99-27961. Standard Clause for Export Controlled Technology

[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 [e-mail].

FOR FURTHER INFORMATION CONTACT: Patrick Flynn, NASA, Office of 
Procurement, Contract Management Division (Code HK), [phone].

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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