[Federal Register: July 12, 2005 (Volume 70, Number 132)]
[Proposed Rules]               
[Page 39976-39978]                     

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DEPARTMENT OF DEFENSE

48 CFR Parts 204, 235, and 252

[DFARS Case 2004-D010]

 
Defense Federal Acquisition Regulation Supplement; Export-
Controlled Information and Technology

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to address requirements for preventing 
unauthorized disclosure of export-controlled information and technology 
under DoD contracts.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before September 12, 2005, to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2004-D010, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.
 Follow the instructions for 

submitting comments.
     E-mail: [email protected] Include DFARS Case 2004-D010 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations Council, Attn: Ms. 
Amy Williams, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, 
Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf
.


FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.

[[Page 39977]]


SUPPLEMENTARY INFORMATION:

A. Background

    This proposed rule contains a new DFARS Subpart 204.73, Export-
Controlled Information and Technology at Contractor, University, and 
Federally Funded Research and Development Center Facilities, and an 
associated contract clause. The proposed subpart provides general 
information on export control laws and regulations and requires 
contracting officers to ensure that contracts identify any export-
controlled information and technology. The proposed clause is 
prescribed for use in solicitations and contracts for research and 
development or for services or supplies that may involve the use or 
generation of export-controlled information or technology. The clause 
requires the contractor to--
     Comply with all applicable laws and regulations regarding 
export-controlled information and technology;
     Maintain an effective export compliance program;
     Conduct initial and periodic training on export compliance 
controls; and
     Perform periodic assessments.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    The proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because all 
contractors, including small entities, are already subject to export-
control laws and regulations. The requirements in this proposed rule 
are clarifications of existing responsibilities. Therefore, DoD has not 
performed an initial regulatory flexibility analysis. DoD invites 
comments from small businesses and other interested parties. DoD also 
will consider comments from small entities concerning the affected 
DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be 
submitted separately and should cite DFARS Case 2004-D010.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Parts 204, 235, and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

    Therefore, DoD proposes to amend 48 CFR parts 204, 235, and 252 as 
follows:
    1. The authority citation for 48 CFR parts 204, 235, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 204--ADMINISTRATIVE MATTERS

    2. Subpart 204.73 is added to read as follows:

Subpart 204.73--Export-Controlled Information and Technology at 
Contractor, University, and Federally Funded Research and 
Development Center Facilities

Sec.
204.7301 Definition.
204.7302 General.
204.7303 Policy.
204.7304 Contract clause.


204.7301  Definition.

    Export-controlled information and technology, as used in this 
subpart, is defined in the clause at 252.204-70XX.


204.7302  General.

    Export control laws and regulations restrict the transfer, by any 
means, of certain types of information and technology. Any access to 
export-controlled information or technology by a foreign national or a 
foreign person anywhere in the world, including the United States, is 
considered an export to the home country of the foreign national or 
foreign person. For additional information relating to restrictions on 
export-controlled information and technology, see PGI 204.7302.


204.7303  Policy.

    The contracting officer shall ensure that contracts identify any 
export-controlled information and technology, as determined by the 
requiring activity.


204.7304  Contract clause.

    Use the clause at 252.204-70XX, Requirements Regarding Access to 
Export-Controlled Information and Technology, in solicitations and 
contracts for--
    (a) Research and development; or
    (b) Services or supplies that may involve the use or generation of 
export-controlled information or technology.

PART 235--RESEARCH AND DEVELOPMENT CONTRACTING


235.071  [Redesignated]

    3. Section 235.071 is redesignated as section 235.072.
    4. A new section 235.071 is added to read as follows:


235.071  Export-controlled information and technology at contractor, 
university, and Federally Funded Research and Development Center 
facilities.

    For requirements relating to restrictions on export-controlled 
information and technology, see Subpart 204.73.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    5. Section 252.204-70XX is added to read as follows:


252.204-70XX  Requirements Regarding Access to Export-Controlled 
Information and Technology.

    As prescribed in 204.7304, use the following clause:

Requirements Regarding Access to Export-Controlled Information and 
Technology (XXX 2005)

    (a) Definition. Export-controlled information and technology, as 
used in this clause, means information and technology that may only 
be released to foreign nationals or foreign persons in accordance 
with the Export Administration Regulations (15 CFR parts 730-774) 
and the International Traffic in Arms Regulations (22 CFR parts 120-
130), respectively.
    (b) In performing this contract, the Contractor may gain access 
to export-controlled information or technology.
    (c) The Contractor shall comply with all applicable laws and 
regulations regarding export-controlled information and technology, 
including registration in accordance with the International Traffic 
in Arms Regulations.
    (d) The Contractor shall maintain an effective export compliance 
program. The program must include adequate controls over physical, 
visual, and electronic access to export-controlled information and 
technology to ensure that access by foreign firms and individuals is 
restricted as required by applicable Federal laws, Executive orders, 
and regulations.
    (1) The access control plan shall include unique badging 
requirements for foreign nationals and foreign persons and 
segregated work areas for export-controlled information and 
technology.
    (2) The Contractor shall not allow access by foreign nationals 
or foreign persons to export-controlled information and technology 
without obtaining an export license, other authorization, or 
exemption.
    (e) The Contractor shall--
    (1) Conduct initial and periodic training on export compliance 
controls for those employees who have access to export-controlled 
information and technology; and

[[Page 39978]]

    (2) Perform periodic assessments to ensure full compliance with 
Federal export laws and regulations.
    (f) Nothing in the terms of this contract is intended to change, 
supersede, or waive any of the requirements of applicable Federal 
laws, Executive orders, and regulations, including but not limited 
to--
    (1) The Export Administration Act of 1979 (50 U.S.C. App. 2401 
as extended by Executive Order 13222);
    (2) The Arms Export Control Act of 1976 (22 U.S.C. 2751);
    (3) The Export Administration Regulations (15 CFR parts 730-
774);
    (4) The International Traffic in Arms Regulations (22 CFR parts 
120-130);
    (5) DoD Directive 2040.2, International Transfers of Technology, 
Goods, Services, and Munitions; and
    (6) DoD Industrial Security Regulation (DoD 5220.22-R).
    (g) The Contractor shall include the substance of this clause, 
including this paragraph (g), in all subcontracts for--
    (1) Research and development; or
    (2) Services or supplies that may involve the use or generation 
of export-controlled information or technology.

(End of clause)

252.235-7002, 252.235-7003, 252.235-7010, and 252.235-7011  [Amended]

    6. Sections 252.235-7002, 252.235-7003, 252.235-7010, and 252.235-
7011 are amended in the introductory text by removing ``235.071'' and 
adding in its place ``235.072''.

[FR Doc. 05-13305 Filed 7-11-05; 8:45 am]

BILLING CODE 5001-08-P