81_FR_28814 81 FR 28724 - Defense Federal Acquisition Regulation Supplement: Disclosure to Litigation Support Contractors (DFARS Case 2012-D029)

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)

Page Range28724-28729
FR Document2016-10822

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.

Federal Register, Volume 81 Issue 90 (Tuesday, May 10, 2016)
[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]


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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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                                                               Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations                                         28725

                                           A. Summary of Significant Changes                       definition as the respondent suggests                 multiple copies of the same information
                                           From the Interim Rule                                   would obviate the need for any statutory              increases the risk of inadvertent
                                             1. A new paragraph (b)(4) is added to                 authorization. The new DFARS subpart                  disclosure and the cost of performance
                                           the provision at DFARS 252.204–7013                     204.74 established by the interim rule                and administration. No change is made
                                           and a new paragraph (b)(5) is added to                  implements the statutory authorization                in the final rule.
                                           the clause at DFARS 252.204–7014 to                     for litigation information, including                 5. Third Party Beneficiary Rights
                                           clarify that the offeror and the                        sensitive information owned by or
                                                                                                   obtained from non-DoD sources.                           Comment: One respondent stated that
                                           contractor, respectively, shall destroy or
                                                                                                   Disclosure of such information is thus                if ‘‘sensitive information’’ includes
                                           return to the Government, at the request
                                                                                                   authorized by law when done pursuant                  information owned by third parties,
                                           of the contracting officer, all litigation
                                                                                                   to DFARS subpart 204.74. No change is                 then the interim rule should be
                                           information in its possession upon
                                                                                                   made in the final rule.                               amended to require litigation support
                                           completion of the authorized litigation
                                                                                                                                                         contractors to comply with Federal
                                           support activities.                                     2. Safeguarding Unclassified Controlled
                                             2. A new paragraph (b)(2) is added to                                                                       Acquisition Regulation (FAR) 9.505–
                                                                                                   Technical Information                                 4(b) and have a direct nondisclosure
                                           the clause at DFARS 252.204–7014 to
                                           clarify that the contractor shall not                      Comment: One respondent questioned                 agreement between the owner of the
                                           disclose litigation information to any                  whether litigation support contractors,               sensitive information and the litigation
                                           entity outside the contractor’s                         and their subcontractors, will be                     support contractor. The respondent also
                                           organization unless, prior to disclosure,               required to comply with the                           stated that the third party beneficiary
                                           the contracting officer has provided                    requirements at DFARS clause 252.204–                 rights are illusory without notice to the
                                           written consent.                                        7012, formerly entitled ‘‘Safeguarding of             owner of the sensitive information.
                                                                                                   Unclassified Controlled Technical                        Response: A direct nondisclosure
                                           B. Analysis of Public Comments                          Information.’’                                        agreement or prior notice requirement
                                           1. Inclusion of Third Party Information                    Response: The requirements of the                  could prejudice the Government by
                                                                                                   clause at DFARS 252.204–7012, now                     providing premature warning of
                                              Comment: One respondent                              entitled ‘‘Safeguarding Covered Defense               possible litigation or of the
                                           commented that the interim rule went                    Information and Cyber Incident                        Government’s litigation strategies.
                                           beyond the definition of ‘‘sensitive                    Reporting,’’ will apply to contractors,               Accordingly, DoD has determined that
                                           information’’ provided in 10 U.S.C.                     and their subcontractors, as required by              requiring a direct nondisclosure
                                           129d because, as implemented,                           the clause.                                           agreement pursuant to FAR 9.505–4(b)
                                           ‘‘sensitive information’’ is not limited to                                                                   for litigation support contractors would
                                           information owned by the Department                     3. Disposition of Litigation Information
                                                                                                                                                         not be in the Government’s interest. 10
                                           of Defense. The respondent suggested                       Comment: One respondent suggested                  U.S.C. 129d does not require that DoD
                                           that the absence of the language                        that the interim rule should be amended               confer upon an owner of sensitive
                                           ‘‘obtained from a person’’ as used in                   to include requirements for the                       information any third party beneficiary
                                           Exemption 4 of the Freedom of                           information provided to a litigation                  rights; however, at paragraph (d) of the
                                           Information Act (5 U.S.C. 552(b)(4))                    support contractor to be destroyed or                 clause at 252.204–7014, DoD has chosen
                                           indicates that 10 U.S.C. 129d was                       returned to DoD when no longer needed                 to provide third party beneficiary rights
                                           intended to apply only to information                   or at the end of contract performance.                analogous to those afforded by
                                           ‘‘owned by the Department of Defense.’’                    Response: Paragraph (b)(4) is added to             paragraph (c) of the clause at DFARS
                                           The respondent stated that because the                  the provision at DFARS 252.204–7013                   252.227–7025. No change is made in the
                                           interim rule does not limit the scope of                and paragraph (b)(5) is added to the                  final rule as a result of this comment.
                                           sensitive information to only                           clause at DFARS 252.204–7014 to
                                           information owned by DoD, the rule                      clarify that the contractor shall destroy             6. Appropriateness of an Interim Rule
                                           could expose the Government to                          or return to the Government, at the                      Comment: One respondent stated that
                                           liability or penalties for unauthorized                 request of the contracting officer, all               issuing an interim rule was not
                                           disclosure of information under the                     litigation information in its possession              appropriate because there was
                                           Federal Tort Claims Act, or a taking of                 upon completion of the authorized                     inadequate justification for the
                                           property under the U.S. Constitution,                   litigation support activities.                        determination of urgent or compelling
                                           the Procurement Integrity Act, 41 U.S.C.                                                                      reasons for doing so. The respondent
                                           2101 et seq., and the Trade Secrets Act,                4. Use of Litigation Information
                                                                                                                                                         suggested that, without further
                                           18 U.S.C. 1905. The respondent called                      Comment: One respondent suggested                  justification, a proposed rule was more
                                           for rescission of the interim rule until                limiting the authorized use of litigation             appropriate and urged rescission of the
                                           the definition of ‘‘sensitive information’’             information to the litigation support                 interim rule.
                                           was narrowed.                                           required by the individual contract,                     Response: DoD published the basis for
                                              Response: The statutory language and                 under which the litigation information                its determination that urgent and
                                           legislative history do not indicate that                was received.                                         compelling reasons existed to authorize
                                           10 U.S.C. 129d is limited only to                          Response: Litigation support                       the use of an interim rule. After
                                           information owned by the Department                     contractors must be able to use the                   consideration of the respondent’s
                                           of Defense (or the U.S. Government).                    litigation information provided by the                comment, DoD determined that
                                           Prior to, and notwithstanding, the                      Government as needed. A contractor                    rescission of the interim rule was not
                                           enactment of the statute, DoD was                       may provide litigation support under                  warranted.
                                           authorized to disclose information that                 multiple contracts. In such instances,
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                                           it owns. 10 U.S.C. 129d authorizes                      limiting the scope of authorized use to               7. Release of Information to Litigation
                                           disclosure of ‘‘sensitive information,’’                only the contract under which the                     Support Subcontractors
                                           without limitation related to the                       litigation information was provided                      Comment: One respondent stated that
                                           ownership or source of the information,                 could require the Government to                       while litigation support contractors are
                                           for the sole purpose of providing                       provide the same information multiple                 required to flow down the clause at
                                           litigation support to DoD. To narrow the                times. Having to exchange and handle                  DFARS 252.204–7014 to subcontractors,


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                                           28726               Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations

                                           it is not clear whether litigation support              A corresponding policy statement is                      b. The term ‘‘Solicitation’’ is removed
                                           contractors and any subcontractors                      also added at DFARS 204.7402(c).                      from the title of the provision at DFARS
                                           would be subject to DFARS clause                          b. A policy statement is added at                   252.204–7013, as it is not necessary
                                           252.204–7000, Disclosure of                             DFARS 204.7402(d) to state that                       because the title already refers to
                                           Information.                                            contracting officers, when sharing                    ‘‘Offerors.’’
                                              Response: This rule does not affect                  sensitive information with a litigation                  c. Paragraph (b) of the clause at
                                           the applicability of the clause DFARS at                support contractor, shall ensure that all             DFARS 252.204–7014 is revised to state
                                           252.204–7000. In accordance with its                    other applicable requirements for                     that the contractor ‘‘shall’’ instead of
                                           prescription at DFARS 204.404–70(a),                    handling and safeguarding the relevant                ‘‘agrees and acknowledges’’ to ensure
                                           the clause applies to all solicitations                 types of sensitive information re                     the contractor complies with the
                                           and contracts when the contractor will                  included in the contract (e.g., FAR                   limitations set forth in paragraph (b)
                                           have access to or generate unclassified                 subparts 4.4 and 24.1; DFARS subparts                 during contract performance.
                                           information that may be sensitive and                   204.4 and 224.1).                                        d. The title of the clause at DFARS
                                           inappropriate for release to the public.                  c. The definition of ‘‘litigation support           252.204–7015 is revised to ‘‘Notice of
                                           That clause will flow down to                           contractor’’ is revised to clarify that, in           Authorized Disclosure of Information
                                           subcontracts, in accordance with                        addition to experts and technical                     for Litigation Support’’ to more
                                           paragraph (c) of the clause. There is no                consultants, the term also includes the               accurately depict the intent of the
                                           conflict between the DFARS 252.204–                                                                           clause.
                                                                                                   contractor’s subcontractors and
                                           7000 clause and the DFARS 252.204–                      suppliers. The text ‘‘the Department of               III. Applicability to Contracts at or
                                           7014 clause, at the prime or subcontract                Defense’’ is also removed, since the                  Below the Simplified Acquisition
                                           level. The clause at DFARS 252.204–                     clause is only used in DoD contracts.                 Threshold and for Commercial Items,
                                           7000 prohibits the release of                             d. DFARS subpart 204.74, the                        Including Commercially Available Off-
                                           information outside the contractor’s                    provision at 252.204–7013, and the                    the-Shelf Items
                                           organization without permission from                    clauses at 252.204–7014 and 252.204–
                                           the contracting officer, while the DFARS                                                                         The prescriptions for use of the
                                                                                                   7015 are revised to include the full text             provision and clauses of this rule,
                                           252.204–7014 clause requires the                        of all relevant definitions, rather than
                                           litigation support contractor to protect                                                                      which implement section 802 of the
                                                                                                   cross-referencing the definitions that                National Defense Authorization Act
                                           against any unauthorized releases of                    were provided in full-text only in the
                                           information, and does not authorize the                                                                       (NDAA) for Fiscal Year (FY) 2012 (Pub.
                                                                                                   contract clause at DFARS 252.204–7014.                L. 112–81) include use in contracts and
                                           contractor to make any releases outside                 Further, the definition of ‘‘sensitive
                                           the contractor’s organization. However,                                                                       subcontracts valued at or below the
                                                                                                   information’’ is clarified by removing                simplified acquisition threshold (SAT)
                                           to minimize any potential confusion,                    the term ‘‘confidential information’’ and
                                           paragraph (b)(2) is added to the DFARS                                                                        and contracts and subcontracts for the
                                                                                                   replacing it with ‘‘controlled                        acquisition of commercial items,
                                           252.204–7014 clause to state more                       unclassified information’’ in subpart
                                           clearly that it does not authorize the                                                                        including commercially available off-
                                                                                                   204.74, the provision, and the clauses.               the-shelf (COTS) items.
                                           contractor to release litigation
                                           information outside the contractor’s                    2. Conforming Changes                                 A. Applicability to Contracts at or Below
                                           organization without permission of the                     a. A conforming change has been                    the SAT
                                           contracting officer. Contracting officers,              made to DFARS 209.505–4(b)(i) in order                   41 U.S.C. 1905 governs the
                                           in conjunction with the Government                      to differentiate between the                          applicability of laws to contracts or
                                           litigation team, maintain control over                  requirements that pertain to litigation               subcontracts in amounts not greater
                                           the flow of information to litigation                   support contractors from the                          than the SAT. It is intended to limit the
                                           support contractors and outside parties.                requirements for other contractors,                   applicability of laws to such contracts or
                                           8. Prescription Conflict                                consistent with the changes in this rule.             subcontracts. 41 U.S.C. 1905 provides
                                              Comment: One respondent pointed                         b. DFARS 209.505–4(b)(ii) is added to              that if a provision of law contains
                                           out that the prescription in the interim                clarify the policies and procedures (set              criminal or civil penalties, or if the FAR
                                           rule at DFARS 204.7403(c) would have                    forth in 204.74 and associated                        Council makes a written determination
                                           precluded DFARS 252.204–7015 from                       provisions and clauses) governing                     that it is not in the best interest of the
                                           ever being included in a contract.                      access to proprietary information for                 Federal Government to exempt contracts
                                              Response: This error was corrected in                litigation support activities as an                   or subcontracts at or below the SAT, the
                                           a technical amendment to the DFARS                      element of the coverage for                           law will apply to them. The Director,
                                           published in the Federal Register at 79                 organizational and consultant conflicts               Defense Procurement and Acquisition
                                           FR 13568 on March 11, 2014.                             of interest.                                          Policy (DPAP), is the appropriate
                                                                                                                                                         authority to make comparable
                                           C. Other Changes                                        3. Technical Clarifications
                                                                                                                                                         determinations for regulations to be
                                             A summary of revisions made to the                       a. At paragraph (c)(2) of the provision            published in the DFARS, which is part
                                           rule to make necessary conforming                       at DFARS 252.204–7013 and at                          of the FAR system of regulations.
                                           changes, clarifications, and editorial                  paragraph (d)(2) of the clause at DFARS                  DoD has determined that it is in the
                                           changes follows:                                        252.204–7014, the reference to ‘‘data or              best interest of the Federal Government
                                                                                                   software’’ is changed to ‘‘litigation                 to apply the rule to contracts and
                                           1. Definitions                                          information’’ and the reference to ‘‘the              subcontracts in amounts not greater
                                              a. The definition of ‘‘litigation                    unauthorized duplication, release or                  than the SAT. Section 802 of the NDAA
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                                           information’’ is revised to clarify that                disclosure’’ is changed to ‘‘any such                 for FY 2012 was enacted to ensure DoD
                                           information contained in publicly                       unauthorized use or disclosure,’’ to                  ligation support contractors protect
                                           available solicitations will not be                     more accurately refer to all of the                   sensitive information from any
                                           protected from disclosure as litigation                 unauthorized activities described at                  unauthorized disclosure and are
                                           information, because the information                    paragraph (c)(1) of the provision and                 prohibited from using such information
                                           has already been released to the public.                paragraph (d)(1) of the clause.                       for any purpose other than providing


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                                                               Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations                                             28727

                                           litigation support services to DoD. Based               IV. Executive Orders 12866 and 13563                  disclosing litigation support
                                           on data available in the Federal                           Executive Orders (E.O.s) 12866 and                 information. DoD organizations using
                                           Procurement Data System (FPDS) for FY                   13563 direct agencies to assess all costs             litigation support contractors are
                                           2015, 421 of the 453 total DoD awards                   and benefits of available regulatory                  generally already using very restrictive
                                           for professional attorney services or                   alternatives and, if regulation is                    nondisclosure agreements to govern any
                                           associated legal services were valued at                necessary, to select regulatory                       sensitive information that may be
                                           less than the SAT. An exception for                     approaches that maximize net benefits                 provided to, or developed or discovered
                                           contracts valued at or under the SAT                    (including potential economic,                        by, the litigation support contractors in
                                           would exclude a large portion (93                       environmental, public health and safety               providing litigation support services for
                                           percent) of the contracts intended to be                effects, distributive impacts, and                    DoD. These DoD organizations will
                                           covered by section 802, thereby                         equity). E.O. 13563 emphasizes the                    likely review their current practices and
                                           undermining the overarching public                      importance of quantifying both costs                  make any necessary modifications to
                                           policy purpose of the law and adversely                 and benefits, of reducing costs, of                   ensure that there are no inconsistencies
                                           affecting the Government’s ability to                   harmonizing rules, and of promoting                   with the new requirements. As such,
                                           successfully engage in legal                            flexibility. This is a significant                    DoD does not expect the rule to have a
                                           proceedings.                                            regulatory action and, therefore, was                 significant economic impact on the
                                                                                                   subject to review under section 6(b) of               small businesses affected by this rule.
                                           B. Applicability to Contracts for the                                                                            There are no known significant
                                           Acquisition of Commercial Items,                        E.O. 12866, Regulatory Planning and
                                                                                                   Review, dated September 30, 1993. This                alternatives to the rule. The impact of
                                           Including COTS Items                                                                                          this rule on small business is not
                                                                                                   rule is not a major rule under 5 U.S.C.
                                                                                                   804.                                                  expected to be significant.
                                              41 U.S.C. 1906 governs the
                                           applicability of laws to contracts for the              V. Regulatory Flexibility Act                         VI. Paperwork Reduction Act
                                           acquisition of commercial items, and is                                                                         The rule contains no new information
                                           intended to limit the applicability of                     DoD does not expect this final rule to
                                                                                                   have a significant economic impact on                 collection requirements that require the
                                           laws to contracts for the acquisition of                                                                      approval of the Office of Management
                                           commercial items. 41 U.S.C. 1906                        a substantial number of small entities
                                                                                                   within the meaning of the Regulatory                  and Budget under the Paperwork
                                           provides that if a provision of law                                                                           Reduction Act (44 U.S.C. chapter 35).
                                           contains criminal or civil penalties, or if             Flexibility Act, 5 U.S.C. 601, et seq.
                                           the FAR Council makes a written                         However, a final regulatory flexibility               List of Subjects in 48 CFR Parts 204,
                                           determination that it is not in the best                analysis has been prepared and is                     209, 212, 227, 237, and 252
                                           interest of the Federal Government to                   summarized as follows:                                    Government procurement.
                                           exempt commercial item contracts, the                      This rule amends the Defense Federal
                                           provision of law will apply to contracts                Acquisition Regulation Supplement                     Jennifer L. Hawes,
                                           for the acquisition of commercial items.                (DFARS) to implement statutory                        Editor, Defense Acquisition Regulations
                                           Likewise, 41 U.S.C. 1907 governs the                    authority (10 U.S.C. 129d) for DoD to                 System.
                                           applicability of laws to COTS items,                    allow its litigation support contractors                Therefore, the interim rule amending
                                           with the Administrator for Federal                      to have access to ‘‘sensitive                         48 CFR parts 204, 212, 227, 237, and
                                           Procurement Policy the decision                         information,’’ provided that the                      252 which was published at 79 FR
                                           authority to determine that it is in the                litigation support contractor is subject to           11338 on February 28, 2014, is adopted
                                           best interest of the Government to apply                certain restrictions on using and                     as a final rule with the following
                                           a provision of law to acquisitions of                   disclosing such information.                          changes:
                                                                                                      The objective of the rule is to
                                           COTS items in the FAR. The Director,                                                                          ■ 1. The authority citation for 48 CFR
                                                                                                   expressly authorize DoD to provide its
                                           DPAP, is the appropriate authority to                                                                         parts 204, 209, 212, and 252 continues
                                                                                                   ligation support contractors with access
                                           make comparable determinations for                                                                            to read as follows:
                                                                                                   to certain types of non-public
                                           regulations to be published in the                                                                              Authority: 41 U.S.C. 1303 and 48 CFR
                                                                                                   information, provided that the ligation
                                           DFARS, which is part of the FAR system                                                                        chapter 1.
                                                                                                   support contractors are required to
                                           of regulations.
                                                                                                   protect that information from any
                                              Given that the requirements of section                                                                     PART 204—ADMINISTRATIVE
                                                                                                   unauthorized disclosure, and are
                                           802 of the NDAA for FY 2008 were                                                                              MATTERS
                                                                                                   prohibited from using that for any
                                           enacted to protect sensitive information                purpose other than providing litigation               ■ 2. Section 204.7401 is revised to read
                                           provided to DoD litigation support                      support services to DoD.                              as follows:
                                           contractors from unauthorized use and                      No significant issues were raised by
                                           disclosure, DoD has determined that it                  the public comments in response to the                204.7401   Definitions.
                                           is in the best interest of the Federal                  initial regulatory flexibility analysis                  As used in this subpart—
                                           Government to apply the rule to                         published with the interim rule.                         Computer software means computer
                                           contracts for the acquisition of                           According to data available in the                 programs, source code, source code
                                           commercial items, as defined at FAR                     Federal Procurement Data System for                   listings, object code listings, design
                                           2.101. Based on data available in FPDS                  fiscal year 2015, DoD awarded 453 total               details, algorithms, processes, flow
                                           for FY 2015, 352 of the 453 total DoD                   contracts for legal support services to               charts, formulae, and related material
                                           awards for legal support services were                  212 unique vendors. Of those awards,                  that would enable the software to be
                                           classified as commercial contracts. An                  340 awards or 75 percent were made to                 reproduced, recreated, or recompiled.
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                                           exception for contracts for the                         162 small businesses.                                 Computer software does not include
                                           acquisition of commercial items, would                     The rule imposes no reporting,                     computer data bases or computer
                                           exclude 78 percent of the contracts                     recordkeeping, or other information                   software documentation.
                                           intended to be covered by the law,                      collection requirements; rather, the rule                Litigation information means any
                                           thereby undermining the overarching                     subjects litigation support contractors to            information, including sensitive
                                           public policy purpose of the law.                       certain restrictions on using and                     information, that is furnished to the


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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
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective May 10, 2016.
ContactMs. Amy G. Williams, telephone 571- 372-6106.
FR Citation81 FR 28724 
RIN Number0750-AH54
CFR Citation48 CFR 204
48 CFR 209
48 CFR 212
48 CFR 227
48 CFR 237
48 CFR 252

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