81 FR 28724 - Defense Federal Acquisition Regulation Supplement: Disclosure to Litigation Support Contractors (DFARS Case 2012-D029)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 81, Issue 90 (May 10, 2016)
Defense Acquisition Regulations System
Federal Register Volume 81, Issue 90 (May 10, 2016)
| Page Range | 28724-28729 | |
| FR Document | 2016-10822 |
[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)] [Rules and Regulations] [Pages 28724-28729] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-10822] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 204, 209, 212, 227, 237, and 252 [Docket DARS-2014-0017] RIN 0750-AH54 Defense Federal Acquisition Regulation Supplement: Disclosure to Litigation Support Contractors (DFARS Case 2012-D029) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2012 that provides DoD the authority to allow its litigation support contractors access to ``sensitive information'' subject to certain restrictions. DATES: Effective May 10, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571- 372-6106. SUPPLEMENTARY INFORMATION: I. Background DoD published an interim rule in the Federal Register at 79 FR 11337 on February 28, 2014, to implement section 802 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), which provides DoD the express authority to allow its litigation support contractors access to ``sensitive information,'' provided that the litigation support contractor is subject to certain restrictions on using and disclosing such information. Two respondents submitted public comments in response to the interim rule. II. Discussion and Analysis DoD reviewed the public comments in the development of the final rule. A discussion of the comments received and the changes made to the rule as a result of those comments follows: [[Page 28725]] A. Summary of Significant Changes From the Interim Rule 1. A new paragraph (b)(4) is added to the provision at DFARS 252.204-7013 and a new paragraph (b)(5) is added to the clause at DFARS 252.204-7014 to clarify that the offeror and the contractor, respectively, shall destroy or return to the Government, at the request of the contracting officer, all litigation information in its possession upon completion of the authorized litigation support activities. 2. A new paragraph (b)(2) is added to the clause at DFARS 252.204- 7014 to clarify that the contractor shall not disclose litigation information to any entity outside the contractor's organization unless, prior to disclosure, the contracting officer has provided written consent. B. Analysis of Public Comments 1. Inclusion of Third Party Information Comment: One respondent commented that the interim rule went beyond the definition of ``sensitive information'' provided in 10 U.S.C. 129d because, as implemented, ``sensitive information'' is not limited to information owned by the Department of Defense. The respondent suggested that the absence of the language ``obtained from a person'' as used in Exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)) indicates that 10 U.S.C. 129d was intended to apply only to information ``owned by the Department of Defense.'' The respondent stated that because the interim rule does not limit the scope of sensitive information to only information owned by DoD, the rule could expose the Government to liability or penalties for unauthorized disclosure of information under the Federal Tort Claims Act, or a taking of property under the U.S. Constitution, the Procurement Integrity Act, 41 U.S.C. 2101 et seq., and the Trade Secrets Act, 18 U.S.C. 1905. The respondent called for rescission of the interim rule until the definition of ``sensitive information'' was narrowed. Response: The statutory language and legislative history do not indicate that 10 U.S.C. 129d is limited only to information owned by the Department of Defense (or the U.S. Government). Prior to, and notwithstanding, the enactment of the statute, DoD was authorized to disclose information that it owns. 10 U.S.C. 129d authorizes disclosure of ``sensitive information,'' without limitation related to the ownership or source of the information, for the sole purpose of providing litigation support to DoD. To narrow the definition as the respondent suggests would obviate the need for any statutory authorization. The new DFARS subpart 204.74 established by the interim rule implements the statutory authorization for litigation information, including sensitive information owned by or obtained from non-DoD sources. Disclosure of such information is thus authorized by law when done pursuant to DFARS subpart 204.74. No change is made in the final rule. 2. Safeguarding Unclassified Controlled Technical Information Comment: One respondent questioned whether litigation support contractors, and their subcontractors, will be required to comply with the requirements at DFARS clause 252.204-7012, formerly entitled ``Safeguarding of Unclassified Controlled Technical Information.'' Response: The requirements of the clause at DFARS 252.204-7012, now entitled ``Safeguarding Covered Defense Information and Cyber Incident Reporting,'' will apply to contractors, and their subcontractors, as required by the clause. 3. Disposition of Litigation Information Comment: One respondent suggested that the interim rule should be amended to include requirements for the information provided to a litigation support contractor to be destroyed or returned to DoD when no longer needed or at the end of contract performance. Response: Paragraph (b)(4) is added to the provision at DFARS 252.204-7013 and paragraph (b)(5) is added to the clause at DFARS 252.204-7014 to clarify that the contractor shall destroy or return to the Government, at the request of the contracting officer, all litigation information in its possession upon completion of the authorized litigation support activities. 4. Use of Litigation Information Comment: One respondent suggested limiting the authorized use of litigation information to the litigation support required by the individual contract, under which the litigation information was received. Response: Litigation support contractors must be able to use the litigation information provided by the Government as needed. A contractor may provide litigation support under multiple contracts. In such instances, limiting the scope of authorized use to only the contract under which the litigation information was provided could require the Government to provide the same information multiple times. Having to exchange and handle multiple copies of the same information increases the risk of inadvertent disclosure and the cost of performance and administration. No change is made in the final rule. 5. Third Party Beneficiary Rights Comment: One respondent stated that if ``sensitive information'' includes information owned by third parties, then the interim rule should be amended to require litigation support contractors to comply with Federal Acquisition Regulation (FAR) 9.505-4(b) and have a direct nondisclosure agreement between the owner of the sensitive information and the litigation support contractor. The respondent also stated that the third party beneficiary rights are illusory without notice to the owner of the sensitive information. Response: A direct nondisclosure agreement or prior notice requirement could prejudice the Government by providing premature warning of possible litigation or of the Government's litigation strategies. Accordingly, DoD has determined that requiring a direct nondisclosure agreement pursuant to FAR 9.505-4(b) for litigation support contractors would not be in the Government's interest. 10 U.S.C. 129d does not require that DoD confer upon an owner of sensitive information any third party beneficiary rights; however, at paragraph (d) of the clause at 252.204-7014, DoD has chosen to provide third party beneficiary rights analogous to those afforded by paragraph (c) of the clause at DFARS 252.227-7025. No change is made in the final rule as a result of this comment. 6. Appropriateness of an Interim Rule Comment: One respondent stated that issuing an interim rule was not appropriate because there was inadequate justification for the determination of urgent or compelling reasons for doing so. The respondent suggested that, without further justification, a proposed rule was more appropriate and urged rescission of the interim rule. Response: DoD published the basis for its determination that urgent and compelling reasons existed to authorize the use of an interim rule. After consideration of the respondent's comment, DoD determined that rescission of the interim rule was not warranted. 7. Release of Information to Litigation Support Subcontractors Comment: One respondent stated that while litigation support contractors are required to flow down the clause at DFARS 252.204-7014 to subcontractors, [[Page 28726]] it is not clear whether litigation support contractors and any subcontractors would be subject to DFARS clause 252.204-7000, Disclosure of Information. Response: This rule does not affect the applicability of the clause DFARS at 252.204-7000. In accordance with its prescription at DFARS 204.404-70(a), the clause applies to all solicitations and contracts when the contractor will have access to or generate unclassified information that may be sensitive and inappropriate for release to the public. That clause will flow down to subcontracts, in accordance with paragraph (c) of the clause. There is no conflict between the DFARS 252.204-7000 clause and the DFARS 252.204-7014 clause, at the prime or subcontract level. The clause at DFARS 252.204-7000 prohibits the release of information outside the contractor's organization without permission from the contracting officer, while the DFARS 252.204-7014 clause requires the litigation support contractor to protect against any unauthorized releases of information, and does not authorize the contractor to make any releases outside the contractor's organization. However, to minimize any potential confusion, paragraph (b)(2) is added to the DFARS 252.204-7014 clause to state more clearly that it does not authorize the contractor to release litigation information outside the contractor's organization without permission of the contracting officer. Contracting officers, in conjunction with the Government litigation team, maintain control over the flow of information to litigation support contractors and outside parties. 8. Prescription Conflict Comment: One respondent pointed out that the prescription in the interim rule at DFARS 204.7403(c) would have precluded DFARS 252.204- 7015 from ever being included in a contract. Response: This error was corrected in a technical amendment to the DFARS published in the Federal Register at 79 FR 13568 on March 11, 2014. C. Other Changes A summary of revisions made to the rule to make necessary conforming changes, clarifications, and editorial changes follows: 1. Definitions a. The definition of ``litigation information'' is revised to clarify that information contained in publicly available solicitations will not be protected from disclosure as litigation information, because the information has already been released to the public. A corresponding policy statement is also added at DFARS 204.7402(c). b. A policy statement is added at DFARS 204.7402(d) to state that contracting officers, when sharing sensitive information with a litigation support contractor, shall ensure that all other applicable requirements for handling and safeguarding the relevant types of sensitive information re included in the contract (e.g., FAR subparts 4.4 and 24.1; DFARS subparts 204.4 and 224.1). c. The definition of ``litigation support contractor'' is revised to clarify that, in addition to experts and technical consultants, the term also includes the contractor's subcontractors and suppliers. The text ``the Department of Defense'' is also removed, since the clause is only used in DoD contracts. d. DFARS subpart 204.74, the provision at 252.204-7013, and the clauses at 252.204-7014 and 252.204-7015 are revised to include the full text of all relevant definitions, rather than cross-referencing the definitions that were provided in full-text only in the contract clause at DFARS 252.204-7014. Further, the definition of ``sensitive information'' is clarified by removing the term ``confidential information'' and replacing it with ``controlled unclassified information'' in subpart 204.74, the provision, and the clauses. 2. Conforming Changes a. A conforming change has been made to DFARS 209.505-4(b)(i) in order to differentiate between the requirements that pertain to litigation support contractors from the requirements for other contractors, consistent with the changes in this rule. b. DFARS 209.505-4(b)(ii) is added to clarify the policies and procedures (set forth in 204.74 and associated provisions and clauses) governing access to proprietary information for litigation support activities as an element of the coverage for organizational and consultant conflicts of interest. 3. Technical Clarifications a. At paragraph (c)(2) of the provision at DFARS 252.204-7013 and at paragraph (d)(2) of the clause at DFARS 252.204-7014, the reference to ``data or software'' is changed to ``litigation information'' and the reference to ``the unauthorized duplication, release or disclosure'' is changed to ``any such unauthorized use or disclosure,'' to more accurately refer to all of the unauthorized activities described at paragraph (c)(1) of the provision and paragraph (d)(1) of the clause. b. The term ``Solicitation'' is removed from the title of the provision at DFARS 252.204-7013, as it is not necessary because the title already refers to ``Offerors.'' c. Paragraph (b) of the clause at DFARS 252.204-7014 is revised to state that the contractor ``shall'' instead of ``agrees and acknowledges'' to ensure the contractor complies with the limitations set forth in paragraph (b) during contract performance. d. The title of the clause at DFARS 252.204-7015 is revised to ``Notice of Authorized Disclosure of Information for Litigation Support'' to more accurately depict the intent of the clause. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items The prescriptions for use of the provision and clauses of this rule, which implement section 802 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 (Pub. L. 112-81) include use in contracts and subcontracts valued at or below the simplified acquisition threshold (SAT) and contracts and subcontracts for the acquisition of commercial items, including commercially available off- the-shelf (COTS) items. A. Applicability to Contracts at or Below the SAT 41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Director, Defense Procurement and Acquisition Policy (DPAP), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. DoD has determined that it is in the best interest of the Federal Government to apply the rule to contracts and subcontracts in amounts not greater than the SAT. Section 802 of the NDAA for FY 2012 was enacted to ensure DoD ligation support contractors protect sensitive information from any unauthorized disclosure and are prohibited from using such information for any purpose other than providing [[Page 28727]] litigation support services to DoD. Based on data available in the Federal Procurement Data System (FPDS) for FY 2015, 421 of the 453 total DoD awards for professional attorney services or associated legal services were valued at less than the SAT. An exception for contracts valued at or under the SAT would exclude a large portion (93 percent) of the contracts intended to be covered by section 802, thereby undermining the overarching public policy purpose of the law and adversely affecting the Government's ability to successfully engage in legal proceedings. B. Applicability to Contracts for the Acquisition of Commercial Items, Including COTS Items 41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS items, with the Administrator for Federal Procurement Policy the decision authority to determine that it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. The Director, DPAP, is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. Given that the requirements of section 802 of the NDAA for FY 2008 were enacted to protect sensitive information provided to DoD litigation support contractors from unauthorized use and disclosure, DoD has determined that it is in the best interest of the Federal Government to apply the rule to contracts for the acquisition of commercial items, as defined at FAR 2.101. Based on data available in FPDS for FY 2015, 352 of the 453 total DoD awards for legal support services were classified as commercial contracts. An exception for contracts for the acquisition of commercial items, would exclude 78 percent of the contracts intended to be covered by the law, thereby undermining the overarching public policy purpose of the law. IV. 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 a significant regulatory action and, therefore, was 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. V. Regulatory Flexibility Act DoD does not expect this final rule 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. However, a final regulatory flexibility analysis has been prepared and is summarized as follows: This rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement statutory authority (10 U.S.C. 129d) for DoD to allow its litigation support contractors to have access to ``sensitive information,'' provided that the litigation support contractor is subject to certain restrictions on using and disclosing such information. The objective of the rule is to expressly authorize DoD to provide its ligation support contractors with access to certain types of non- public information, provided that the ligation support contractors are required to protect that information from any unauthorized disclosure, and are prohibited from using that for any purpose other than providing litigation support services to DoD. No significant issues were raised by the public comments in response to the initial regulatory flexibility analysis published with the interim rule. According to data available in the Federal Procurement Data System for fiscal year 2015, DoD awarded 453 total contracts for legal support services to 212 unique vendors. Of those awards, 340 awards or 75 percent were made to 162 small businesses. The rule imposes no reporting, recordkeeping, or other information collection requirements; rather, the rule subjects litigation support contractors to certain restrictions on using and disclosing litigation support information. DoD organizations using litigation support contractors are generally already using very restrictive nondisclosure agreements to govern any sensitive information that may be provided to, or developed or discovered by, the litigation support contractors in providing litigation support services for DoD. These DoD organizations will likely review their current practices and make any necessary modifications to ensure that there are no inconsistencies with the new requirements. As such, DoD does not expect the rule to have a significant economic impact on the small businesses affected by this rule. There are no known significant alternatives to the rule. The impact of this rule on small business is not expected to be significant. VI. Paperwork Reduction Act The rule contains no new 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 204, 209, 212, 227, 237, and 252 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, the interim rule amending 48 CFR parts 204, 212, 227, 237, and 252 which was published at 79 FR 11338 on February 28, 2014, is adopted as a final rule with the following changes: 0 1. The authority citation for 48 CFR parts 204, 209, 212, and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 204--ADMINISTRATIVE MATTERS 0 2. Section 204.7401 is revised to read as follows: 204.7401 Definitions. As used in this subpart-- Computer software means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation. Litigation information means any information, including sensitive information, that is furnished to the [[Page 28728]] contractor by or on behalf of the Government, or that is generated or obtained by the contractor in the performance of litigation support under a contract. The term does not include information that is lawfully, publicly available without restriction, including information contained in a publicly available solicitation. Litigation support means administrative, technical, or professional services provided in support of the Government during or in anticipation of litigation. Litigation support contractor means a contractor (including its experts, technical consultants, subcontractors, and suppliers) providing litigation support under a contract that contains the clause at 252.204-7014, Limitations on the Use or Disclosure of Information by Litigation Support Contractors. Sensitive information means controlled unclassified information of a commercial, financial, proprietary, or privileged nature. The term includes technical data and computer software, but does not include information that is lawfully, publicly available without restriction. Technical data means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information. 0 3. Section 204.7402 is amended by adding paragraphs (c) and (d) to read as follows: 204.7402 Policy. * * * * * (c) Information that is publicly available without restriction, including publicly available solicitations for litigation support services, will not be protected from disclosure as litigation information. (d) When sharing sensitive information with a litigation support contractor, contracting officers shall ensure that all other applicable requirements for handling and safeguarding the relevant types of sensitive information are included in the contract (e.g., FAR subparts 4.4 and 24.1; DFARS subparts 204.4 and 224.1). 0 4. Section 204.7403 is revised to read as follows: 204.7403 Solicitation provision and contract clauses. (a) Use the provision at 252.204-7013, Limitations on the Use or Disclosure of Information by Litigation Support Offerors, in all solicitations for contracts that involve litigation support services, including solicitations using FAR part 12 procedures for the acquisition of commercial items. (b) Use the clause at 252.204-7014, Limitations on the Use or Disclosure of Information by Litigation Support Contractors, in all solicitations and contracts that involve litigation support services, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items. (c) Use the clause at 252.204-7015, Notice of Authorized Disclosure of Information for Litigation Support, in all solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items. PART 209--CONTRACTOR QUALIFICATIONS 0 5. Amend section 209.505-4 by-- 0 a. Redesignating paragraph (b) as paragraph (b)(i); 0 b. In newly resdesignated paragraph (b)(i), removing ``For contractors'' and adding ``For contractors, other than litigation support contractors,'' in its place; and 0 c. Adding new paragraph (b)(ii). The addition reads as follows: 209.505-4 Obtaining access to proprietary information. (b) * * * (ii) For litigation support contractors accessing litigation information, including that originating from third parties, use and nondisclosure requirements are addressed through the use of the provision at 252.204-7013 and the clause at 252.204-7014, as prescribed at 204.7404(a) and 204.7404(b), respectively. Pursuant to that provision and clause, litigation support contractors are not required to enter into nondisclosure agreements directly with any third party asserting restrictions on any litigation information. PART 212--SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR THE ACQUISITION OF COMMERCIAL ITEMS 212.301 [Amended] 0 6. Amend section 212.301 by-- 0 a. In paragraph (f)(ii)(E), removing the term ``Solicitation''; and 0 b. In paragraph (f)(ii)(G), removing ``Disclosure of Information to Litigation Support Contractors'' and adding ``Notice of Authorized Disclosure of Information for Litigation Support'' in its place. PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 7. Amend section 252.204-7013 by-- 0 a. Revising the section heading. 0 b. In the clause heading, removing ``Support Solicitation Offerors'' and adding ``Support Offerors'' in its place; 0 c. Removing the clause date ``(FEB 2014)'' and adding ``(MAY 2016)'' in its place; 0 d. Revising paragraph (a). 0 e. In the paragraph (b) introductory text, adding ``that'' after ``acknowledges''; 0 f. In paragraph (b)(1), removing ``That all'' and adding ``All'' in its place; 0 g. In paragraph (b)(2), removing ``That the'' and adding ``The'' in its place; 0 h. In paragraph (b)(3), removing ``That'' and adding ``The'' in its place and removing ``contracts.'' and adding ``contracts; and'' in its place; 0 i. Adding paragraph (b)(4); and 0 j. In paragraph (c)(2), removing ``such data or software, for the unauthorized duplication, release, or disclosure'' and adding ``such litigation information, for any such unauthorized use or disclosure'' in its place. The revisions and addition read as follows: 252.204-7013 Limitations on the Use or Disclosure of Information by Litigation Support Offerors. * * * * * (a) Definitions. As used in this provision-- Computer software means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation. Litigation information means any information, including sensitive information, that is furnished to the contractor by or on behalf of the Government, or that is generated or obtained by the contractor in the performance of litigation support under a contract. The term does not include information that is lawfully, publicly available without restriction, including information contained in a publicly available solicitation. Litigation support means administrative, technical, or professional services provided in support of the Government during or in anticipation of litigation. Sensitive information means controlled unclassified information of a [[Page 28729]] commercial, financial, proprietary, or privileged nature. The term includes technical data and computer software, but does not include information that is lawfully, publicly available without restriction. Technical data means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information. (b) * * * (4) Upon completion of the authorized litigation support activities, the Offeror will destroy or return to the Government at the request of the Contracting Officer all litigation information in its possession. * * * * * 0 8. Amend section 252.204-7014 by-- 0 a. In the clause heading, removing the clause date ``(FEB 2014)'' and adding ``(MAY 2016)'' in its place; 0 b. In paragraph (a), revising the introductory text and the definitions of ``Litigation information'', ``Litigation support contractor'', and ``Sensitive information''; 0 c. Revising paragraph (b); 0 d. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), and (f); 0 e. Adding a new paragraph (c); 0 f. In newly redesignated paragraph (d)(2), removing ``such data or software, for the unauthorized duplication, release, or disclosure'' and adding ``such litigation information, for any such unauthorized use or disclosure'' in its place; and 0 g. In newly redesignated paragraph (f), removing ``this paragraph (e)'' and add ``this paragraph (f)'' in its place. The revisions and addition read as follows: 252.204-7014 Limitations on the Use or Disclosure of Information by Litigation Support Contractors. * * * * * (a) Definitions. As used in this clause-- * * * * * Litigation information means any information, including sensitive information, that is furnished to the contractor by or on behalf of the Government, or that is generated or obtained by the contractor in the performance of litigation support under a contract. The term does not include information that is lawfully, publicly available without restriction, including information contained in a publicly available solicitation. * * * * * Litigation support contractor means a contractor (including its experts, technical consultants, subcontractors, and suppliers) providing litigation support under a contract that contains this clause. Sensitive information means controlled unclassified information of a commercial, financial, proprietary, or privileged nature. The term includes technical data and computer software, but does not include information that is lawfully, publicly available without restriction. * * * * * (b) Limitations on use or disclosure of litigation information. Notwithstanding any other provision of this contract, the Contractor shall-- (1) Access and use litigation information only for the purpose of providing litigation support under this contract; (2) Not disclose litigation information to any entity outside the Contractor's organization unless, prior to such disclosure the Contracting Officer has provided written consent to such disclosure; (3) Take all precautions necessary to prevent unauthorized disclosure of litigation information; (4) Not use litigation information to compete against a third party for Government or nongovernment contracts; and (5) Upon completion of the authorized litigation support activities, destroy or return to the Government at the request of the Contracting Officer all litigation information in its possession. (c) Violation of paragraph (b)(1),(b)(2), (b)(3), (b)(4), or (b)(5) of this clause is a basis for the Government to terminate this contract. * * * * * 0 9. Amend section 252.204-7015 by-- 0 a. Revising the section heading, introductory text, the clause heading, and paragraph (a); and 0 b. In the paragraph (b) heading, removing ``Authorized disclosure'' and adding ``Notice of authorized disclosures'' in its place. The revision read as follows: 252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support. As prescribed in 204.7403(c), use the following clause: Notice of Authorized Disclosure of Information for Litigation Support (May 2016) (a) Definitions. As used in this clause-- Computer software means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation. Litigation support means administrative, technical, or professional services provided in support of the Government during or in anticipation of litigation. Litigation support contractor means a contractor (including its experts, technical consultants, subcontractors, and suppliers) providing litigation support under a contract that contains the clause at 252.204-7014, Limitations on the Use or Disclosure of Information by Litigation Support Contractors. Sensitive information means controlled unclassified information of a commercial, financial, proprietary, or privileged nature. The term includes technical data and computer software, but does not include information that is lawfully, publicly available without restriction. Technical data means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information. * * * * * [FR Doc. 2016-10822 Filed 5-9-16; 8:45 am] BILLING CODE 5001-06-P
![28724 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations
governments. The action imposes no J. Executive Order 12898: Federal (e) * * *
enforceable duty on any state, local or Actions To Address Environmental (1) The total term for a permit for a
tribal governments or the private sector. Justice in Minority Populations and project including renewals may not
The costs involved in this action are Low-Income Populations exceed twenty-one (21) years; and
imposed only by voluntary participation The EPA believes the human health * * * * *
in a federal program. and environmental risk addressed by [FR Doc. 2016–10993 Filed 5–9–16; 8:45 am]
this action will not have a new BILLING CODE 6560–50–P
E. Executive Order 13132: Federalism
disproportionately high and adverse
This action does not have federalism human health or environmental effects
implications. It will not have substantial on minority, low-income or indigenous DEPARTMENT OF DEFENSE
direct effects on the states, on the populations. The underlying RD&D
regulations require all RD&D permits to Defense Acquisition Regulations
relationship between the national System
government and the states, or on the include terms and conditions that are at
least as protective as the criteria for
distribution of power and 48 CFR Parts 204, 209, 212, 227, 237,
municipal solid waste landfills to assure
responsibilities among the various protection of human health and the and 252
levels of government. environment. This final rule is an [Docket DARS–2014–0017]
F. Executive Order 13175: Consultation administrative action to extend the
maximum permit period, and it does not RIN 0750–AH54
and Coordination With Indian Tribal
Governments reopen or otherwise change the
Defense Federal Acquisition
requirement for protectiveness.
Regulation Supplement: Disclosure to
This action does not have tribal Therefore, the EPA finds that the human
Litigation Support Contractors (DFARS
implications as specified in Executive health and environmental risks
Case 2012–D029)
Order 13175. The EPA has concluded addressed by this action will not have
that this action will have no new tribal disproportionately high and adverse AGENCY: Defense Acquisition
implications, nor would it present any human health or environmental effects Regulations System, Department of
additional burden on the tribes. It will on minority, low-income or indigenous Defense (DoD).
neither impose substantial direct populations, because this action does ACTION: Final rule.
compliance costs on tribal governments, not affect the level of protection
provided to human health or the SUMMARY: DoD is adopting as final, with
nor preempt tribal law. Thus, Executive
environment. changes, an interim rule amending the
Order 13175 does not apply to this
Defense Federal Acquisition Regulation
action. K. Congressional Review Act (CRA) Supplement (DFARS) to implement a
G. Executive Order 13045: Protection of This action is subject to the CRA, and section of the National Defense
Children From Environmental Health the EPA will submit a rule report to Authorization Act for Fiscal Year 2012
Risks and Safety Risks each House of the Congress and to the that provides DoD the authority to allow
Comptroller General of the United its litigation support contractors access
This action is not subject to Executive States. This action is not a ‘‘major rule’’ to ‘‘sensitive information’’ subject to
Order 13045, because it is not as defined by 5 U.S.C. 804(2). certain restrictions.
economically significant as defined in List of Subjects in 40 CFR Part 258 DATES: Effective May 10, 2016.
Executive Order 12866, and because the FOR FURTHER INFORMATION CONTACT: Ms.
EPA does not believe the environmental Environmental protection, Municipal
Amy G. Williams, telephone 571–372–
health or safety risks addressed by this landfills, Reporting and recordkeeping
6106.
action present a disproportionate risk to requirements, Waste treatment and
disposal. SUPPLEMENTARY INFORMATION:
children. The underlying RD&D rule
requires all RD&D permits to include Dated: April 29, 2016. I. Background
terms and conditions that are at least as Gina McCarthy, DoD published an interim rule in the
protective as the criteria for municipal Administrator. Federal Register at 79 FR 11337 on
solid waste landfills to assure protection For the reasons set forth in the February 28, 2014, to implement section
of human health and the environment, preamble, EPA amends 40 CFR part 258 802 of the National Defense
and this rule does not reopen or as follows: Authorization Act for Fiscal Year 2012
otherwise change that requirement. (Pub. L. 112–81), which provides DoD
PART 258—CRITERIA FOR MUNICIPAL the express authority to allow its
H. Executive Order 13211: Actions SOLID WASTE LANDFILLS litigation support contractors access to
Concerning Regulations That ‘‘sensitive information,’’ provided that
Significantly Affect Energy Supply, ■ 1. The authority citation for part 258 the litigation support contractor is
Distribution or Use continues to read as follows: subject to certain restrictions on using
Authority: 33 U.S.C. 1345(d) and (e); 42 and disclosing such information. Two
This action is not subject to Executive U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c) respondents submitted public
Order 13211, because it is not a and 6949a(c), 6981(a). comments in response to the interim
significant regulatory action under rule.
Executive Order 12866. Subpart A—General
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II. Discussion and Analysis
I. National Technology Transfer and ■ 2. Revise § 258.4(e)(1) to read as
follows: DoD reviewed the public comments in
Advancement Act (NTTAA)
the development of the final rule. A
This rulemaking does not involve § 258.4 Research, development, and discussion of the comments received
demonstration permits. and the changes made to the rule as a
technical standards.
* * * * * result of those comments follows:
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![28728 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations
contractor by or on behalf of the that involve litigation support services, PART 252—SOLICITATION
Government, or that is generated or including solicitations using FAR part PROVISIONS AND CONTRACT
obtained by the contractor in the 12 procedures for the acquisition of CLAUSES
performance of litigation support under commercial items.
a contract. The term does not include (b) Use the clause at 252.204–7014, ■ 7. Amend section 252.204–7013 by—
information that is lawfully, publicly Limitations on the Use or Disclosure of ■ a. Revising the section heading.
available without restriction, including Information by Litigation Support ■ b. In the clause heading, removing
information contained in a publicly Contractors, in all solicitations and ‘‘Support Solicitation Offerors’’ and
available solicitation. contracts that involve litigation support adding ‘‘Support Offerors’’ in its place;
Litigation support means services, including solicitations and ■ c. Removing the clause date ‘‘(FEB
administrative, technical, or contracts using FAR part 12 procedures 2014)’’ and adding ‘‘(MAY 2016)’’ in its
professional services provided in for the acquisition of commercial items. place;
support of the Government during or in ■ d. Revising paragraph (a).
(c) Use the clause at 252.204–7015,
anticipation of litigation. ■ e. In the paragraph (b) introductory
Notice of Authorized Disclosure of
Litigation support contractor means a Information for Litigation Support, in all text, adding ‘‘that’’ after
contractor (including its experts, solicitations and contracts, including ‘‘acknowledges’’;
technical consultants, subcontractors, ■ f. In paragraph (b)(1), removing ‘‘That
solicitations and contracts using FAR
and suppliers) providing litigation part 12 procedures for the acquisition of all’’ and adding ‘‘All’’ in its place;
support under a contract that contains ■ g. In paragraph (b)(2), removing ‘‘That
commercial items.
the clause at 252.204–7014, Limitations the’’ and adding ‘‘The’’ in its place;
on the Use or Disclosure of Information PART 209—CONTRACTOR ■ h. In paragraph (b)(3), removing
by Litigation Support Contractors. QUALIFICATIONS ‘‘That’’ and adding ‘‘The’’ in its place
Sensitive information means and removing ‘‘contracts.’’ and adding
controlled unclassified information of a ■ 5. Amend section 209.505–4 by— ‘‘contracts; and’’ in its place;
commercial, financial, proprietary, or ■ a. Redesignating paragraph (b) as ■ i. Adding paragraph (b)(4); and
privileged nature. The term includes paragraph (b)(i); ■ j. In paragraph (c)(2), removing ‘‘such
technical data and computer software, ■ b. In newly resdesignated paragraph
data or software, for the unauthorized
but does not include information that is (b)(i), removing ‘‘For contractors’’ and duplication, release, or disclosure’’ and
lawfully, publicly available without adding ‘‘For contractors, other than adding ‘‘such litigation information, for
restriction. litigation support contractors,’’ in its any such unauthorized use or
Technical data means recorded place; and disclosure’’ in its place.
information, regardless of the form or The revisions and addition read as
■ c. Adding new paragraph (b)(ii).
method of the recording, of a scientific follows:
or technical nature (including computer The addition reads as follows:
252.204–7013 Limitations on the Use or
software documentation). The term does 209.505–4 Obtaining access to proprietary Disclosure of Information by Litigation
not include computer software or data information. Support Offerors.
incidental to contract administration, (b) * * *
such as financial and/or management * * * * *
(ii) For litigation support contractors (a) Definitions. As used in this
information.
accessing litigation information, provision—
■ 3. Section 204.7402 is amended by including that originating from third Computer software means computer
adding paragraphs (c) and (d) to read as parties, use and nondisclosure programs, source code, source code
follows: requirements are addressed through the listings, object code listings, design
204.7402 Policy. use of the provision at 252.204–7013 details, algorithms, processes, flow
and the clause at 252.204–7014, as charts, formulae, and related material
* * * * *
(c) Information that is publicly prescribed at 204.7404(a) and that would enable the software to be
available without restriction, including 204.7404(b), respectively. Pursuant to reproduced, recreated, or recompiled.
publicly available solicitations for that provision and clause, litigation Computer software does not include
litigation support services, will not be support contractors are not required to computer data bases or computer
protected from disclosure as litigation enter into nondisclosure agreements software documentation.
information. directly with any third party asserting Litigation information means any
(d) When sharing sensitive restrictions on any litigation information, including sensitive
information with a litigation support information. information, that is furnished to the
contractor, contracting officers shall contractor by or on behalf of the
PART 212—SOLICITATION Government, or that is generated or
ensure that all other applicable
PROVISIONS AND CONTRACT obtained by the contractor in the
requirements for handling and
CLAUSES FOR THE ACQUISITION OF performance of litigation support under
safeguarding the relevant types of
COMMERCIAL ITEMS a contract. The term does not include
sensitive information are included in
the contract (e.g., FAR subparts 4.4 and 212.301 [Amended] information that is lawfully, publicly
24.1; DFARS subparts 204.4 and 224.1). available without restriction, including
■ 6. Amend section 212.301 by— information contained in a publicly
■ 4. Section 204.7403 is revised to read
■ a. In paragraph (f)(ii)(E), removing the available solicitation.
as follows:
term ‘‘Solicitation’’; and Litigation support means
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204.7403 Solicitation provision and ■ b. In paragraph (f)(ii)(G), removing administrative, technical, or
contract clauses. ‘‘Disclosure of Information to Litigation professional services provided in
(a) Use the provision at 252.204–7013, Support Contractors’’ and adding support of the Government during or in
Limitations on the Use or Disclosure of ‘‘Notice of Authorized Disclosure of anticipation of litigation.
Information by Litigation Support Information for Litigation Support’’ in Sensitive information means
Offerors, in all solicitations for contracts its place. controlled unclassified information of a
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![Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 28729
commercial, financial, proprietary, or Litigation support contractor means a listings, object code listings, design
privileged nature. The term includes contractor (including its experts, details, algorithms, processes, flow
technical data and computer software, technical consultants, subcontractors, charts, formulae, and related material
but does not include information that is and suppliers) providing litigation that would enable the software to be
lawfully, publicly available without support under a contract that contains reproduced, recreated, or recompiled.
restriction. this clause. Computer software does not include
Technical data means recorded Sensitive information means computer data bases or computer
information, regardless of the form or controlled unclassified information of a software documentation.
method of the recording, of a scientific commercial, financial, proprietary, or Litigation support means
or technical nature (including computer privileged nature. The term includes administrative, technical, or
software documentation). The term does technical data and computer software, professional services provided in
not include computer software or data but does not include information that is support of the Government during or in
incidental to contract administration, lawfully, publicly available without anticipation of litigation.
such as financial and/or management restriction. Litigation support contractor means a
information. * * * * * contractor (including its experts,
(b) * * * (b) Limitations on use or disclosure of technical consultants, subcontractors,
(4) Upon completion of the authorized litigation information. Notwithstanding and suppliers) providing litigation
litigation support activities, the Offeror any other provision of this contract, the support under a contract that contains
will destroy or return to the Government Contractor shall— the clause at 252.204–7014, Limitations
at the request of the Contracting Officer (1) Access and use litigation on the Use or Disclosure of Information
all litigation information in its information only for the purpose of by Litigation Support Contractors.
possession. providing litigation support under this Sensitive information means
* * * * * contract; controlled unclassified information of a
■ 8. Amend section 252.204–7014 by— (2) Not disclose litigation information commercial, financial, proprietary, or
■ a. In the clause heading, removing the to any entity outside the Contractor’s privileged nature. The term includes
clause date ‘‘(FEB 2014)’’ and adding organization unless, prior to such technical data and computer software,
‘‘(MAY 2016)’’ in its place; disclosure the Contracting Officer has but does not include information that is
■ b. In paragraph (a), revising the provided written consent to such lawfully, publicly available without
introductory text and the definitions of disclosure; restriction.
‘‘Litigation information’’, ‘‘Litigation (3) Take all precautions necessary to Technical data means recorded
support contractor’’, and ‘‘Sensitive prevent unauthorized disclosure of information, regardless of the form or
information’’; litigation information; method of the recording, of a scientific
■ c. Revising paragraph (b); (4) Not use litigation information to or technical nature (including computer
■ d. Redesignating paragraphs (c), (d), compete against a third party for software documentation). The term does
and (e) as paragraphs (d), (e), and (f); Government or nongovernment not include computer software or data
■ e. Adding a new paragraph (c); contracts; and incidental to contract administration,
■ f. In newly redesignated paragraph (5) Upon completion of the authorized such as financial and/or management
(d)(2), removing ‘‘such data or software, litigation support activities, destroy or information.
for the unauthorized duplication, return to the Government at the request * * * * *
release, or disclosure’’ and adding ‘‘such of the Contracting Officer all litigation [FR Doc. 2016–10822 Filed 5–9–16; 8:45 am]
litigation information, for any such information in its possession. BILLING CODE 5001–06–P
unauthorized use or disclosure’’ in its (c) Violation of paragraph (b)(1),(b)(2),
place; and (b)(3), (b)(4), or (b)(5) of this clause is a
■ g. In newly redesignated paragraph (f), basis for the Government to terminate DEPARTMENT OF DEFENSE
removing ‘‘this paragraph (e)’’ and add this contract.
‘‘this paragraph (f)’’ in its place. * * * * * Defense Acquisition Regulations
The revisions and addition read as System
■ 9. Amend section 252.204–7015 by—
follows:
■ a. Revising the section heading,
252.204–7014 Limitations on the Use or introductory text, the clause heading, 48 CFR Parts 212, 215, 216, and 225
Disclosure of Information by Litigation and paragraph (a); and
Support Contractors. ■ b. In the paragraph (b) heading,
Defense Federal Acquisition
removing ‘‘Authorized disclosure’’ and Regulation Supplement; Technical
* * * * *
(a) Definitions. As used in this adding ‘‘Notice of authorized Amendments
clause— disclosures’’ in its place. AGENCY: Defense Acquisition
* * * * * The revision read as follows: Regulations System, Department of
Litigation information means any Defense (DoD).
252.204–7015 Notice of Authorized
information, including sensitive Disclosure of Information for Litigation ACTION: Final rule.
information, that is furnished to the Support.
contractor by or on behalf of the SUMMARY: DoD is making technical
As prescribed in 204.7403(c), use the amendments to the Defense Federal
Government, or that is generated or following clause:
obtained by the contractor in the Acquisition Regulation Supplement
performance of litigation support under Notice of Authorized Disclosure of (DFARS) to provide needed editorial
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a contract. The term does not include Information for Litigation Support (May changes.
information that is lawfully, publicly 2016) DATES: Effective May 10, 2016.
available without restriction, including (a) Definitions. As used in this FOR FURTHER INFORMATION CONTACT: Ms.
information contained in a publicly clause— Jennifer L. Hawes, Defense Acquisition
available solicitation. Computer software means computer Regulations System,
* * * * * programs, source code, source code OUSD(AT&L)DPAP(DARS), Room
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Document Created: 2016-05-10 05:19:28
Document Modified: 2016-05-10 05:19:28
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective May 10, 2016. | |
| Contact | Ms. Amy G. Williams, telephone 571- 372-6106. | |
| FR Citation | 81 FR 28724 | |
| RIN Number | 0750-AH54 | |
| CFR Citation | 48
CFR
204 48 CFR 209 48 CFR 212 48 CFR 227 48 CFR 237 48 CFR 252 |
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