign persons and
segregated work areas for export-controlled information and
technology.
(2) The Contractor shall not allow access by foreign nationals
or foreign persons to export-controlled information and technology
without obtaining an export license, other authorization, or
exemption.
(e) The Contractor shall--
(1) Conduct initial and periodic training on export compliance
controls for those employees who have access to export-controlled
information and technology; and
[[Page 39978]]
(2) Perform periodic assessments to ensure full compliance with
Federal export laws and regulations.
(f) 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).
(g) The Contractor shall include the substance of this clause,
including this paragraph (g), in all subcontracts for--
(1) Research and development; or
(2) Services or supplies that may involve the use or generation
of 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. 05-13305 Filed 7-11-05; 8:45 am]
BILLING CODE 5001-08-P
