[Federal Register Volume 64, Number 208 (Thursday, October 28, 1999)]
[Proposed Rules]
[Pages 58031-58032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27961]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1825 and 1852
Standard Clause for Export Controlled Technology
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: This is a proposed rule amending the NASA FAR Supplement (NFS)
to add a contract clause the purpose of which is to assure contractors
(and offerors) understand that they are responsible for controlling
export compliance in accordance with law and regulation, and that they
should not rely on NASA to obtain necessary licenses in execution of
the contracted work. This clause complies with performance based
contracting principles. It notifies the contractor of its
responsibilities under the International Traffic in Arms Regulations
(ITAR) and the Export Administration Regulations (EAR) during contract
performance. Additional, tailored clauses may be required when specific
exemptions or licenses are applicable, as, for example, with the
International Space Station. These clauses would be developed on a
case-by-case basis.
DATES: Comments should be submitted on or before December 27, 1999.
ADDRESSES: Interested parties should submit written comments to Patrick
Flynn, NASA Headquarters, Office of Procurement, Contract Management
Division (Code HK), Washington, DC 20546. Comments may also be
submitted by e-mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Patrick Flynn, NASA, Office of
Procurement, Contract Management Division (Code HK), (202) 358-0460.
SUPPLEMENTARY INFORMATION:
A. Background
The potential for disclosure of military or dual-use technology to
foreign powers is a serious concern throughout the Government. The
acquisition community should take steps to control exports of sensitive
data, and hardware, and services at all levels of contract management,
including subcontracts and technical interchanges. In response to field
center requests, NASA proposes an ``Export Licenses'' clause and
guidance for the NFS. The clause notifies contractors they are
responsible for obtaining all required licenses when exporting.
B. Regulatory Flexibility Act
NASA certifies that this regulation will not have a significant
economic impact on a substantial number of small business entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it
does not impose any new requirements.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the NFS do not impose any record keeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public that require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1825 and, 1852
Government procurement.
Tom Luedtke,
Associate Administrator for Procurement.
Accordingly, 48 CFR Part Parts 1825 and 1852 are proposed to be
amended as follows:
1. The authority citation for 48 CFR Parts 1825 and 1852 continues
to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
[[Page 58032]]
PART 1825--FOREIGN ACQUISITION
2. Sections 1825.970, 1825.970-1, and 1825.970-2 are added to read
as follows:
1825.970 Export control.
1825.970-1 Background.
(a) NASA contractors and subcontractors are subject to U.S. export
control laws and regulations, including the International Traffic in
Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and the Export
Administration Regulations (EAR), 15 CFR Parts 730 through 799. The
contractor is responsible for obtaining the appropriate licenses or
other approvals from the Department of State or the Department of
Commerce when it exports hardware, technical data, or software, or
provides technical assistance to a foreign destination or ``foreign
person'', as defined in 22 CFR 120.16, and there are no applicable or
available exemptions/exceptions to the ITAR/EAR, respectively. A person
who is lawfully admitted for permanent residence in the United States
is not a ``foreign person''. (See 22 CFR 120.165 and 15 CFR
734.2(b)(2)(ii).)
(b) The exemption at 22 CFR 125.4(b)(3) of the ITAR provides that a
contractor may export technical data without a license if the contract
between the agency and the exporter provides for the export of the
data. The clause at 1852.225-70, Alternate I, provides contractual
authority for the exemption, but the exemption is available only after
the contracting officer, or designated representative, provides written
authorization or direction enabling its use. It is NASA policy that the
exemption at 22 CFR 125.4(b)(3) may only be used when technical data
(including software) is exchanged with a NASA foreign partner pursuant
to the terms of an international agreement in furtherance of an
international collaborative effort. The contracting officer must obtain
the approval of the Center Export Administrator before granting the
contractor the authority to use this exemption.
1825.970-2 Contract clause.
Insert the clause at 1852.225-70, Export Licenses, in all
solicitations and contracts, except in contracts with foreign entities.
Insert the clause with its Alternate I when the NASA project office
indicates that technical data (including software) is to be exchanged
by the contractor with a NASA foreign partner pursuant to an
international agreement.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 1852.225-70 is added to read as follows:
1852.225-70 Export Licenses.
As prescribed in 1825.970-2, insert the following clause:
Export Licenses
(Date)
(a) The Contractor shall comply with all U.S. export control
laws and regulations, including the International Traffic in Arms
Regulations (ITAR), 22 CFR Parts 120-130, and the Export
Administration Regulations (EAR), 15 CFR Parts 730-799, in the
performance of this contract. In the absence of available license
exemptions/exceptions, the Contractor shall be responsible for
obtaining the appropriate licenses or other approvals, if required,
for exports of hardware, technical data, and software, or for the
provision of technical assistance.
(b) The Contractor shall be responsible for obtaining export
licenses, if required, before utilizing foreign persons in the
performance of this contract, including instances where the work is
to be performed on-site at [insert name of NASA installation], where
the foreign person will have access to export-controlled technical
data or software.
(c) The Contractor shall be responsible for all regulatory
record keeping requirements associated with the use of licenses and
license exemptions/exceptions.
(d) The Contractor shall be responsible for ensuring that the
provisions of this clause apply to its subcontractors.
(End of clause)
Alternate I
(Date)
As prescribed in 1825.970-2, add the following paragraph (e) as
Alternate I to the clause:
(e) The Contractor may request, in writing, that the Contracting
Officer authorize it to export ITAR-controlled technical data
(including software) pursuant to the exemption at 22 CFR
125.4(b)(3). The Contracting Officer or designated representative
may authorize or direct the use of the exemption where the data does
not disclose details of the design, development, production, or
manufacture of any defense article.
[FR Doc. 99-27961 Filed 10-27-99; 8:45 am]
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