Defense Federal Acquisition Regulation Supplement: Disclosure to Litigation Support Contractors (DFARS Case 2012-D029), 28724-28729 [2016-10822]

Download as PDF 28724 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. The costs involved in this action are imposed only by voluntary participation in a federal program. E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications as specified in Executive Order 13175. The EPA has concluded that this action will have no new tribal implications, nor would it present any additional burden on the tribes. It will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This action is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The underlying RD&D rule requires all RD&D permits to include terms and conditions that are at least as protective as the criteria for municipal solid waste landfills to assure protection of human health and the environment, and this rule does not reopen or otherwise change that requirement. ehiers on DSK5VPTVN1PROD with RULES H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes the human health and environmental risk addressed by this action will not have a new disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The underlying RD&D regulations require all RD&D permits to include terms and conditions that are at least as protective as the criteria for municipal solid waste landfills to assure protection of human health and the environment. This final rule is an administrative action to extend the maximum permit period, and it does not reopen or otherwise change the requirement for protectiveness. Therefore, the EPA finds that the human health and environmental risks addressed by this action will not have disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations, because this action does not affect the level of protection provided to human health or the environment. K. Congressional Review Act (CRA) This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 258 Environmental protection, Municipal landfills, Reporting and recordkeeping requirements, Waste treatment and disposal. Dated: April 29, 2016. Gina McCarthy, Administrator. For the reasons set forth in the preamble, EPA amends 40 CFR part 258 as follows: PART 258—CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS 1. The authority citation for part 258 continues to read as follows: ■ This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c) and 6949a(c), 6981(a). Subpart A—General 2. Revise § 258.4(e)(1) to read as follows: I. National Technology Transfer and Advancement Act (NTTAA) ■ This rulemaking does not involve technical standards. § 258.4 Research, development, and demonstration permits. VerDate Sep<11>2014 15:17 May 09, 2016 Jkt 238001 * PO 00000 * * Frm 00036 * Fmt 4700 * Sfmt 4700 (e) * * * (1) The total term for a permit for a project including renewals may not exceed twenty-one (21) years; and * * * * * [FR Doc. 2016–10993 Filed 5–9–16; 8:45 am] BILLING CODE 6560–50–P 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) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. AGENCY: 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: SUMMARY: 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: E:\FR\FM\10MYR1.SGM 10MYR1 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 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. ehiers on DSK5VPTVN1PROD with RULES 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 VerDate Sep<11>2014 15:17 May 09, 2016 Jkt 238001 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 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 28725 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, E:\FR\FM\10MYR1.SGM 10MYR1 28726 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 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. ehiers on DSK5VPTVN1PROD with RULES 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. 15:17 May 09, 2016 Jkt 238001 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. 2. Conforming Changes 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 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 C. Other Changes A summary of revisions made to the rule to make necessary conforming changes, clarifications, and editorial changes follows: VerDate Sep<11>2014 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. 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. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-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 offthe-shelf (COTS) items. E:\FR\FM\10MYR1.SGM 10MYR1 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 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. ehiers on DSK5VPTVN1PROD with RULES 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. VerDate Sep<11>2014 15:17 May 09, 2016 Jkt 238001 28727 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. 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. V. Regulatory Flexibility Act VI. Paperwork Reduction 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 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). IV. Executive Orders 12866 and 13563 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 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: ■ 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 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 E:\FR\FM\10MYR1.SGM 10MYR1 28728 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 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. ■ 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). ■ 4. Section 204.7403 is revised to read as follows: ehiers on DSK5VPTVN1PROD with RULES * 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 VerDate Sep<11>2014 15:17 May 09, 2016 Jkt 238001 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 5. Amend section 209.505–4 by— a. Redesignating paragraph (b) as paragraph (b)(i); ■ b. In newly resdesignated paragraph (b)(i), removing ‘‘For contractors’’ and adding ‘‘For contractors, other than litigation support contractors,’’ in its place; and ■ 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] 6. Amend section 212.301 by— a. In paragraph (f)(ii)(E), removing the term ‘‘Solicitation’’; and ■ 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. ■ ■ PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 7. Amend section 252.204–7013 by— a. Revising the section heading. b. In the clause heading, removing ‘‘Support Solicitation Offerors’’ and adding ‘‘Support Offerors’’ in its place; ■ c. Removing the clause date ‘‘(FEB 2014)’’ and adding ‘‘(MAY 2016)’’ in its place; ■ d. Revising paragraph (a). ■ e. In the paragraph (b) introductory text, adding ‘‘that’’ after ‘‘acknowledges’’; ■ f. In paragraph (b)(1), removing ‘‘That all’’ and adding ‘‘All’’ in its place; ■ g. In paragraph (b)(2), removing ‘‘That the’’ and adding ‘‘The’’ in its place; ■ h. In paragraph (b)(3), removing ‘‘That’’ and adding ‘‘The’’ in its place and removing ‘‘contracts.’’ and adding ‘‘contracts; and’’ in its place; ■ i. Adding paragraph (b)(4); and ■ 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 E:\FR\FM\10MYR1.SGM 10MYR1 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations 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. * * * * * ■ 8. Amend section 252.204–7014 by— ■ a. In the clause heading, removing the clause date ‘‘(FEB 2014)’’ and adding ‘‘(MAY 2016)’’ in its place; ■ b. In paragraph (a), revising the introductory text and the definitions of ‘‘Litigation information’’, ‘‘Litigation support contractor’’, and ‘‘Sensitive information’’; ■ c. Revising paragraph (b); ■ d. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), and (f); ■ e. Adding a new paragraph (c); ■ 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 ■ 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. ehiers on DSK5VPTVN1PROD with RULES * * * * * (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. * * * * * VerDate Sep<11>2014 15:17 May 09, 2016 Jkt 238001 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. * * * * * ■ 9. Amend section 252.204–7015 by— ■ a. Revising the section heading, introductory text, the clause heading, and paragraph (a); and ■ 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 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 28729 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 DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 215, 216, and 225 Defense Federal Acquisition Regulation Supplement; Technical Amendments Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. AGENCY: DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to provide needed editorial changes. DATES: Effective May 10, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Jennifer L. Hawes, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), Room SUMMARY: E:\FR\FM\10MYR1.SGM 10MYR1

Agencies

[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)]
[Rules and Regulations]
[Pages 28724-28729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10822]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204, 209, 212, 227, 237, and 252

[Docket DARS-2014-0017]
RIN 0750-AH54


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

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is adopting as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement a section of the National Defense Authorization Act for 
Fiscal Year 2012 that provides DoD the authority to allow its 
litigation support contractors access to ``sensitive information'' 
subject to certain restrictions.

DATES: Effective May 10, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-
372-6106.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published an interim rule in the Federal Register at 79 FR 
11337 on February 28, 2014, to implement section 802 of the National 
Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), which 
provides DoD the express authority to allow its litigation support 
contractors access to ``sensitive information,'' provided that the 
litigation support contractor is subject to certain restrictions on 
using and disclosing such information. Two respondents submitted public 
comments in response to the interim rule.

II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final 
rule. A discussion of the comments received and the changes made to the 
rule as a result of those comments follows:

[[Page 28725]]

A. Summary of Significant Changes From the Interim Rule

    1. A new paragraph (b)(4) is added to the provision at DFARS 
252.204-7013 and a new paragraph (b)(5) is added to the clause at DFARS 
252.204-7014 to clarify that the offeror and the contractor, 
respectively, shall destroy or return to the Government, at the request 
of the contracting officer, all litigation information in its 
possession upon completion of the authorized litigation support 
activities.
    2. A new paragraph (b)(2) is added to the clause at DFARS 252.204-
7014 to clarify that the contractor shall not disclose litigation 
information to any entity outside the contractor's organization unless, 
prior to disclosure, the contracting officer has provided written 
consent.

B. Analysis of Public Comments

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

[[Page 28726]]

it is not clear whether litigation support contractors and any 
subcontractors would be subject to DFARS clause 252.204-7000, 
Disclosure of Information.
    Response: This rule does not affect the applicability of the clause 
DFARS at 252.204-7000. In accordance with its prescription at DFARS 
204.404-70(a), the clause applies to all solicitations and contracts 
when the contractor will have access to or generate unclassified 
information that may be sensitive and inappropriate for release to the 
public. That clause will flow down to subcontracts, in accordance with 
paragraph (c) of the clause. There is no conflict between the DFARS 
252.204-7000 clause and the DFARS 252.204-7014 clause, at the prime or 
subcontract level. The clause at DFARS 252.204-7000 prohibits the 
release of information outside the contractor's organization without 
permission from the contracting officer, while the DFARS 252.204-7014 
clause requires the litigation support contractor to protect against 
any unauthorized releases of information, and does not authorize the 
contractor to make any releases outside the contractor's organization. 
However, to minimize any potential confusion, paragraph (b)(2) is added 
to the DFARS 252.204-7014 clause to state more clearly that it does not 
authorize the contractor to release litigation information outside the 
contractor's organization without permission of the contracting 
officer. Contracting officers, in conjunction with the Government 
litigation team, maintain control over the flow of information to 
litigation support contractors and outside parties.
8. Prescription Conflict
    Comment: One respondent pointed out that the prescription in the 
interim rule at DFARS 204.7403(c) would have precluded DFARS 252.204-
7015 from ever being included in a contract.
    Response: This error was corrected in a technical amendment to the 
DFARS published in the Federal Register at 79 FR 13568 on March 11, 
2014.

C. Other Changes

    A summary of revisions made to the rule to make necessary 
conforming changes, clarifications, and editorial changes follows:
1. Definitions
    a. The definition of ``litigation information'' is revised to 
clarify that information contained in publicly available solicitations 
will not be protected from disclosure as litigation information, 
because the information has already been released to the public. A 
corresponding policy statement is also added at DFARS 204.7402(c).
    b. A policy statement is added at DFARS 204.7402(d) to state that 
contracting officers, when sharing sensitive information with a 
litigation support contractor, shall ensure that all other applicable 
requirements for handling and safeguarding the relevant types of 
sensitive information re included in the contract (e.g., FAR subparts 
4.4 and 24.1; DFARS subparts 204.4 and 224.1).
    c. The definition of ``litigation support contractor'' is revised 
to clarify that, in addition to experts and technical consultants, the 
term also includes the contractor's subcontractors and suppliers. The 
text ``the Department of Defense'' is also removed, since the clause is 
only used in DoD contracts.
    d. DFARS subpart 204.74, the provision at 252.204-7013, and the 
clauses at 252.204-7014 and 252.204-7015 are revised to include the 
full text of all relevant definitions, rather than cross-referencing 
the definitions that were provided in full-text only in the contract 
clause at DFARS 252.204-7014. Further, the definition of ``sensitive 
information'' is clarified by removing the term ``confidential 
information'' and replacing it with ``controlled unclassified 
information'' in subpart 204.74, the provision, and the clauses.
2. Conforming Changes
    a. A conforming change has been made to DFARS 209.505-4(b)(i) in 
order to differentiate between the requirements that pertain to 
litigation support contractors from the requirements for other 
contractors, consistent with the changes in this rule.
    b. DFARS 209.505-4(b)(ii) is added to clarify the policies and 
procedures (set forth in 204.74 and associated provisions and clauses) 
governing access to proprietary information for litigation support 
activities as an element of the coverage for organizational and 
consultant conflicts of interest.
3. Technical Clarifications
    a. At paragraph (c)(2) of the provision at DFARS 252.204-7013 and 
at paragraph (d)(2) of the clause at DFARS 252.204-7014, the reference 
to ``data or software'' is changed to ``litigation information'' and 
the reference to ``the unauthorized duplication, release or 
disclosure'' is changed to ``any such unauthorized use or disclosure,'' 
to more accurately refer to all of the unauthorized activities 
described at paragraph (c)(1) of the provision and paragraph (d)(1) of 
the clause.
    b. The term ``Solicitation'' is removed from the title of the 
provision at DFARS 252.204-7013, as it is not necessary because the 
title already refers to ``Offerors.''
    c. Paragraph (b) of the clause at DFARS 252.204-7014 is revised to 
state that the contractor ``shall'' instead of ``agrees and 
acknowledges'' to ensure the contractor complies with the limitations 
set forth in paragraph (b) during contract performance.
    d. The title of the clause at DFARS 252.204-7015 is revised to 
``Notice of Authorized Disclosure of Information for Litigation 
Support'' to more accurately depict the intent of the clause.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    The prescriptions for use of the provision and clauses of this 
rule, which implement section 802 of the National Defense Authorization 
Act (NDAA) for Fiscal Year (FY) 2012 (Pub. L. 112-81) include use in 
contracts and subcontracts valued at or below the simplified 
acquisition threshold (SAT) and contracts and subcontracts for the 
acquisition of commercial items, including commercially available off-
the-shelf (COTS) items.

A. Applicability to Contracts at or Below the SAT

    41 U.S.C. 1905 governs the applicability of laws to contracts or 
subcontracts in amounts not greater than the SAT. It is intended to 
limit the applicability of laws to such contracts or subcontracts. 41 
U.S.C. 1905 provides that if a provision of law contains criminal or 
civil penalties, or if the FAR Council makes a written determination 
that it is not in the best interest of the Federal Government to exempt 
contracts or subcontracts at or below the SAT, the law will apply to 
them. The Director, Defense Procurement and Acquisition Policy (DPAP), 
is the appropriate authority to make comparable determinations for 
regulations to be published in the DFARS, which is part of the FAR 
system of regulations.
    DoD has determined that it is in the best interest of the Federal 
Government to apply the rule to contracts and subcontracts in amounts 
not greater than the SAT. Section 802 of the NDAA for FY 2012 was 
enacted to ensure DoD ligation support contractors protect sensitive 
information from any unauthorized disclosure and are prohibited from 
using such information for any purpose other than providing

[[Page 28727]]

litigation support services to DoD. Based on data available in the 
Federal Procurement Data System (FPDS) for FY 2015, 421 of the 453 
total DoD awards for professional attorney services or associated legal 
services were valued at less than the SAT. An exception for contracts 
valued at or under the SAT would exclude a large portion (93 percent) 
of the contracts intended to be covered by section 802, thereby 
undermining the overarching public policy purpose of the law and 
adversely affecting the Government's ability to successfully engage in 
legal proceedings.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including COTS Items

    41 U.S.C. 1906 governs the applicability of laws to contracts for 
the acquisition of commercial items, and is intended to limit the 
applicability of laws to contracts for the acquisition of commercial 
items. 41 U.S.C. 1906 provides that if a provision of law contains 
criminal or civil penalties, or if the FAR Council makes a written 
determination that it is not in the best interest of the Federal 
Government to exempt commercial item contracts, the provision of law 
will apply to contracts for the acquisition of commercial items. 
Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS 
items, with the Administrator for Federal Procurement Policy the 
decision authority to determine that it is in the best interest of the 
Government to apply a provision of law to acquisitions of COTS items in 
the FAR. The Director, DPAP, is the appropriate authority to make 
comparable determinations for regulations to be published in the DFARS, 
which is part of the FAR system of regulations.
    Given that the requirements of section 802 of the NDAA for FY 2008 
were enacted to protect sensitive information provided to DoD 
litigation support contractors from unauthorized use and disclosure, 
DoD has determined that it is in the best interest of the Federal 
Government to apply the rule to contracts for the acquisition of 
commercial items, as defined at FAR 2.101. Based on data available in 
FPDS for FY 2015, 352 of the 453 total DoD awards for legal support 
services were classified as commercial contracts. An exception for 
contracts for the acquisition of commercial items, would exclude 78 
percent of the contracts intended to be covered by the law, thereby 
undermining the overarching public policy purpose of the law.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

V. Regulatory Flexibility Act

    DoD does not expect this final rule to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, a final 
regulatory flexibility analysis has been prepared and is summarized as 
follows:
    This rule amends the Defense Federal Acquisition Regulation 
Supplement (DFARS) to implement statutory authority (10 U.S.C. 129d) 
for DoD to allow its litigation support contractors to have access to 
``sensitive information,'' provided that the litigation support 
contractor is subject to certain restrictions on using and disclosing 
such information.
    The objective of the rule is to expressly authorize DoD to provide 
its ligation support contractors with access to certain types of non-
public information, provided that the ligation support contractors are 
required to protect that information from any unauthorized disclosure, 
and are prohibited from using that for any purpose other than providing 
litigation support services to DoD.
    No significant issues were raised by the public comments in 
response to the initial regulatory flexibility analysis published with 
the interim rule.
    According to data available in the Federal Procurement Data System 
for fiscal year 2015, DoD awarded 453 total contracts for legal support 
services to 212 unique vendors. Of those awards, 340 awards or 75 
percent were made to 162 small businesses.
    The rule imposes no reporting, recordkeeping, or other information 
collection requirements; rather, the rule subjects litigation support 
contractors to certain restrictions on using and disclosing litigation 
support information. DoD organizations using litigation support 
contractors are generally already using very restrictive nondisclosure 
agreements to govern any sensitive information that may be provided to, 
or developed or discovered by, the litigation support contractors in 
providing litigation support services for DoD. These DoD organizations 
will likely review their current practices and make any necessary 
modifications to ensure that there are no inconsistencies with the new 
requirements. As such, DoD does not expect the rule to have a 
significant economic impact on the small businesses affected by this 
rule.
    There are no known significant alternatives to the rule. The impact 
of this rule on small business is not expected to be significant.

VI. Paperwork Reduction Act

    The rule contains no new information collection requirements that 
require the approval of the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 204, 209, 212, 227, 237, and 252

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, the interim rule amending 48 CFR parts 204, 212, 227, 
237, and 252 which was published at 79 FR 11338 on February 28, 2014, 
is adopted as a final rule with the following changes:

0
1. The authority citation for 48 CFR parts 204, 209, 212, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 204--ADMINISTRATIVE MATTERS

0
2. Section 204.7401 is revised to read as follows:


204.7401  Definitions.

    As used in this subpart--
    Computer software means computer programs, source code, source code 
listings, object code listings, design details, algorithms, processes, 
flow charts, formulae, and related material that would enable the 
software to be reproduced, recreated, or recompiled. Computer software 
does not include computer data bases or computer software 
documentation.
    Litigation information means any information, including sensitive 
information, that is furnished to the

[[Page 28728]]

contractor by or on behalf of the Government, or that is generated or 
obtained by the contractor in the performance of litigation support 
under a contract. The term does not include information that is 
lawfully, publicly available without restriction, including information 
contained in a publicly available solicitation.
    Litigation support means administrative, technical, or professional 
services provided in support of the Government during or in 
anticipation of litigation.
    Litigation support contractor means a contractor (including its 
experts, technical consultants, subcontractors, and suppliers) 
providing litigation support under a contract that contains the clause 
at 252.204-7014, Limitations on the Use or Disclosure of Information by 
Litigation Support Contractors.
    Sensitive information means controlled unclassified information of 
a commercial, financial, proprietary, or privileged nature. The term 
includes technical data and computer software, but does not include 
information that is lawfully, publicly available without restriction.
    Technical data means recorded information, regardless of the form 
or method of the recording, of a scientific or technical nature 
(including computer software documentation). The term does not include 
computer software or data incidental to contract administration, such 
as financial and/or management information.

0
3. Section 204.7402 is amended by adding paragraphs (c) and (d) to read 
as follows:


204.7402  Policy.

* * * * *
    (c) Information that is publicly available without restriction, 
including publicly available solicitations for litigation support 
services, will not be protected from disclosure as litigation 
information.
    (d) When sharing sensitive information with a litigation support 
contractor, contracting officers shall ensure that all other applicable 
requirements for handling and safeguarding the relevant types of 
sensitive information are included in the contract (e.g., FAR subparts 
4.4 and 24.1; DFARS subparts 204.4 and 224.1).

0
4. Section 204.7403 is revised to read as follows:


204.7403  Solicitation provision and contract clauses.

    (a) Use the provision at 252.204-7013, Limitations on the Use or 
Disclosure of Information by Litigation Support Offerors, in all 
solicitations for contracts that involve litigation support services, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items.
    (b) Use the clause at 252.204-7014, Limitations on the Use or 
Disclosure of Information by Litigation Support Contractors, in all 
solicitations and contracts that involve litigation support services, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items.
    (c) Use the clause at 252.204-7015, Notice of Authorized Disclosure 
of Information for Litigation Support, in all solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items.

PART 209--CONTRACTOR QUALIFICATIONS

0
5. Amend section 209.505-4 by--
0
a. Redesignating paragraph (b) as paragraph (b)(i);
0
b. In newly resdesignated paragraph (b)(i), removing ``For 
contractors'' and adding ``For contractors, other than litigation 
support contractors,'' in its place; and
0
c. Adding new paragraph (b)(ii).
    The addition reads as follows:


209.505-4  Obtaining access to proprietary information.

    (b) * * *
    (ii) For litigation support contractors accessing litigation 
information, including that originating from third parties, use and 
nondisclosure requirements are addressed through the use of the 
provision at 252.204-7013 and the clause at 252.204-7014, as prescribed 
at 204.7404(a) and 204.7404(b), respectively. Pursuant to that 
provision and clause, litigation support contractors are not required 
to enter into nondisclosure agreements directly with any third party 
asserting restrictions on any litigation information.

PART 212--SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR THE 
ACQUISITION OF COMMERCIAL ITEMS


212.301  [Amended]

0
6. Amend section 212.301 by--
0
a. In paragraph (f)(ii)(E), removing the term ``Solicitation''; and
0
b. In paragraph (f)(ii)(G), removing ``Disclosure of Information to 
Litigation Support Contractors'' and adding ``Notice of Authorized 
Disclosure of Information for Litigation Support'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
7. Amend section 252.204-7013 by--
0
a. Revising the section heading.
0
b. In the clause heading, removing ``Support Solicitation Offerors'' 
and adding ``Support Offerors'' in its place;
0
c. Removing the clause date ``(FEB 2014)'' and adding ``(MAY 2016)'' in 
its place;
0
d. Revising paragraph (a).
0
e. In the paragraph (b) introductory text, adding ``that'' after 
``acknowledges'';
0
f. In paragraph (b)(1), removing ``That all'' and adding ``All'' in its 
place;
0
g. In paragraph (b)(2), removing ``That the'' and adding ``The'' in its 
place;
0
h. In paragraph (b)(3), removing ``That'' and adding ``The'' in its 
place and removing ``contracts.'' and adding ``contracts; and'' in its 
place;
0
i. Adding paragraph (b)(4); and
0
j. In paragraph (c)(2), removing ``such data or software, for the 
unauthorized duplication, release, or disclosure'' and adding ``such 
litigation information, for any such unauthorized use or disclosure'' 
in its place.
    The revisions and addition read as follows:


252.204-7013  Limitations on the Use or Disclosure of Information by 
Litigation Support Offerors.

* * * * *
    (a) Definitions. As used in this provision--
    Computer software means computer programs, source code, source code 
listings, object code listings, design details, algorithms, processes, 
flow charts, formulae, and related material that would enable the 
software to be reproduced, recreated, or recompiled. Computer software 
does not include computer data bases or computer software 
documentation.
    Litigation information means any information, including sensitive 
information, that is furnished to the contractor by or on behalf of the 
Government, or that is generated or obtained by the contractor in the 
performance of litigation support under a contract. The term does not 
include information that is lawfully, publicly available without 
restriction, including information contained in a publicly available 
solicitation.
    Litigation support means administrative, technical, or professional 
services provided in support of the Government during or in 
anticipation of litigation.
    Sensitive information means controlled unclassified information of 
a

[[Page 28729]]

commercial, financial, proprietary, or privileged nature. The term 
includes technical data and computer software, but does not include 
information that is lawfully, publicly available without restriction.
    Technical data means recorded information, regardless of the form 
or method of the recording, of a scientific or technical nature 
(including computer software documentation). The term does not include 
computer software or data incidental to contract administration, such 
as financial and/or management information.
    (b) * * *
    (4) Upon completion of the authorized litigation support 
activities, the Offeror will destroy or return to the Government at the 
request of the Contracting Officer all litigation information in its 
possession.
* * * * *

0
8. Amend section 252.204-7014 by--
0
a. In the clause heading, removing the clause date ``(FEB 2014)'' and 
adding ``(MAY 2016)'' in its place;
0
b. In paragraph (a), revising the introductory text and the definitions 
of ``Litigation information'', ``Litigation support contractor'', and 
``Sensitive information'';
0
c. Revising paragraph (b);
0
d. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), 
and (f);
0
e. Adding a new paragraph (c);
0
f. In newly redesignated paragraph (d)(2), removing ``such data or 
software, for the unauthorized duplication, release, or disclosure'' 
and adding ``such litigation information, for any such unauthorized use 
or disclosure'' in its place; and
0
g. In newly redesignated paragraph (f), removing ``this paragraph (e)'' 
and add ``this paragraph (f)'' in its place.
    The revisions and addition read as follows:


252.204-7014  Limitations on the Use or Disclosure of Information by 
Litigation Support Contractors.

* * * * *
    (a) Definitions. As used in this clause--
* * * * *
    Litigation information means any information, including sensitive 
information, that is furnished to the contractor by or on behalf of the 
Government, or that is generated or obtained by the contractor in the 
performance of litigation support under a contract. The term does not 
include information that is lawfully, publicly available without 
restriction, including information contained in a publicly available 
solicitation.
* * * * *
    Litigation support contractor means a contractor (including its 
experts, technical consultants, subcontractors, and suppliers) 
providing litigation support under a contract that contains this 
clause.
    Sensitive information means controlled unclassified information of 
a commercial, financial, proprietary, or privileged nature. The term 
includes technical data and computer software, but does not include 
information that is lawfully, publicly available without restriction.
* * * * *
    (b) Limitations on use or disclosure of litigation information. 
Notwithstanding any other provision of this contract, the Contractor 
shall--
    (1) Access and use litigation information only for the purpose of 
providing litigation support under this contract;
    (2) Not disclose litigation information to any entity outside the 
Contractor's organization unless, prior to such disclosure the 
Contracting Officer has provided written consent to such disclosure;
    (3) Take all precautions necessary to prevent unauthorized 
disclosure of litigation information;
    (4) Not use litigation information to compete against a third party 
for Government or nongovernment contracts; and
    (5) Upon completion of the authorized litigation support 
activities, destroy or return to the Government at the request of the 
Contracting Officer all litigation information in its possession.
    (c) Violation of paragraph (b)(1),(b)(2), (b)(3), (b)(4), or (b)(5) 
of this clause is a basis for the Government to terminate this 
contract.
* * * * *

0
9. Amend section 252.204-7015 by--
0
a. Revising the section heading, introductory text, the clause heading, 
and paragraph (a); and
0
b. In the paragraph (b) heading, removing ``Authorized disclosure'' and 
adding ``Notice of authorized disclosures'' in its place.
    The revision read as follows:


252.204-7015  Notice of Authorized Disclosure of Information for 
Litigation Support.

    As prescribed in 204.7403(c), use the following clause:
Notice of Authorized Disclosure of Information for Litigation Support 
(May 2016)
    (a) Definitions. As used in this clause--
    Computer software means computer programs, source code, source code 
listings, object code listings, design details, algorithms, processes, 
flow charts, formulae, and related material that would enable the 
software to be reproduced, recreated, or recompiled. Computer software 
does not include computer data bases or computer software 
documentation.
    Litigation support means administrative, technical, or professional 
services provided in support of the Government during or in 
anticipation of litigation.
    Litigation support contractor means a contractor (including its 
experts, technical consultants, subcontractors, and suppliers) 
providing litigation support under a contract that contains the clause 
at 252.204-7014, Limitations on the Use or Disclosure of Information by 
Litigation Support Contractors.
    Sensitive information means controlled unclassified information of 
a commercial, financial, proprietary, or privileged nature. The term 
includes technical data and computer software, but does not include 
information that is lawfully, publicly available without restriction.
    Technical data means recorded information, regardless of the form 
or method of the recording, of a scientific or technical nature 
(including computer software documentation). The term does not include 
computer software or data incidental to contract administration, such 
as financial and/or management information.
* * * * *

[FR Doc. 2016-10822 Filed 5-9-16; 8:45 am]
BILLING CODE 5001-06-P