Release, Handling, and Protection of Restricted Information, 9860-9864 [2010-4408]
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9860
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Proposed Rules
the substitution of channel 25 for
channel 21 at Beaumont.
DATES: Comments must be filed on or
before March 19, 2010, and reply
comments on or before March 29, 2010.
ADDRESSES: Federal Communications
Commission, Office of the Secretary,
445 12th Street, SW., Washington, DC
20554. In addition to filing comments
with the FCC, interested parties should
serve counsel for petitioner as follows:
John P. Janka, Esq., Latham & Watkins
LLP, 555 Eleventh Street, NW.,
Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT:
Adrienne Y. Denysyk,
adrienne.denysyk@fcc.gov, Media
Bureau, (202) 418–1600.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Notice of
Proposed Rule Making, MB Docket No.
10–49, adopted February 23, 2010, and
released February 24, 2010. The full text
of this document is available for public
inspection and copying during normal
business hours in the FCC’s Reference
Information Center at Portals II, CY–
A257, 445 12th Street, SW.,
Washington, DC 20554. This document
will also be available via ECFS (https://
www.fcc.gov/cgb/ecfs). (Documents will
be available electronically in ASCII,
Word 97, and/or Adobe Acrobat.) This
document may be purchased from the
Commission’s duplicating contractor,
Best Copy and Printing, Inc., 445 12th
Street, SW., Room CY–B402,
Washington, DC 20554, telephone 1–
800–478–3160 or via e-mail https://
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document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an e-mail
to fcc504@fcc.gov or call the
Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY). This document does not contain
proposed information collection
requirements subject to the Paperwork
Reduction Act of 1995, Public Law 104–
13. In addition, therefore, it does not
contain any proposed information
collection burden ‘‘for small business
concerns with fewer than 25
employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
Provisions of the Regulatory
Flexibility Act of 1980 do not apply to
this proceeding. Members of the public
should note that from the time a Notice
of Proposed Rule Making is issued until
the matter is no longer subject to
Commission consideration or court
review, all ex parte contacts (other than
ex parte presentations exempt under 47
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CFR 1.1204(a)) are prohibited in
Commission proceedings, such as this
one, which involve channel allotments.
See 47 CFR 1.1208 for rules governing
restricted proceedings.
For information regarding proper
filing procedures for comments, see 47
CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Television, Television broadcasting.
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
part 73 as follows:
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336.
§ 73.622
[Amended]
2. Section 73.622(i), the PostTransition Table of DTV Allotments
under Texas, is amended by adding
channel 25 and removing channel 21 at
Beaumont.
Federal Communications Commission.
Clay C. Pendarvis,
Associate Chief, Video Division, Media
Bureau.
[FR Doc. 2010–4566 Filed 3–3–10; 8:45 am]
BILLING CODE 6712–01–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1809, 1827, 1837, and
1852
RIN 4700–AD43
Release, Handling, and Protection of
Restricted Information
AGENCY: National Aeronautics and
Space Administration.
ACTION: Proposed rule.
This proposed rule amends
the NASA Federal Acquisition
Regulation (FAR) Supplement (NFS) to
clarify the policy and procedures
regarding the release of contractors’
restricted information and the handling
and protection of restricted information
by contractors. This document proposes
to change the term ‘‘sensitive
information’’ to ‘‘restricted information;’’
clarify what data constitutes restricted
information; and revise and move the
coverage relative to providing
contractors access to restricted
information and release of contractors’
restricted information to another part.
These changes are required to clarify the
applicability of clauses addressing
SUMMARY:
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contractor handling and protection of
restricted information and to clarify
what data constitutes restricted
information. Additionally, these
changes will provide for consistent
application of clauses and
understanding of what constitutes
restricted information. This proposed
rule would also update NASA’s waiver
of the requirements of FAR 9.505–4 to
reflect the policy and procedures
regarding the release of contractors’
restricted information and the handling
and protection of restricted information
by contractors. This proposed
rulemaking would monitor and work to
align with recent administration efforts
to review the controlled unclassified
information (CUI) framework to the
extent that it impacts information
designation, protection, release, and
handling procedures addressed in this
proposed rule.
DATES: Comments should be submitted
on or before May 3, 2010 to be
considered in formulation of the final
rule.
ADDRESSES: Interested parties may
submit comments, identified by RIN
number 2700–AD43, via the Federal
eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Comments may also be submitted to
Leigh Pomponio, NASA Headquarters,
Office of Procurement, Contract
Management Division, Washington, DC
20546. Comments may also be
submitted by e-mail to
leigh.pomponio@nasa.gov.
FOR FURTHER INFORMATION CONTACT:
Leigh Pomponio, Office of Procurement,
Contract Management Division, (202)
358–0592, e-mail:
leigh.pomponio.@nasa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Currently the NFS addresses the
release of contractors’ sensitive
information and access to sensitive
information in NFS Part 1837, Service
Contracting and NFS Subpart 1837.2,
Advisory and Assistance Services, uses
the term ‘‘sensitive information’’ to
describe data that may be subject to
certain restrictions or subject to special
handling procedures and protection
from inappropriate disclosure. This rule
changes the term ‘‘sensitive information’’
to ‘‘restricted information’’ as well as
amends and moves from NFS Subpart
1837.2 to NFS Subpart 1827.4, Rights in
Data and Copyrights, NASA’s policy on
release and protection and handling of
such information. This action serves to
clarify the nature of the information and
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better reflect NASA’s existing policy
and application of the clauses to more
than service contracts. NASA’s waiver
of the requirements of FAR 9.505–4 is
updated in this rule to reflect the
changes made in 1827.405. This rule
also removes clauses 1852.237–72,
Access to Sensitive Information, and
1852.237–73, Release of Sensitive
Information, and adds clauses
1852.227–73, Handling and Protection
of Restricted Information, and
1852.227–74, Release of Restricted
Information, respectively, in their place.
To better reflect the nature of the
information, the new NFS section,
1827.405–70, more specifically
identifies ‘‘restricted information’’ as
recorded information, regardless of form
or the media on which it may be
recorded, the use and dissemination of
which is restricted, and includes: (1)
Limited rights data, (2) restricted
computer software, (3) information
incidental to contract administration,
such as financial, administrative, cost or
pricing, or management information that
embody trade secrets or are commercial
or financial and confidential or
privileged, and (4) information
designated by NASA as Sensitive But
Unclassified (SBU). This change does
not expand the universe of ‘‘data’’ that
clauses 1852.237–72 and 1852.237–73
address. The original definition for
‘‘sensitive information’’ contained in
1837.203–70 covered information that a
contractor has developed at private
expense, or that the Government has
generated that qualifies for exception to
the Freedom of Information Act, which
is not currently in the public domain,
and which may embody trade secrets or
commercial or financial information,
and which may be sensitive or
privileged. Commercial or financial
information which may be sensitive or
privileged is specifically covered in
both the original and new clauses. The
only other ‘‘trade secret’’ information
provided by contractors under existing
FAR and NFS clauses is Limited Rights
Data and Restricted Computer Software
that may be delivered under Alt II and
III of FAR clause 52.227–14, Rights in
Data-General. These are now
specifically listed. Information that the
Government has generated that qualifies
for an exception to the Freedom of
Information Act is now referred to as
information designated by NASA as
SBU.
The new NFS section 1827.405–70(b)
clarifies applicability by removing
reference to the term ‘‘service provider.’’
If, in performance of NASA contracts,
contractors and their subcontractors
may require access to restricted
information in the Government’s
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possession, which may be entitled to
protection from unauthorized use or
disclosure, then the clause at 1852.227–
73, Handling and Protection of
Restricted Information, shall be
included in the contract. NFS Clause
1852.227–73 provides restrictions on
use and disclosure of restricted
information provided by the
Government to the contractor if the
information is suitably marked with a
legend indicating that its use and
disclosure is restricted or the
information is specifically identified in
the contract or in writing by the
Contracting Officer as being subject to
the clause. Further, this rule clarifies
that contractor access to restricted
information that comprises third party
limited rights data or restricted
computer software will be provided to
contractors only as authorized by the
clause at 52.227–14, Rights in Data—
General, Alternates II and III.
NASA’s waiver of the requirements of
FAR 9.505–4 is updated in this rule to
reflect the changes made in 1827.405 as
it relates to the acquisition of services to
support mission activities and
management and administrative
functions.
This proposed rule removes clause
1852.237–72, Access to Sensitive
Information, and adds a new clause
1852.227–73, Handling and Protection
of Restricted Information, in its place.
This new clause addresses contractor
responsibilities when performance of its
contract requires access to restricted
information; defines ‘‘restricted
information;’’ provides restrictions on
use and disclosure of restricted
information provided by the
Government; identifies exceptions;
establishes that this clause is
subordinate to all other contract clauses
or requirements that specifically address
the access, use, handling, protection or
disclosure of information; identifies
remedies for breach of any conditions of
the clause; and requires flow-down of
the clause requirements to all
subcontractors. The effect of this clause
is to create a non-disclosure agreement
within the contract, eliminating the
need for separate non-disclosure
agreements between contractors. Since
the clause at 1852.227–73, Handling and
Protection of Restricted Information,
functions as a contractual nondisclosure agreement, the clause may
also be used, in conjunction with other
appropriate measures, as part of a plan
to mitigate organizational conflicts of
interest resulting from unfair access to
restricted information. This clause alone
does not create an adequate firewall to
mitigate OCIs resulting from unfair
access to data.
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This proposed rule also removes
clause 1852.237–73, Release of Sensitive
Information, and adds a new clause
1852.227–74, Release of Restricted
Information, in its place. Consistent
with 1852.227–73, this clause includes
the same definition of ‘‘restricted
information.’’ Through this clause
offerors and contractors agree that
NASA may release their restricted
information to other contractors in
accordance with the procedures
prescribed in 1827.405–70 and subject
to the safeguards and protections
delineated in the clause at 1852.227–73,
Handling and Protection of Restricted
Information. The clause at 1852.227–74
requires offerors and contractors to
identify information they claim to be
restricted information provided to the
Government in the course of submitting
proposals for a contract and performing
a contract by suitably marking such
restricted information with a legend
indicating that use and disclosure of the
information is restricted.
B. Regulatory Flexibility Act
This 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 the proposed rule only clarifies
existing NFS requirements.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub.
L. 96–511) does not apply because the
changes to the NFS do not impose
information collection requirements that
require the approval of OMB under 44
U.S.C. 3501, et seq.
William P. McNally,
Assistant Administrator for Procurement.
This proposed rule was subject to
Office of Management and Budget
review under Executive Order 12866,
dated September 30, 1993.
Accordingly, 48 CFR parts 1809, 1827,
1837, and 1852 are proposed to be
amended as follows:
1. The authority citation for 48 CFR
parts 1809, 1827, 1837, and 1852
continues to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1809—CONTRACTOR
QUALIFICATIONS
2. Revise section 1809.505–4 to read
as follows:
1809.505–4 Obtaining access to restricted
information.
(b) In accordance with FAR 9.503, the
Assistant Administrator for
Procurement has determined that it
would not be in the Government’s
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interests for NASA to comply strictly
with FAR 9.505–4(b) when acquiring
services to support mission activities
and management and administrative
functions. The Assistant Administrator
for Procurement has, therefore, waived
the requirement that before gaining
access to other companies’ restricted
information (see 1827.405–70)
contractors must enter specific
agreements with each of those other
companies to protect their information
from unauthorized use or disclosure.
Accordingly, NASA will not require
contractors and subcontractors and their
employees in procurements that support
NASA mission activities and
management and administrative
functions to enter into separate,
interrelated third party agreements to
protect restricted information from
unauthorized use or disclosure. As an
alternative to numerous, separate third
party agreements, 1827.405–70
prescribes detailed policy and
procedures to protect contractors from
unauthorized use or disclosure of their
restricted information. Nothing in this
section waives the requirements of FAR
37.204 and 1837.204.
PART 1827—PATENTS, DATA, AND
COPYRIGHTS
3. Add sections 1827.405–70,
1827.405–71, and 1827.405–72 to read
as follows:
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1827.405–70 Providing contractors access
to restricted information.
(a)(1) As used in this subpart,
‘‘restricted information’’ means recorded
information, regardless of form or the
media on which it may be recorded, the
use and dissemination of which is
restricted, and includes:
(i) Limited rights data;
(ii) Restricted computer software;
(iii) Information incidental to contract
administration, such as financial,
administrative, cost or pricing, or
management information that embody
trade secrets or are commercial or
financial and confidential or privileged;
and
(iv) Information designated by NASA
as Sensitive But Unclassified (SBU).
(2) As used in this subpart, ‘‘requiring
organization’’ refers to the NASA
organizational element or activity that
requires specified services or products
to be provided under a contract.
(b)(1) In performance of NASA
contracts, contractors, and their
subcontractors, may require access to
restricted information in the
Government’s possession, which may be
entitled to protection from unauthorized
use or disclosure. The clause at
1852.227–73, Handling and Protection
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of Restricted Information, will be used
in contracts to ensure that restricted
information is properly protected from
unauthorized use or disclosure.
(2) Since the clause at 1852.227–73,
Handling and Protection of Restricted
Information, functions as a contractual
non-disclosure agreement, the clause
may also be used, as deemed
appropriate and in conjunction with
other appropriate measures as
necessary, to mitigate organizational
conflicts of interest resulting from
unequal access to restricted information.
(3) After contract award, the requiring
organization shall review any
contractor’s requests for access to
restricted information to determine
whether the access is necessary to
performance of the contract and
whether the information requested is
considered ‘‘restricted’’ as defined in
paragraph (a)(1) of this section, and
shall notify the Contracting Officer of
such determination. If it is determined
that performance will necessitate access
to restricted information and the clause
at 1852.227–73 is in the contract, the
restricted information may be provided
to the contractor. If the clause at
1852.227–73 was not initially included
in the contract, the contracting officer
shall add the clause before restricted
information is provided to the
contractor.
(4) Access to restricted information
that comprises third party limited rights
data or restricted computer software
will be provided to contractors only as
authorized by the clause at 52.227–14,
Rights in Data—General, Alternates II
and III (see also FAR 27.402(c) and (d),
27.409(b)(3) and (b)(4), and 1827.409(c)
and (d) for authorization to revise
Limited Rights and Restricted Rights
notices to provide the Government
greater rights in limited rights data and
restricted computer software). All other
restricted information will be provided
to contractors in compliance with the
clause at 1852.227–74, Release of
Restricted Information. All restricted
information provided to a contractor
will be handled by the contractor in
compliance with 1852.227–73, Handling
and Protection of Restricted
Information.
(5)(i) The clause at 1852.227–73
provides restrictions on use and
disclosure of restricted information
provided by the Government to the
contractor if the information is suitably
marked with a legend indicating that its
use and disclosure is restricted or the
information is specifically identified in
the contract or in writing by the
Contracting Officer as being subject to
the clause. This includes information
incidental to contract administration,
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such as financial, administrative, cost or
pricing, or management information that
embodies trade secrets or are
commercial or financial and
confidential or privileged, as well as
information designated by NASA as
Sensitive But Unclassified (SBU).
(ii) Additionally, paragraph (d)(1) of
the clause at 52.227–14, Rights in
Data—General, permits the Government
to restrict a contractor’s right to use,
release to others, reproduce, distribute,
or publish any data first produced or
specifically used by the contractor in
the performance of a contract provided
such restriction is expressly set forth in
the contract. Pursuant to this authority,
the clause at 1852.227–73 provides
restrictions on use and disclosure of
third party limited rights data and
restricted computer software that may
be provided by the Government to its
contactors.
(c) When a contractor is given access
to restricted information in performance
of a contract and such restricted
information is either marked with a
restrictive legend indicating that use
and disclosure of the information is
restricted or is specifically identified in
the contract or in writing by the
Contracting Officer as being subject to
restrictions, the contractor, and its
subcontractors given access to such
restricted information, shall follow the
steps outlined in the clause at
1852.227–73, Handling and Protection
of Restricted Information, to protect the
restricted information from
unauthorized use or disclosure.
(d) If the contractor will be operating
an information technology system for
NASA that contains restricted
information, the operating contract shall
include the clause at 1852.204–76,
Security Requirements for Unclassified
Information Technology Resources,
which requires the implementation of
an Information Technology Security
Plan to protect information processed,
stored, or transmitted from
unauthorized access, alteration,
disclosure, or use.
(e) The contracting officer may require
the contractor to demonstrate how it is
complying with the clause at 1852.227–
73, Handling and Protection of
Restricted Information, to protect from
unauthorized use or disclosure any
restricted information provided under
the contract that is either marked with
a restrictive legend indicating that use
and disclosure of the information is
restricted or is specifically identified in
the contract or in writing by the
Contracting Officer as being subject to
restrictions.
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1827.405–71 Release of contractors’
restricted information.
Pursuant to the clause at 1852.227–74,
Release of Restricted Information,
offerors and contractors agree that
NASA may release their restricted
information to other contractors in
accordance with the procedures
prescribed in 1827.405–70 and subject
to the safeguards and protections
delineated in the clause at 1852.227–73,
Handling and Protection of Restricted
Information. As required by the clause
at 1852.227–74, contractors must
identify information they claim to be
restricted information submitted in the
course of performing a contract by
suitably marking such restricted
information with a legend indicating
that use and disclosure of the
information is restricted. The
contracting officer shall evaluate all
contractor claims regarding such
restricted information in deciding how
NASA should respond to requests from
requiring organizations and contractors
for access to restricted information.
1827.405–72
NASA contract clauses.
(a) The contracting officer shall insert
the clause at 1852.227–73, Handling and
Protection of Restricted Information, in
all solicitations, contracts, and basic
ordering agreements, unless the
contracting officer determines that
contract performance will not require
access to restricted information.
(b) The contracting officer shall insert
the clause at 1852.227–74, Release of
Restricted Information, in all
solicitations, contracts, and basic
ordering agreements.
PART 1837—SERVICE CONTRACTING
1837.203–70, 1837.203–71, and 1837.203–72
[Removed]
4. Remove sections 1837.203–70,
1837.203–71, and 1837.203–72.
PART 1852—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
5. Add sections 1852.227–73 and
1852.227–74 to read as follows:
1852.227–73 Handling and Protection of
Restricted Information.
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As prescribed in 1827.405–72(a),
insert the following clause:
HANDLING AND PROTECTION OF
RESTRICTED INFORMATION
(XX/XX)
(a) Definition. ‘‘Restricted information,’’ as
used in this clause, means recorded
information, regardless of form or the media
on which it may be recorded, the use and
dissemination of which is restricted, and
includes:
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(1) Limited rights data;
(2) Restricted computer software;
(3) Information incidental to contract
administration, such as financial,
administrative, cost or pricing, or
management information that embody trade
secrets or are commercial or financial and
confidential or privileged; and
(4) Information designated by NASA as
Sensitive But Unclassified (SBU).
(b) Restrictions on use and disclosure of
restricted information. With regard to any
restricted information to which the
Contractor is given access in performance of
this contract that is either marked with a
restrictive legend indicating that use and
disclosure of the information is restricted or
is specifically identified in this contract or in
writing by the Contracting Officer as being
subject to this clause, the Contractor agrees
to:
(1) Use such restricted information only for
the purposes of performing the services
specified in this contract, and not
appropriate the restricted information to its
own or another’s use;
(2) Safeguard the restricted information
from unauthorized use and disclosure;
(3) Allow access to the restricted
information only to those employees and
subcontractors that need it to perform
services under this contract;
(4) Preclude access and disclosure of the
restricted information to persons and entities
outside of the Contractor’s or its
subcontractor’s organization(s);
(5) Inform employees who may require
access to the restricted information about
obligations to use it only to perform the
services specified in this contract and to
safeguard it from unauthorized use and
disclosure;
(6) Require that each employee that has
access to restricted information complies
with the obligations regarding restricted
information included in this clause; and
(7) Return or dispose of the restricted
information, as NASA may direct, when the
restricted information is no longer needed for
performance of work under this contract.
(c) Exceptions.
(1) The obligations and prohibitions of
paragraph (b) do not apply to restricted
information which the Contractor can
demonstrate to the Contracting Officer—
(i) Was publicly available at the time of
receipt by the Contractor or thereafter
becomes publicly available without breach of
this contract;
(ii) Was known to, in the possession of, or
developed by or for the Contractor
independently of the restricted information
received from the Government and such
knowledge, possession, or independent
development can be shown;
(iii) Was received by the Contractor from
a party other than the owner of the restricted
information, who has the authority to release
the restricted information and did not require
the Contractor to hold it in confidence; or
(iv) Is released to or becomes available to
a third party on an unrestricted basis from
the owner of the restricted information,
someone acting under the owner’s control, or
with the prior written approval of the owner.
(2) Under a valid order of a court or
Government agency, the Contractor may
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release restricted information to which the
Contractor is given access in performance of
this contract, provided that the Contractor
provides prior written notice to the owner of
the restricted information of such obligation
and the opportunity to oppose such
disclosure. The Contractor shall provide a
copy of the notice to the Contracting Officer.
(d) In the event that restricted information
provided to the Contractor includes a
restrictive legend that the Contractor deems
to be ambiguous or unauthorized, the
Contractor must notify the Contracting
Officer of such condition. Notwithstanding
such a notification, as long as the restrictive
legend provides an indication that a
restriction on use or disclosure was intended,
the Contractor will treat the restricted
information pursuant to the requirements of
this clause unless otherwise directed in
writing by the Contracting Officer or the
owner of the restricted information.
(e) Other contractual restrictions on
restricted information. This clause is
subordinate to all other contract clauses or
requirements that specifically address the
access, use, handling, protection or
disclosure of information. If any restrictions
or authorizations in this clause are
inconsistent with a requirement of any other
clause of this contract, the requirement of the
other clause shall take precedence over the
requirement of this clause. Third party
limited rights data and restricted computer
software will be provided under this contract
only as authorized by the clause at 52.227–
14, Rights in Data—General, Alternates II and
III (as modified by 1852.227–14, if
applicable). If the Contractor believes there is
a conflict between this clause and another
clause in this contract regarding the access,
use, handling, protection or disclosure of
restricted information, the Contractor must
consult with the Contracting Officer before
taking subsequent actions under the other
clause.
(f) The Contracting Officer may require the
Contractor to demonstrate how it is
complying with this Handling and Protection
of Restricted Information clause.
(g) Remedies. Recognizing that this
contract establishes a high standard of
accountability and trust, the Contractor’s
breach of any of the conditions of this clause
may provide grounds for the Government
to—
(1) Disqualify the Contractor from
subsequent related contractual efforts;
(2) Debar the Contractor for serious
misconduct affecting present responsibility;
(3) Terminate the Contractor for default; or
(4) Pursue such other remedies as may be
permitted by law, regulation, or this contract.
(h) Subcontracts. The Contractor shall
insert, or require the insertion of, this clause,
including this paragraph (h), suitably
modified to reflect the relationship of the
parties, in all subcontracts (regardless of tier).
(End of clause)
1852.227–74
information.
Release of restricted
As prescribed in 1827.405–72(b),
insert the following clause:
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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Proposed Rules
RELEASE OF RESTRICTED INFORMATION
(XX/XX)
(a) Definition. ‘‘Restricted information,’’ as
used in this clause, means recorded
information, regardless of form or the media
on which it may be recorded, the use and
dissemination of which is restricted, and
includes:
(1) Limited rights data;
(2) Restricted computer software;
(3) Information incidental to contract
administration, such as financial,
administrative, cost or pricing, or
management information that embody trade
secrets or are commercial or financial and
confidential or privileged; and
(4) Information designated by NASA as
Sensitive But Unclassified (SBU).
(b) In performance of NASA contracts,
contractors, as well as their subcontractors
and their individual employees, may require
access to restricted information in the
Government’s possession. The Contractor
agrees that, where needed for the
performance of a NASA contract, NASA may
release to its contractors, and their
subcontractors, restricted information
delivered during the course of this contract.
Additionally, offerors agree that restricted
information submitted with their proposals
may be provided to NASA service contractors
that assist NASA with contract closeout. If
suitably marked with a legend indicating that
use and disclosure of restricted information
is restricted, such restricted information will
be subject to the enumerated protections
mandated by this clause and the clause at
1852.227–73, Handling and Protection of
Restricted Information. The Contractor’s
limited rights data and restricted computer
software will be provided to other NASA
contractors or subcontractors only as
authorized by the clause at 52.227–14, Rights
in Data—General, Alternates II and III (as
modified by 1852–227–14, if applicable).
(c) For purposes of marking such restricted
information, the Contractor may, in addition
to any other notice or legend otherwise
required (e.g., notices required under the
clause at 52.227–14, Rights in Data—General,
Alternates II and III), use a notice similar to
the following:
Mark the title page with the following
legend:
This document was submitted by [insert
submitter’s name] in performance Contract
No. [insert contract no.]. Submitter asserts
that this document contains restricted
information that embodies trade secrets or is
commercial or financial and privileged or
confidential. Such information shall not be
disclosed outside of NASA except in
accordance with the clause at NFS 1852.227–
73, Handling and Protection of Restricted
Information. This restriction does not limit
the Government’s right to use this restricted
information if it is obtained from another
source without restriction. The restricted
information subject to this notice is
contained in pages [insert page numbers or
other identification of pages].
Mark each page containing restricted
information the Contractor wishes to restrict
with the following legend:
This page contains restricted information
and is subject to the restriction on the title
page of this document.
VerDate Nov<24>2008
16:36 Mar 03, 2010
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(d) The Contracting Officer shall evaluate
restricted information marked in accordance
with paragraph (c) of this clause. Unless the
Contracting Officer decides, with the advice
of Center legal counsel, that reasonable
grounds exist to challenge the markings,
NASA and its contractors and subcontractors,
shall comply with all of the safeguards
contained in paragraph (e) of this clause and
the clause at 1852.227–73, Handling and
Protection of Restricted Information.
(e) To receive access to restricted
information needed to assist NASA in
accomplishing NASA mission activities and
management and administrative functions,
the Contractor or subcontractor must be
operating under a contract that contains the
clause at 1852.227–73, Handling and
Protection of Restricted Information, which
obligates the Contractor or subcontractor,
with respect to restricted information marked
with a legend indicating that use and
disclosure of the information is restricted, to
do the following:
(1) Use such restricted information only for
the purpose of performing the services
specified in its contract, and not appropriate
the restricted information to its own or
another’s use;
(2) Safeguard such restricted information
from unauthorized use and disclosure;
(3) Allow access to such restricted
information only to those employees and
subcontractors that need it to perform
services under the contract;
(4) Preclude access and disclosure of such
restricted information to persons and entities
outside of the contractor’s or its
subcontractor’s organization(s);
(5) Inform employees who may require
access to such restricted information about
obligations to use it only to perform the
services specified in its contract and to
safeguard it from unauthorized use and
disclosure;
(6) Require that each employee that has
access to restricted information complies
with the obligations regarding restricted
information included in this clause; and
(7) Return or dispose of such restricted
information, as NASA may direct, when the
restricted information is no longer needed for
performance of work under the contract.
(f) Exceptions. The obligations and
prohibitions of paragraph (e) of this clause do
not apply to restricted information which the
receiving contractor can demonstrate to the
Contracting Officer—
(1) Was publicly available at the time of
receipt by the receiving contractor or
thereafter becomes publicly available without
breach of the receiving contractor’s contract;
(2) Was known to, in the possession of, or
developed by or for the receiving contractor
independently of the restricted information
received from the Government and such
knowledge, possession, or independent
development can be shown;
(3) Was received by the receiving
contractor from a party other than the owner
of the restricted information, who has the
authority to release the restricted information
and did not require the receiving contractor
to hold it in confidence;
(4) Is released to or becomes available to
a third party on an unrestricted basis from
PO 00000
Frm 00056
Fmt 4702
Sfmt 4702
the owner of the restricted information,
someone acting under the owner’s control, or
with the prior written approval of the owner;
or
(5) Is required to be released under a valid
order of a court or Government agency,
provided that the Contractor provides prior
written notice to the owner of the restricted
information of such obligation and the
opportunity to oppose such disclosure.
(g) When a contractor will have primary
responsibility for operating an information
technology system for NASA that contains
restricted information, the contractor’s
contract shall also include the clause at
1852.204–76, Security Requirements for
Unclassified Information Technology
Resources. The Security Requirements clause
requires the contractor to implement an
Information Technology Security Plan to
protect information processed, stored, or
transmitted from unauthorized access,
alteration, disclosure, or use. Contractor
personnel requiring privileged access or
limited privileged access to these information
technology systems are subject to screening
using the standard National Agency Check
(NAC) forms appropriate to the level of risk
for adverse impact to NASA missions. The
Contracting Officer may allow the Contractor
to conduct its own screening, provided the
contractor employs substantially equivalent
screening procedures.
(h) This clause does not affect NASA’s
responsibilities under the Freedom of
Information Act.
(i) Subcontracts. The Contractor shall
insert, or require the insertion of, this clause,
including this paragraph (i), suitably
modified to reflect the relationship of the
parties, in all subcontracts (regardless of tier).
(End of clause)
1852.237–72 and 1852.237–73
[Removed]
6. Remove sections 1852.237–72 and
1852.237–73.
[FR Doc. 2010–4408 Filed 3–3–10; 8:45 am]
BILLING CODE 7510–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
RIN 0648–AY32
Fisheries of the Caribbean, Gulf of
Mexico and South Atlantic;
Comprehensive Ecosystem-Based
Amendment 1
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability (NOA);
request for comments.
SUMMARY: The South Atlantic Fishery
Management Council (Council) has
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]]>Agencies
[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Proposed Rules]
[Pages 9860-9864]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4408]
=======================================================================
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1809, 1827, 1837, and 1852
RIN 4700-AD43
Release, Handling, and Protection of Restricted Information
AGENCY: National Aeronautics and Space Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule amends the NASA Federal Acquisition
Regulation (FAR) Supplement (NFS) to clarify the policy and procedures
regarding the release of contractors' restricted information and the
handling and protection of restricted information by contractors. This
document proposes to change the term ``sensitive information'' to
``restricted information;'' clarify what data constitutes restricted
information; and revise and move the coverage relative to providing
contractors access to restricted information and release of
contractors' restricted information to another part. These changes are
required to clarify the applicability of clauses addressing contractor
handling and protection of restricted information and to clarify what
data constitutes restricted information. Additionally, these changes
will provide for consistent application of clauses and understanding of
what constitutes restricted information. This proposed rule would also
update NASA's waiver of the requirements of FAR 9.505-4 to reflect the
policy and procedures regarding the release of contractors' restricted
information and the handling and protection of restricted information
by contractors. This proposed rulemaking would monitor and work to
align with recent administration efforts to review the controlled
unclassified information (CUI) framework to the extent that it impacts
information designation, protection, release, and handling procedures
addressed in this proposed rule.
DATES: Comments should be submitted on or before May 3, 2010 to be
considered in formulation of the final rule.
ADDRESSES: Interested parties may submit comments, identified by RIN
number 2700-AD43, via the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.
Comments may also be submitted to Leigh Pomponio, NASA Headquarters,
Office of Procurement, Contract Management Division, Washington, DC
20546. Comments may also be submitted by e-mail to
leigh.pomponio@nasa.gov.
FOR FURTHER INFORMATION CONTACT: Leigh Pomponio, Office of Procurement,
Contract Management Division, (202) 358-0592, e-mail:
leigh.pomponio.@nasa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Currently the NFS addresses the release of contractors' sensitive
information and access to sensitive information in NFS Part 1837,
Service Contracting and NFS Subpart 1837.2, Advisory and Assistance
Services, uses the term ``sensitive information'' to describe data that
may be subject to certain restrictions or subject to special handling
procedures and protection from inappropriate disclosure. This rule
changes the term ``sensitive information'' to ``restricted
information'' as well as amends and moves from NFS Subpart 1837.2 to
NFS Subpart 1827.4, Rights in Data and Copyrights, NASA's policy on
release and protection and handling of such information. This action
serves to clarify the nature of the information and
[[Page 9861]]
better reflect NASA's existing policy and application of the clauses to
more than service contracts. NASA's waiver of the requirements of FAR
9.505-4 is updated in this rule to reflect the changes made in
1827.405. This rule also removes clauses 1852.237-72, Access to
Sensitive Information, and 1852.237-73, Release of Sensitive
Information, and adds clauses 1852.227-73, Handling and Protection of
Restricted Information, and 1852.227-74, Release of Restricted
Information, respectively, in their place.
To better reflect the nature of the information, the new NFS
section, 1827.405-70, more specifically identifies ``restricted
information'' as recorded information, regardless of form or the media
on which it may be recorded, the use and dissemination of which is
restricted, and includes: (1) Limited rights data, (2) restricted
computer software, (3) information incidental to contract
administration, such as financial, administrative, cost or pricing, or
management information that embody trade secrets or are commercial or
financial and confidential or privileged, and (4) information
designated by NASA as Sensitive But Unclassified (SBU). This change
does not expand the universe of ``data'' that clauses 1852.237-72 and
1852.237-73 address. The original definition for ``sensitive
information'' contained in 1837.203-70 covered information that a
contractor has developed at private expense, or that the Government has
generated that qualifies for exception to the Freedom of Information
Act, which is not currently in the public domain, and which may embody
trade secrets or commercial or financial information, and which may be
sensitive or privileged. Commercial or financial information which may
be sensitive or privileged is specifically covered in both the original
and new clauses. The only other ``trade secret'' information provided
by contractors under existing FAR and NFS clauses is Limited Rights
Data and Restricted Computer Software that may be delivered under Alt
II and III of FAR clause 52.227-14, Rights in Data-General. These are
now specifically listed. Information that the Government has generated
that qualifies for an exception to the Freedom of Information Act is
now referred to as information designated by NASA as SBU.
The new NFS section 1827.405-70(b) clarifies applicability by
removing reference to the term ``service provider.'' If, in performance
of NASA contracts, contractors and their subcontractors may require
access to restricted information in the Government's possession, which
may be entitled to protection from unauthorized use or disclosure, then
the clause at 1852.227-73, Handling and Protection of Restricted
Information, shall be included in the contract. NFS Clause 1852.227-73
provides restrictions on use and disclosure of restricted information
provided by the Government to the contractor if the information is
suitably marked with a legend indicating that its use and disclosure is
restricted or the information is specifically identified in the
contract or in writing by the Contracting Officer as being subject to
the clause. Further, this rule clarifies that contractor access to
restricted information that comprises third party limited rights data
or restricted computer software will be provided to contractors only as
authorized by the clause at 52.227-14, Rights in Data--General,
Alternates II and III.
NASA's waiver of the requirements of FAR 9.505-4 is updated in this
rule to reflect the changes made in 1827.405 as it relates to the
acquisition of services to support mission activities and management
and administrative functions.
This proposed rule removes clause 1852.237-72, Access to Sensitive
Information, and adds a new clause 1852.227-73, Handling and Protection
of Restricted Information, in its place. This new clause addresses
contractor responsibilities when performance of its contract requires
access to restricted information; defines ``restricted information;''
provides restrictions on use and disclosure of restricted information
provided by the Government; identifies exceptions; establishes that
this clause is subordinate to all other contract clauses or
requirements that specifically address the access, use, handling,
protection or disclosure of information; identifies remedies for breach
of any conditions of the clause; and requires flow-down of the clause
requirements to all subcontractors. The effect of this clause is to
create a non-disclosure agreement within the contract, eliminating the
need for separate non-disclosure agreements between contractors. Since
the clause at 1852.227-73, Handling and Protection of Restricted
Information, functions as a contractual non-disclosure agreement, the
clause may also be used, in conjunction with other appropriate
measures, as part of a plan to mitigate organizational conflicts of
interest resulting from unfair access to restricted information. This
clause alone does not create an adequate firewall to mitigate OCIs
resulting from unfair access to data.
This proposed rule also removes clause 1852.237-73, Release of
Sensitive Information, and adds a new clause 1852.227-74, Release of
Restricted Information, in its place. Consistent with 1852.227-73, this
clause includes the same definition of ``restricted information.''
Through this clause offerors and contractors agree that NASA may
release their restricted information to other contractors in accordance
with the procedures prescribed in 1827.405-70 and subject to the
safeguards and protections delineated in the clause at 1852.227-73,
Handling and Protection of Restricted Information. The clause at
1852.227-74 requires offerors and contractors to identify information
they claim to be restricted information provided to the Government in
the course of submitting proposals for a contract and performing a
contract by suitably marking such restricted information with a legend
indicating that use and disclosure of the information is restricted.
B. Regulatory Flexibility Act
This 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 the proposed
rule only clarifies existing NFS requirements.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 96-511) does not apply because
the changes to the NFS do not impose information collection
requirements that require the approval of OMB under 44 U.S.C. 3501, et
seq.
William P. McNally,
Assistant Administrator for Procurement.
This proposed rule was subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993.
Accordingly, 48 CFR parts 1809, 1827, 1837, and 1852 are proposed
to be amended as follows:
1. The authority citation for 48 CFR parts 1809, 1827, 1837, and
1852 continues to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1809--CONTRACTOR QUALIFICATIONS
2. Revise section 1809.505-4 to read as follows:
1809.505-4 Obtaining access to restricted information.
(b) In accordance with FAR 9.503, the Assistant Administrator for
Procurement has determined that it would not be in the Government's
[[Page 9862]]
interests for NASA to comply strictly with FAR 9.505-4(b) when
acquiring services to support mission activities and management and
administrative functions. The Assistant Administrator for Procurement
has, therefore, waived the requirement that before gaining access to
other companies' restricted information (see 1827.405-70) contractors
must enter specific agreements with each of those other companies to
protect their information from unauthorized use or disclosure.
Accordingly, NASA will not require contractors and subcontractors and
their employees in procurements that support NASA mission activities
and management and administrative functions to enter into separate,
interrelated third party agreements to protect restricted information
from unauthorized use or disclosure. As an alternative to numerous,
separate third party agreements, 1827.405-70 prescribes detailed policy
and procedures to protect contractors from unauthorized use or
disclosure of their restricted information. Nothing in this section
waives the requirements of FAR 37.204 and 1837.204.
PART 1827--PATENTS, DATA, AND COPYRIGHTS
3. Add sections 1827.405-70, 1827.405-71, and 1827.405-72 to read
as follows:
1827.405-70 Providing contractors access to restricted information.
(a)(1) As used in this subpart, ``restricted information'' means
recorded information, regardless of form or the media on which it may
be recorded, the use and dissemination of which is restricted, and
includes:
(i) Limited rights data;
(ii) Restricted computer software;
(iii) Information incidental to contract administration, such as
financial, administrative, cost or pricing, or management information
that embody trade secrets or are commercial or financial and
confidential or privileged; and
(iv) Information designated by NASA as Sensitive But Unclassified
(SBU).
(2) As used in this subpart, ``requiring organization'' refers to
the NASA organizational element or activity that requires specified
services or products to be provided under a contract.
(b)(1) In performance of NASA contracts, contractors, and their
subcontractors, may require access to restricted information in the
Government's possession, which may be entitled to protection from
unauthorized use or disclosure. The clause at 1852.227-73, Handling and
Protection of Restricted Information, will be used in contracts to
ensure that restricted information is properly protected from
unauthorized use or disclosure.
(2) Since the clause at 1852.227-73, Handling and Protection of
Restricted Information, functions as a contractual non-disclosure
agreement, the clause may also be used, as deemed appropriate and in
conjunction with other appropriate measures as necessary, to mitigate
organizational conflicts of interest resulting from unequal access to
restricted information.
(3) After contract award, the requiring organization shall review
any contractor's requests for access to restricted information to
determine whether the access is necessary to performance of the
contract and whether the information requested is considered
``restricted'' as defined in paragraph (a)(1) of this section, and
shall notify the Contracting Officer of such determination. If it is
determined that performance will necessitate access to restricted
information and the clause at 1852.227-73 is in the contract, the
restricted information may be provided to the contractor. If the clause
at 1852.227-73 was not initially included in the contract, the
contracting officer shall add the clause before restricted information
is provided to the contractor.
(4) Access to restricted information that comprises third party
limited rights data or restricted computer software will be provided to
contractors only as authorized by the clause at 52.227-14, Rights in
Data--General, Alternates II and III (see also FAR 27.402(c) and (d),
27.409(b)(3) and (b)(4), and 1827.409(c) and (d) for authorization to
revise Limited Rights and Restricted Rights notices to provide the
Government greater rights in limited rights data and restricted
computer software). All other restricted information will be provided
to contractors in compliance with the clause at 1852.227-74, Release of
Restricted Information. All restricted information provided to a
contractor will be handled by the contractor in compliance with
1852.227-73, Handling and Protection of Restricted Information.
(5)(i) The clause at 1852.227-73 provides restrictions on use and
disclosure of restricted information provided by the Government to the
contractor if the information is suitably marked with a legend
indicating that its use and disclosure is restricted or the information
is specifically identified in the contract or in writing by the
Contracting Officer as being subject to the clause. This includes
information incidental to contract administration, such as financial,
administrative, cost or pricing, or management information that
embodies trade secrets or are commercial or financial and confidential
or privileged, as well as information designated by NASA as Sensitive
But Unclassified (SBU).
(ii) Additionally, paragraph (d)(1) of the clause at 52.227-14,
Rights in Data--General, permits the Government to restrict a
contractor's right to use, release to others, reproduce, distribute, or
publish any data first produced or specifically used by the contractor
in the performance of a contract provided such restriction is expressly
set forth in the contract. Pursuant to this authority, the clause at
1852.227-73 provides restrictions on use and disclosure of third party
limited rights data and restricted computer software that may be
provided by the Government to its contactors.
(c) When a contractor is given access to restricted information in
performance of a contract and such restricted information is either
marked with a restrictive legend indicating that use and disclosure of
the information is restricted or is specifically identified in the
contract or in writing by the Contracting Officer as being subject to
restrictions, the contractor, and its subcontractors given access to
such restricted information, shall follow the steps outlined in the
clause at 1852.227-73, Handling and Protection of Restricted
Information, to protect the restricted information from unauthorized
use or disclosure.
(d) If the contractor will be operating an information technology
system for NASA that contains restricted information, the operating
contract shall include the clause at 1852.204-76, Security Requirements
for Unclassified Information Technology Resources, which requires the
implementation of an Information Technology Security Plan to protect
information processed, stored, or transmitted from unauthorized access,
alteration, disclosure, or use.
(e) The contracting officer may require the contractor to
demonstrate how it is complying with the clause at 1852.227-73,
Handling and Protection of Restricted Information, to protect from
unauthorized use or disclosure any restricted information provided
under the contract that is either marked with a restrictive legend
indicating that use and disclosure of the information is restricted or
is specifically identified in the contract or in writing by the
Contracting Officer as being subject to restrictions.
[[Page 9863]]
1827.405-71 Release of contractors' restricted information.
Pursuant to the clause at 1852.227-74, Release of Restricted
Information, offerors and contractors agree that NASA may release their
restricted information to other contractors in accordance with the
procedures prescribed in 1827.405-70 and subject to the safeguards and
protections delineated in the clause at 1852.227-73, Handling and
Protection of Restricted Information. As required by the clause at
1852.227-74, contractors must identify information they claim to be
restricted information submitted in the course of performing a contract
by suitably marking such restricted information with a legend
indicating that use and disclosure of the information is restricted.
The contracting officer shall evaluate all contractor claims regarding
such restricted information in deciding how NASA should respond to
requests from requiring organizations and contractors for access to
restricted information.
1827.405-72 NASA contract clauses.
(a) The contracting officer shall insert the clause at 1852.227-73,
Handling and Protection of Restricted Information, in all
solicitations, contracts, and basic ordering agreements, unless the
contracting officer determines that contract performance will not
require access to restricted information.
(b) The contracting officer shall insert the clause at 1852.227-74,
Release of Restricted Information, in all solicitations, contracts, and
basic ordering agreements.
PART 1837--SERVICE CONTRACTING
1837.203-70, 1837.203-71, and 1837.203-72 [Removed]
4. Remove sections 1837.203-70, 1837.203-71, and 1837.203-72.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Add sections 1852.227-73 and 1852.227-74 to read as follows:
1852.227-73 Handling and Protection of Restricted Information.
As prescribed in 1827.405-72(a), insert the following clause:
HANDLING AND PROTECTION OF RESTRICTED INFORMATION
(XX/XX)
(a) Definition. ``Restricted information,'' as used in this
clause, means recorded information, regardless of form or the media
on which it may be recorded, the use and dissemination of which is
restricted, and includes:
(1) Limited rights data;
(2) Restricted computer software;
(3) Information incidental to contract administration, such as
financial, administrative, cost or pricing, or management
information that embody trade secrets or are commercial or financial
and confidential or privileged; and
(4) Information designated by NASA as Sensitive But Unclassified
(SBU).
(b) Restrictions on use and disclosure of restricted
information. With regard to any restricted information to which the
Contractor is given access in performance of this contract that is
either marked with a restrictive legend indicating that use and
disclosure of the information is restricted or is specifically
identified in this contract or in writing by the Contracting Officer
as being subject to this clause, the Contractor agrees to:
(1) Use such restricted information only for the purposes of
performing the services specified in this contract, and not
appropriate the restricted information to its own or another's use;
(2) Safeguard the restricted information from unauthorized use
and disclosure;
(3) Allow access to the restricted information only to those
employees and subcontractors that need it to perform services under
this contract;
(4) Preclude access and disclosure of the restricted information
to persons and entities outside of the Contractor's or its
subcontractor's organization(s);
(5) Inform employees who may require access to the restricted
information about obligations to use it only to perform the services
specified in this contract and to safeguard it from unauthorized use
and disclosure;
(6) Require that each employee that has access to restricted
information complies with the obligations regarding restricted
information included in this clause; and
(7) Return or dispose of the restricted information, as NASA may
direct, when the restricted information is no longer needed for
performance of work under this contract.
(c) Exceptions.
(1) The obligations and prohibitions of paragraph (b) do not
apply to restricted information which the Contractor can demonstrate
to the Contracting Officer--
(i) Was publicly available at the time of receipt by the
Contractor or thereafter becomes publicly available without breach
of this contract;
(ii) Was known to, in the possession of, or developed by or for
the Contractor independently of the restricted information received
from the Government and such knowledge, possession, or independent
development can be shown;
(iii) Was received by the Contractor from a party other than the
owner of the restricted information, who has the authority to
release the restricted information and did not require the
Contractor to hold it in confidence; or
(iv) Is released to or becomes available to a third party on an
unrestricted basis from the owner of the restricted information,
someone acting under the owner's control, or with the prior written
approval of the owner.
(2) Under a valid order of a court or Government agency, the
Contractor may release restricted information to which the
Contractor is given access in performance of this contract, provided
that the Contractor provides prior written notice to the owner of
the restricted information of such obligation and the opportunity to
oppose such disclosure. The Contractor shall provide a copy of the
notice to the Contracting Officer.
(d) In the event that restricted information provided to the
Contractor includes a restrictive legend that the Contractor deems
to be ambiguous or unauthorized, the Contractor must notify the
Contracting Officer of such condition. Notwithstanding such a
notification, as long as the restrictive legend provides an
indication that a restriction on use or disclosure was intended, the
Contractor will treat the restricted information pursuant to the
requirements of this clause unless otherwise directed in writing by
the Contracting Officer or the owner of the restricted information.
(e) Other contractual restrictions on restricted information.
This clause is subordinate to all other contract clauses or
requirements that specifically address the access, use, handling,
protection or disclosure of information. If any restrictions or
authorizations in this clause are inconsistent with a requirement of
any other clause of this contract, the requirement of the other
clause shall take precedence over the requirement of this clause.
Third party limited rights data and restricted computer software
will be provided under this contract only as authorized by the
clause at 52.227-14, Rights in Data--General, Alternates II and III
(as modified by 1852.227-14, if applicable). If the Contractor
believes there is a conflict between this clause and another clause
in this contract regarding the access, use, handling, protection or
disclosure of restricted information, the Contractor must consult
with the Contracting Officer before taking subsequent actions under
the other clause.
(f) The Contracting Officer may require the Contractor to
demonstrate how it is complying with this Handling and Protection of
Restricted Information clause.
(g) Remedies. Recognizing that this contract establishes a high
standard of accountability and trust, the Contractor's breach of any
of the conditions of this clause may provide grounds for the
Government to--
(1) Disqualify the Contractor from subsequent related
contractual efforts;
(2) Debar the Contractor for serious misconduct affecting
present responsibility;
(3) Terminate the Contractor for default; or
(4) Pursue such other remedies as may be permitted by law,
regulation, or this contract.
(h) Subcontracts. The Contractor shall insert, or require the
insertion of, this clause, including this paragraph (h), suitably
modified to reflect the relationship of the parties, in all
subcontracts (regardless of tier).
(End of clause)
1852.227-74 Release of restricted information.
As prescribed in 1827.405-72(b), insert the following clause:
[[Page 9864]]
RELEASE OF RESTRICTED INFORMATION
(XX/XX)
(a) Definition. ``Restricted information,'' as used in this
clause, means recorded information, regardless of form or the media
on which it may be recorded, the use and dissemination of which is
restricted, and includes:
(1) Limited rights data;
(2) Restricted computer software;
(3) Information incidental to contract administration, such as
financial, administrative, cost or pricing, or management
information that embody trade secrets or are commercial or financial
and confidential or privileged; and
(4) Information designated by NASA as Sensitive But Unclassified
(SBU).
(b) In performance of NASA contracts, contractors, as well as
their subcontractors and their individual employees, may require
access to restricted information in the Government's possession. The
Contractor agrees that, where needed for the performance of a NASA
contract, NASA may release to its contractors, and their
subcontractors, restricted information delivered during the course
of this contract. Additionally, offerors agree that restricted
information submitted with their proposals may be provided to NASA
service contractors that assist NASA with contract closeout. If
suitably marked with a legend indicating that use and disclosure of
restricted information is restricted, such restricted information
will be subject to the enumerated protections mandated by this
clause and the clause at 1852.227-73, Handling and Protection of
Restricted Information. The Contractor's limited rights data and
restricted computer software will be provided to other NASA
contractors or subcontractors only as authorized by the clause at
52.227-14, Rights in Data--General, Alternates II and III (as
modified by 1852-227-14, if applicable).
(c) For purposes of marking such restricted information, the
Contractor may, in addition to any other notice or legend otherwise
required (e.g., notices required under the clause at 52.227-14,
Rights in Data--General, Alternates II and III), use a notice
similar to the following:
Mark the title page with the following legend:
This document was submitted by [insert submitter's name] in
performance Contract No. [insert contract no.]. Submitter asserts
that this document contains restricted information that embodies
trade secrets or is commercial or financial and privileged or
confidential. Such information shall not be disclosed outside of
NASA except in accordance with the clause at NFS 1852.227-73,
Handling and Protection of Restricted Information. This restriction
does not limit the Government's right to use this restricted
information if it is obtained from another source without
restriction. The restricted information subject to this notice is
contained in pages [insert page numbers or other identification of
pages].
Mark each page containing restricted information the Contractor
wishes to restrict with the following legend:
This page contains restricted information and is subject to the
restriction on the title page of this document.
(d) The Contracting Officer shall evaluate restricted
information marked in accordance with paragraph (c) of this clause.
Unless the Contracting Officer decides, with the advice of Center
legal counsel, that reasonable grounds exist to challenge the
markings, NASA and its contractors and subcontractors, shall comply
with all of the safeguards contained in paragraph (e) of this clause
and the clause at 1852.227-73, Handling and Protection of Restricted
Information.
(e) To receive access to restricted information needed to assist
NASA in accomplishing NASA mission activities and management and
administrative functions, the Contractor or subcontractor must be
operating under a contract that contains the clause at 1852.227-73,
Handling and Protection of Restricted Information, which obligates
the Contractor or subcontractor, with respect to restricted
information marked with a legend indicating that use and disclosure
of the information is restricted, to do the following:
(1) Use such restricted information only for the purpose of
performing the services specified in its contract, and not
appropriate the restricted information to its own or another's use;
(2) Safeguard such restricted information from unauthorized use
and disclosure;
(3) Allow access to such restricted information only to those
employees and subcontractors that need it to perform services under
the contract;
(4) Preclude access and disclosure of such restricted
information to persons and entities outside of the contractor's or
its subcontractor's organization(s);
(5) Inform employees who may require access to such restricted
information about obligations to use it only to perform the services
specified in its contract and to safeguard it from unauthorized use
and disclosure;
(6) Require that each employee that has access to restricted
information complies with the obligations regarding restricted
information included in this clause; and
(7) Return or dispose of such restricted information, as NASA
may direct, when the restricted information is no longer needed for
performance of work under the contract.
(f) Exceptions. The obligations and prohibitions of paragraph
(e) of this clause do not apply to restricted information which the
receiving contractor can demonstrate to the Contracting Officer--
(1) Was publicly available at the time of receipt by the
receiving contractor or thereafter becomes publicly available
without breach of the receiving contractor's contract;
(2) Was known to, in the possession of, or developed by or for
the receiving contractor independently of the restricted information
received from the Government and such knowledge, possession, or
independent development can be shown;
(3) Was received by the receiving contractor from a party other
than the owner of the restricted information, who has the authority
to release the restricted information and did not require the
receiving contractor to hold it in confidence;
(4) Is released to or becomes available to a third party on an
unrestricted basis from the owner of the restricted information,
someone acting under the owner's control, or with the prior written
approval of the owner; or
(5) Is required to be released under a valid order of a court or
Government agency, provided that the Contractor provides prior
written notice to the owner of the restricted information of such
obligation and the opportunity to oppose such disclosure.
(g) When a contractor will have primary responsibility for
operating an information technology system for NASA that contains
restricted information, the contractor's contract shall also include
the clause at 1852.204-76, Security Requirements for Unclassified
Information Technology Resources. The Security Requirements clause
requires the contractor to implement an Information Technology
Security Plan to protect information processed, stored, or
transmitted from unauthorized access, alteration, disclosure, or
use. Contractor personnel requiring privileged access or limited
privileged access to these information technology systems are
subject to screening using the standard National Agency Check (NAC)
forms appropriate to the level of risk for adverse impact to NASA
missions. The Contracting Officer may allow the Contractor to
conduct its own screening, provided the contractor employs
substantially equivalent screening procedures.
(h) This clause does not affect NASA's responsibilities under
the Freedom of Information Act.
(i) Subcontracts. The Contractor shall insert, or require the
insertion of, this clause, including this paragraph (i), suitably
modified to reflect the relationship of the parties, in all
subcontracts (regardless of tier).
(End of clause)
1852.237-72 and 1852.237-73 [Removed]
6. Remove sections 1852.237-72 and 1852.237-73.
[FR Doc. 2010-4408 Filed 3-3-10; 8:45 am]
BILLING CODE 7510-01-P
