9860 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Proposed Rules 

the substitution of channel 25 for 

channel 21 at Beaumont. 

DATES: Comments must be filed on or 

before March 19, 2010, and reply 

comments on or before March 29, 2010. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 

445 12th Street, SW., Washington, DC 

20554. In addition to filing comments 

with the FCC, interested parties should 

serve counsel for petitioner as follows: 

John P. Janka, Esq., Latham & Watkins 

LLP, 555 Eleventh Street, NW., 

Washington, DC 20005. 

FOR FURTHER INFORMATION CONTACT: 

Adrienne Y. Denysyk, 

adrienne.denysyk@fcc.gov, Media 

Bureau, (202) 418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

10–49, adopted February 23, 2010, and 

released February 24, 2010. The full text 

of this document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street, SW., 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs). (Documents will 

be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1– 

800–478–3160 or via e-mail http:// 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. Members of the public 

should note that from the time a Notice 

of Proposed Rule Making is issued until 

the matter is no longer subject to 

Commission consideration or court 

review, all ex parte contacts (other than 

ex parte presentations exempt under 47 

CFR 1.1204(a)) are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1208 for rules governing 

restricted proceedings. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622 [Amended] 

2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Texas, is amended by adding 

channel 25 and removing channel 21 at 

Beaumont. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. 2010–4566 Filed 3–3–10; 8:45 am] 

BILLING CODE 6712–01–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1809, 1827, 1837, and 

1852 

RIN 4700–AD43 

Release, Handling, and Protection of 

Restricted Information 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule amends 

the NASA Federal Acquisition 

Regulation (FAR) Supplement (NFS) to 

clarify the policy and procedures 

regarding the release of contractors’ 

restricted information and the handling 

and protection of restricted information 

by contractors. This document proposes 

to change the term ‘‘sensitive 

information’’ to ‘‘restricted information;’’ 

clarify what data constitutes restricted 

information; and revise and move the 

coverage relative to providing 

contractors access to restricted 

information and release of contractors’ 

restricted information to another part. 

These changes are required to clarify the 

applicability of clauses addressing 

contractor handling and protection of 

restricted information and to clarify 

what data constitutes restricted 

information. Additionally, these 

changes will provide for consistent 

application of clauses and 

understanding of what constitutes 

restricted information. This proposed 

rule would also update NASA’s waiver 

of the requirements of FAR 9.505–4 to 

reflect the policy and procedures 

regarding the release of contractors’ 

restricted information and the handling 

and protection of restricted information 

by contractors. This proposed 

rulemaking would monitor and work to 

align with recent administration efforts 

to review the controlled unclassified 

information (CUI) framework to the 

extent that it impacts information 

designation, protection, release, and 

handling procedures addressed in this 

proposed rule. 

DATES: Comments should be submitted 

on or before May 3, 2010 to be 

considered in formulation of the final 

rule. 

ADDRESSES: Interested parties may 

submit comments, identified by RIN 

number 2700–AD43, via the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments may also be submitted to 

Leigh Pomponio, NASA Headquarters, 

Office of Procurement, Contract 

Management Division, Washington, DC 

20546. Comments may also be 

submitted by e-mail to 

leigh.pomponio@nasa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Leigh Pomponio, Office of Procurement, 

Contract Management Division, (202) 

358–0592, e-mail: 

leigh.pomponio.@nasa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Currently the NFS addresses the 

release of contractors’ sensitive 

information and access to sensitive 

information in NFS Part 1837, Service 

Contracting and NFS Subpart 1837.2, 

Advisory and Assistance Services, uses 

the term ‘‘sensitive information’’ to 

describe data that may be subject to 

certain restrictions or subject to special 

handling procedures and protection 

from inappropriate disclosure. This rule 

changes the term ‘‘sensitive information’’ 

to ‘‘restricted information’’ as well as 

amends and moves from NFS Subpart 

1837.2 to NFS Subpart 1827.4, Rights in 

Data and Copyrights, NASA’s policy on 

release and protection and handling of 

such information. This action serves to 

clarify the nature of the information and 


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better reflect NASA’s existing policy 

and application of the clauses to more 

than service contracts. NASA’s waiver 

of the requirements of FAR 9.505–4 is 

updated in this rule to reflect the 

changes made in 1827.405. This rule 

also removes clauses 1852.237–72, 

Access to Sensitive Information, and 

1852.237–73, Release of Sensitive 

Information, and adds clauses 

1852.227–73, Handling and Protection 

of Restricted Information, and 

1852.227–74, Release of Restricted 

Information, respectively, in their place. 

To better reflect the nature of the 

information, the new NFS section, 

1827.405–70, more specifically 

identifies ‘‘restricted information’’ as 

recorded information, regardless of form 

or the media on which it may be 

recorded, the use and dissemination of 

which is restricted, and includes: (1) 

Limited rights data, (2) restricted 

computer software, (3) information 

incidental to contract administration, 

such as financial, administrative, cost or 

pricing, or management information that 

embody trade secrets or are commercial 

or financial and confidential or 

privileged, and (4) information 

designated by NASA as Sensitive But 

Unclassified (SBU). This change does 

not expand the universe of ‘‘data’’ that 

clauses 1852.237–72 and 1852.237–73 

address. The original definition for 

‘‘sensitive information’’ contained in 

1837.203–70 covered information that a 

contractor has developed at private 

expense, or that the Government has 

generated that qualifies for exception to 

the Freedom of Information Act, which 

is not currently in the public domain, 

and which may embody trade secrets or 

commercial or financial information, 

and which may be sensitive or 

privileged. Commercial or financial 

information which may be sensitive or 

privileged is specifically covered in 

both the original and new clauses. The 

only other ‘‘trade secret’’ information 

provided by contractors under existing 

FAR and NFS clauses is Limited Rights 

Data and Restricted Computer Software 

that may be delivered under Alt II and 

III of FAR clause 52.227–14, Rights in 

Data-General. These are now 

specifically listed. Information that the 

Government has generated that qualifies 

for an exception to the Freedom of 

Information Act is now referred to as 

information designated by NASA as 

SBU. 

The new NFS section 1827.405–70(b) 

clarifies applicability by removing 

reference to the term ‘‘service provider.’’ 

If, in performance of NASA contracts, 

contractors and their subcontractors 

may require access to restricted 

information in the Government’s 

possession, which may be entitled to 

protection from unauthorized use or 

disclosure, then the clause at 1852.227– 

73, Handling and Protection of 

Restricted Information, shall be 

included in the contract. NFS Clause 

1852.227–73 provides restrictions on 

use and disclosure of restricted 

information provided by the 

Government to the contractor if the 

information is suitably marked with a 

legend indicating that its use and 

disclosure is restricted or the 

information is specifically identified in 

the contract or in writing by the 

Contracting Officer as being subject to 

the clause. Further, this rule clarifies 

that contractor access to restricted 

information that comprises third party 

limited rights data or restricted 

computer software will be provided to 

contractors only as authorized by the 

clause at 52.227–14, Rights in Data— 

General, Alternates II and III. 

NASA’s waiver of the requirements of 

FAR 9.505–4 is updated in this rule to 

reflect the changes made in 1827.405 as 

it relates to the acquisition of services to 

support mission activities and 

management and administrative 

functions. 

This proposed rule removes clause 

1852.237–72, Access to Sensitive 

Information, and adds a new clause 

1852.227–73, Handling and Protection 

of Restricted Information, in its place. 

This new clause addresses contractor 

responsibilities when performance of its 

contract requires access to restricted 

information; defines ‘‘restricted 

information;’’ provides restrictions on 

use and disclosure of restricted 

information provided by the 

Government; identifies exceptions; 

establishes that this clause is 

subordinate to all other contract clauses 

or requirements that specifically address 

the access, use, handling, protection or 

disclosure of information; identifies 

remedies for breach of any conditions of 

the clause; and requires flow-down of 

the clause requirements to all 

subcontractors. The effect of this clause 

is to create a non-disclosure agreement 

within the contract, eliminating the 

need for separate non-disclosure 

agreements between contractors. Since 

the clause at 1852.227–73, Handling and 

Protection of Restricted Information, 

functions as a contractual nondisclosure agreement, the clause may 

also be used, in conjunction with other 

appropriate measures, as part of a plan 

to mitigate organizational conflicts of 

interest resulting from unfair access to 

restricted information. This clause alone 

does not create an adequate firewall to 

mitigate OCIs resulting from unfair 

access to data. 

This proposed rule also removes 

clause 1852.237–73, Release of Sensitive 

Information, and adds a new clause 

1852.227–74, Release of Restricted 

Information, in its place. Consistent 

with 1852.227–73, this clause includes 

the same definition of ‘‘restricted 

information.’’ Through this clause 

offerors and contractors agree that 

NASA may release their restricted 

information to other contractors in 

accordance with the procedures 

prescribed in 1827.405–70 and subject 

to the safeguards and protections 

delineated in the clause at 1852.227–73, 

Handling and Protection of Restricted 

Information. The clause at 1852.227–74 

requires offerors and contractors to 

identify information they claim to be 

restricted information provided to the 

Government in the course of submitting 

proposals for a contract and performing 

a contract by suitably marking such 

restricted information with a legend 

indicating that use and disclosure of the 

information is restricted. 

B. Regulatory Flexibility Act 

This rule is not expected to have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq., 

because the proposed rule only clarifies 

existing NFS requirements. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L. 96–511) does not apply because the 

changes to the NFS do not impose 

information collection requirements that 

require the approval of OMB under 44 

U.S.C. 3501, et seq. 

William P. McNally, 

Assistant Administrator for Procurement. 

This proposed rule was subject to 

Office of Management and Budget 

review under Executive Order 12866, 

dated September 30, 1993. 

Accordingly, 48 CFR parts 1809, 1827, 

1837, and 1852 are proposed to be 

amended as follows: 

1. The authority citation for 48 CFR 

parts 1809, 1827, 1837, and 1852 

continues to read as follows: 

Authority: 42 U.S.C. 2473(c)(1). 

PART 1809—CONTRACTOR 

QUALIFICATIONS 

2. Revise section 1809.505–4 to read 

as follows: 

1809.505–4 Obtaining access to restricted 

information. 

(b) In accordance with FAR 9.503, the 

Assistant Administrator for 

Procurement has determined that it 

would not be in the Government’s 


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interests for NASA to comply strictly 

with FAR 9.505–4(b) when acquiring 

services to support mission activities 

and management and administrative 

functions. The Assistant Administrator 

for Procurement has, therefore, waived 

the requirement that before gaining 

access to other companies’ restricted 

information (see 1827.405–70) 

contractors must enter specific 

agreements with each of those other 

companies to protect their information 

from unauthorized use or disclosure. 

Accordingly, NASA will not require 

contractors and subcontractors and their 

employees in procurements that support 

NASA mission activities and 

management and administrative 

functions to enter into separate, 

interrelated third party agreements to 

protect restricted information from 

unauthorized use or disclosure. As an 

alternative to numerous, separate third 

party agreements, 1827.405–70 

prescribes detailed policy and 

procedures to protect contractors from 

unauthorized use or disclosure of their 

restricted information. Nothing in this 

section waives the requirements of FAR 

37.204 and 1837.204. 

PART 1827—PATENTS, DATA, AND 

COPYRIGHTS 

3. Add sections 1827.405–70, 

1827.405–71, and 1827.405–72 to read 

as follows: 

1827.405–70 Providing contractors access 

to restricted information. 

(a)(1) As used in this subpart, 

‘‘restricted information’’ means recorded 

information, regardless of form or the 

media on which it may be recorded, the 

use and dissemination of which is 

restricted, and includes: 

(i) Limited rights data; 

(ii) Restricted computer software; 

(iii) Information incidental to contract 

administration, such as financial, 

administrative, cost or pricing, or 

management information that embody 

trade secrets or are commercial or 

financial and confidential or privileged; 

and 

(iv) Information designated by NASA 

as Sensitive But Unclassified (SBU). 

(2) As used in this subpart, ‘‘requiring 

organization’’ refers to the NASA 

organizational element or activity that 

requires specified services or products 

to be provided under a contract. 

(b)(1) In performance of NASA 

contracts, contractors, and their 

subcontractors, may require access to 

restricted information in the 

Government’s possession, which may be 

entitled to protection from unauthorized 

use or disclosure. The clause at 

1852.227–73, Handling and Protection 

of Restricted Information, will be used 

in contracts to ensure that restricted 

information is properly protected from 

unauthorized use or disclosure. 

(2) Since the clause at 1852.227–73, 

Handling and Protection of Restricted 

Information, functions as a contractual 

non-disclosure agreement, the clause 

may also be used, as deemed 

appropriate and in conjunction with 

other appropriate measures as 

necessary, to mitigate organizational 

conflicts of interest resulting from 

unequal access to restricted information. 

(3) After contract award, the requiring 

organization shall review any 

contractor’s requests for access to 

restricted information to determine 

whether the access is necessary to 

performance of the contract and 

whether the information requested is 

considered ‘‘restricted’’ as defined in 

paragraph (a)(1) of this section, and 

shall notify the Contracting Officer of 

such determination. If it is determined 

that performance will necessitate access 

to restricted information and the clause 

at 1852.227–73 is in the contract, the 

restricted information may be provided 

to the contractor. If the clause at 

1852.227–73 was not initially included 

in the contract, the contracting officer 

shall add the clause before restricted 

information is provided to the 

contractor. 

(4) Access to restricted information 

that comprises third party limited rights 

data or restricted computer software 

will be provided to contractors only as 

authorized by the clause at 52.227–14, 

Rights in Data—General, Alternates II 

and III (see also FAR 27.402(c) and (d), 

27.409(b)(3) and (b)(4), and 1827.409(c) 

and (d) for authorization to revise 

Limited Rights and Restricted Rights 

notices to provide the Government 

greater rights in limited rights data and 

restricted computer software). All other 

restricted information will be provided 

to contractors in compliance with the 

clause at 1852.227–74, Release of 

Restricted Information. All restricted 

information provided to a contractor 

will be handled by the contractor in 

compliance with 1852.227–73, Handling 

and Protection of Restricted 

Information. 

(5)(i) The clause at 1852.227–73 

provides restrictions on use and 

disclosure of restricted information 

provided by the Government to the 

contractor if the information is suitably 

marked with a legend indicating that its 

use and disclosure is restricted or the 

information is specifically identified in 

the contract or in writing by the 

Contracting Officer as being subject to 

the clause. This includes information 

incidental to contract administration, 

such as financial, administrative, cost or 

pricing, or management information that 

embodies trade secrets or are 

commercial or financial and 

confidential or privileged, as well as 

information designated by NASA as 

Sensitive But Unclassified (SBU). 

(ii) Additionally, paragraph (d)(1) of 

the clause at 52.227–14, Rights in 

Data—General, permits the Government 

to restrict a contractor’s right to use, 

release to others, reproduce, distribute, 

or publish any data first produced or 

specifically used by the contractor in 

the performance of a contract provided 

such restriction is expressly set forth in 

the contract. Pursuant to this authority, 

the clause at 1852.227–73 provides 

restrictions on use and disclosure of 

third party limited rights data and 

restricted computer software that may 

be provided by the Government to its 

contactors. 

(c) When a contractor is given access 

to restricted information in performance 

of a contract and such restricted 

information is either marked with a 

restrictive legend indicating that use 

and disclosure of the information is 

restricted or is specifically identified in 

the contract or in writing by the 

Contracting Officer as being subject to 

restrictions, the contractor, and its 

subcontractors given access to such 

restricted information, shall follow the 

steps outlined in the clause at 

1852.227–73, Handling and Protection 

of Restricted Information, to protect the 

restricted information from 

unauthorized use or disclosure. 

(d) If the contractor will be operating 

an information technology system for 

NASA that contains restricted 

information, the operating contract shall 

include the clause at 1852.204–76, 

Security Requirements for Unclassified 

Information Technology Resources, 

which requires the implementation of 

an Information Technology Security 

Plan to protect information processed, 

stored, or transmitted from 

unauthorized access, alteration, 

disclosure, or use. 

(e) The contracting officer may require 

the contractor to demonstrate how it is 

complying with the clause at 1852.227– 

73, Handling and Protection of 

Restricted Information, to protect from 

unauthorized use or disclosure any 

restricted information provided under 

the contract that is either marked with 

a restrictive legend indicating that use 

and disclosure of the information is 

restricted or is specifically identified in 

the contract or in writing by the 

Contracting Officer as being subject to 

restrictions. 


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1827.405–71 Release of contractors’ 

restricted information. 

Pursuant to the clause at 1852.227–74, 

Release of Restricted Information, 

offerors and contractors agree that 

NASA may release their restricted 

information to other contractors in 

accordance with the procedures 

prescribed in 1827.405–70 and subject 

to the safeguards and protections 

delineated in the clause at 1852.227–73, 

Handling and Protection of Restricted 

Information. As required by the clause 

at 1852.227–74, contractors must 

identify information they claim to be 

restricted information submitted in the 

course of performing a contract by 

suitably marking such restricted 

information with a legend indicating 

that use and disclosure of the 

information is restricted. The 

contracting officer shall evaluate all 

contractor claims regarding such 

restricted information in deciding how 

NASA should respond to requests from 

requiring organizations and contractors 

for access to restricted information. 

1827.405–72 NASA contract clauses. 

(a) The contracting officer shall insert 

the clause at 1852.227–73, Handling and 

Protection of Restricted Information, in 

all solicitations, contracts, and basic 

ordering agreements, unless the 

contracting officer determines that 

contract performance will not require 

access to restricted information. 

(b) The contracting officer shall insert 

the clause at 1852.227–74, Release of 

Restricted Information, in all 

solicitations, contracts, and basic 

ordering agreements. 

PART 1837—SERVICE CONTRACTING 

1837.203–70, 1837.203–71, and 1837.203–72 

[Removed] 

4. Remove sections 1837.203–70, 

1837.203–71, and 1837.203–72. 

PART 1852—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

5. Add sections 1852.227–73 and 

1852.227–74 to read as follows: 

1852.227–73 Handling and Protection of 

Restricted Information. 

As prescribed in 1827.405–72(a), 

insert the following clause: 

HANDLING AND PROTECTION OF 

RESTRICTED INFORMATION 

(XX/XX) 

(a) Definition. ‘‘Restricted information,’’ as 

used in this clause, means recorded 

information, regardless of form or the media 

on which it may be recorded, the use and 

dissemination of which is restricted, and 

includes: 

(1) Limited rights data; 

(2) Restricted computer software; 

(3) Information incidental to contract 

administration, such as financial, 

administrative, cost or pricing, or 

management information that embody trade 

secrets or are commercial or financial and 

confidential or privileged; and 

(4) Information designated by NASA as 

Sensitive But Unclassified (SBU). 

(b) Restrictions on use and disclosure of 

restricted information. With regard to any 

restricted information to which the 

Contractor is given access in performance of 

this contract that is either marked with a 

restrictive legend indicating that use and 

disclosure of the information is restricted or 

is specifically identified in this contract or in 

writing by the Contracting Officer as being 

subject to this clause, the Contractor agrees 

to: 

(1) Use such restricted information only for 

the purposes of performing the services 

specified in this contract, and not 

appropriate the restricted information to its 

own or another’s use; 

(2) Safeguard the restricted information 

from unauthorized use and disclosure; 

(3) Allow access to the restricted 

information only to those employees and 

subcontractors that need it to perform 

services under this contract; 

(4) Preclude access and disclosure of the 

restricted information to persons and entities 

outside of the Contractor’s or its 

subcontractor’s organization(s); 

(5) Inform employees who may require 

access to the restricted information about 

obligations to use it only to perform the 

services specified in this contract and to 

safeguard it from unauthorized use and 

disclosure; 

(6) Require that each employee that has 

access to restricted information complies 

with the obligations regarding restricted 

information included in this clause; and 

(7) Return or dispose of the restricted 

information, as NASA may direct, when the 

restricted information is no longer needed for 

performance of work under this contract. 

(c) Exceptions. 

(1) The obligations and prohibitions of 

paragraph (b) do not apply to restricted 

information which the Contractor can 

demonstrate to the Contracting Officer— 

(i) Was publicly available at the time of 

receipt by the Contractor or thereafter 

becomes publicly available without breach of 

this contract; 

(ii) Was known to, in the possession of, or 

developed by or for the Contractor 

independently of the restricted information 

received from the Government and such 

knowledge, possession, or independent 

development can be shown; 

(iii) Was received by the Contractor from 

a party other than the owner of the restricted 

information, who has the authority to release 

the restricted information and did not require 

the Contractor to hold it in confidence; or 

(iv) Is released to or becomes available to 

a third party on an unrestricted basis from 

the owner of the restricted information, 

someone acting under the owner’s control, or 

with the prior written approval of the owner. 

(2) Under a valid order of a court or 

Government agency, the Contractor may 

release restricted information to which the 

Contractor is given access in performance of 

this contract, provided that the Contractor 

provides prior written notice to the owner of 

the restricted information of such obligation 

and the opportunity to oppose such 

disclosure. The Contractor shall provide a 

copy of the notice to the Contracting Officer. 

(d) In the event that restricted information 

provided to the Contractor includes a 

restrictive legend that the Contractor deems 

to be ambiguous or unauthorized, the 

Contractor must notify the Contracting 

Officer of such condition. Notwithstanding 

such a notification, as long as the restrictive 

legend provides an indication that a 

restriction on use or disclosure was intended, 

the Contractor will treat the restricted 

information pursuant to the requirements of 

this clause unless otherwise directed in 

writing by the Contracting Officer or the 

owner of the restricted information. 

(e) Other contractual restrictions on 

restricted information. This clause is 

subordinate to all other contract clauses or 

requirements that specifically address the 

access, use, handling, protection or 

disclosure of information. If any restrictions 

or authorizations in this clause are 

inconsistent with a requirement of any other 

clause of this contract, the requirement of the 

other clause shall take precedence over the 

requirement of this clause. Third party 

limited rights data and restricted computer 

software will be provided under this contract 

only as authorized by the clause at 52.227– 

14, Rights in Data—General, Alternates II and 

III (as modified by 1852.227–14, if 

applicable). If the Contractor believes there is 

a conflict between this clause and another 

clause in this contract regarding the access, 

use, handling, protection or disclosure of 

restricted information, the Contractor must 

consult with the Contracting Officer before 

taking subsequent actions under the other 

clause. 

(f) The Contracting Officer may require the 

Contractor to demonstrate how it is 

complying with this Handling and Protection 

of Restricted Information clause. 

(g) Remedies. Recognizing that this 

contract establishes a high standard of 

accountability and trust, the Contractor’s 

breach of any of the conditions of this clause 

may provide grounds for the Government 

to— 

(1) Disqualify the Contractor from 

subsequent related contractual efforts; 

(2) Debar the Contractor for serious 

misconduct affecting present responsibility; 

(3) Terminate the Contractor for default; or 

(4) Pursue such other remedies as may be 

permitted by law, regulation, or this contract. 

(h) Subcontracts. The Contractor shall 

insert, or require the insertion of, this clause, 

including this paragraph (h), suitably 

modified to reflect the relationship of the 

parties, in all subcontracts (regardless of tier). 

(End of clause) 

1852.227–74 Release of restricted 

information. 

As prescribed in 1827.405–72(b), 

insert the following clause: 


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RELEASE OF RESTRICTED INFORMATION 

(XX/XX) 

(a) Definition. ‘‘Restricted information,’’ as 

used in this clause, means recorded 

information, regardless of form or the media 

on which it may be recorded, the use and 

dissemination of which is restricted, and 

includes: 

(1) Limited rights data; 

(2) Restricted computer software; 

(3) Information incidental to contract 

administration, such as financial, 

administrative, cost or pricing, or 

management information that embody trade 

secrets or are commercial or financial and 

confidential or privileged; and 

(4) Information designated by NASA as 

Sensitive But Unclassified (SBU). 

(b) In performance of NASA contracts, 

contractors, as well as their subcontractors 

and their individual employees, may require 

access to restricted information in the 

Government’s possession. The Contractor 

agrees that, where needed for the 

performance of a NASA contract, NASA may 

release to its contractors, and their 

subcontractors, restricted information 

delivered during the course of this contract. 

Additionally, offerors agree that restricted 

information submitted with their proposals 

may be provided to NASA service contractors 

that assist NASA with contract closeout. If 

suitably marked with a legend indicating that 

use and disclosure of restricted information 

is restricted, such restricted information will 

be subject to the enumerated protections 

mandated by this clause and the clause at 

1852.227–73, Handling and Protection of 

Restricted Information. The Contractor’s 

limited rights data and restricted computer 

software will be provided to other NASA 

contractors or subcontractors only as 

authorized by the clause at 52.227–14, Rights 

in Data—General, Alternates II and III (as 

modified by 1852–227–14, if applicable). 

(c) For purposes of marking such restricted 

information, the Contractor may, in addition 

to any other notice or legend otherwise 

required (e.g., notices required under the 

clause at 52.227–14, Rights in Data—General, 

Alternates II and III), use a notice similar to 

the following: 

Mark the title page with the following 

legend: 

This document was submitted by [insert 

submitter’s name] in performance Contract 

No. [insert contract no.]. Submitter asserts 

that this document contains restricted 

information that embodies trade secrets or is 

commercial or financial and privileged or 

confidential. Such information shall not be 

disclosed outside of NASA except in 

accordance with the clause at NFS 1852.227– 

73, Handling and Protection of Restricted 

Information. This restriction does not limit 

the Government’s right to use this restricted 

information if it is obtained from another 

source without restriction. The restricted 

information subject to this notice is 

contained in pages [insert page numbers or 

other identification of pages]. 

Mark each page containing restricted 

information the Contractor wishes to restrict 

with the following legend: 

This page contains restricted information 

and is subject to the restriction on the title 

page of this document. 

(d) The Contracting Officer shall evaluate 

restricted information marked in accordance 

with paragraph (c) of this clause. Unless the 

Contracting Officer decides, with the advice 

of Center legal counsel, that reasonable 

grounds exist to challenge the markings, 

NASA and its contractors and subcontractors, 

shall comply with all of the safeguards 

contained in paragraph (e) of this clause and 

the clause at 1852.227–73, Handling and 

Protection of Restricted Information. 

(e) To receive access to restricted 

information needed to assist NASA in 

accomplishing NASA mission activities and 

management and administrative functions, 

the Contractor or subcontractor must be 

operating under a contract that contains the 

clause at 1852.227–73, Handling and 

Protection of Restricted Information, which 

obligates the Contractor or subcontractor, 

with respect to restricted information marked 

with a legend indicating that use and 

disclosure of the information is restricted, to 

do the following: 

(1) Use such restricted information only for 

the purpose of performing the services 

specified in its contract, and not appropriate 

the restricted information to its own or 

another’s use; 

(2) Safeguard such restricted information 

from unauthorized use and disclosure; 

(3) Allow access to such restricted 

information only to those employees and 

subcontractors that need it to perform 

services under the contract; 

(4) Preclude access and disclosure of such 

restricted information to persons and entities 

outside of the contractor’s or its 

subcontractor’s organization(s); 

(5) Inform employees who may require 

access to such restricted information about 

obligations to use it only to perform the 

services specified in its contract and to 

safeguard it from unauthorized use and 

disclosure; 

(6) Require that each employee that has 

access to restricted information complies 

with the obligations regarding restricted 

information included in this clause; and 

(7) Return or dispose of such restricted 

information, as NASA may direct, when the 

restricted information is no longer needed for 

performance of work under the contract. 

(f) Exceptions. The obligations and 

prohibitions of paragraph (e) of this clause do 

not apply to restricted information which the 

receiving contractor can demonstrate to the 

Contracting Officer— 

(1) Was publicly available at the time of 

receipt by the receiving contractor or 

thereafter becomes publicly available without 

breach of the receiving contractor’s contract; 

(2) Was known to, in the possession of, or 

developed by or for the receiving contractor 

independently of the restricted information 

received from the Government and such 

knowledge, possession, or independent 

development can be shown; 

(3) Was received by the receiving 

contractor from a party other than the owner 

of the restricted information, who has the 

authority to release the restricted information 

and did not require the receiving contractor 

to hold it in confidence; 

(4) Is released to or becomes available to 

a third party on an unrestricted basis from 

the owner of the restricted information, 

someone acting under the owner’s control, or 

with the prior written approval of the owner; 

or 

(5) Is required to be released under a valid 

order of a court or Government agency, 

provided that the Contractor provides prior 

written notice to the owner of the restricted 

information of such obligation and the 

opportunity to oppose such disclosure. 

(g) When a contractor will have primary 

responsibility for operating an information 

technology system for NASA that contains 

restricted information, the contractor’s 

contract shall also include the clause at 

1852.204–76, Security Requirements for 

Unclassified Information Technology 

Resources. The Security Requirements clause 

requires the contractor to implement an 

Information Technology Security Plan to 

protect information processed, stored, or 

transmitted from unauthorized access, 

alteration, disclosure, or use. Contractor 

personnel requiring privileged access or 

limited privileged access to these information 

technology systems are subject to screening 

using the standard National Agency Check 

(NAC) forms appropriate to the level of risk 

for adverse impact to NASA missions. The 

Contracting Officer may allow the Contractor 

to conduct its own screening, provided the 

contractor employs substantially equivalent 

screening procedures. 

(h) This clause does not affect NASA’s 

responsibilities under the Freedom of 

Information Act. 

(i) Subcontracts. The Contractor shall 

insert, or require the insertion of, this clause, 

including this paragraph (i), suitably 

modified to reflect the relationship of the 

parties, in all subcontracts (regardless of tier). 

(End of clause) 

1852.237–72 and 1852.237–73 [Removed] 

6. Remove sections 1852.237–72 and 

1852.237–73. 

[FR Doc. 2010–4408 Filed 3–3–10; 8:45 am] 

BILLING CODE 7510–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

RIN 0648–AY32 

Fisheries of the Caribbean, Gulf of 

Mexico and South Atlantic; 

Comprehensive Ecosystem-Based 

Amendment 1 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of availability (NOA); 

request for comments. 

SUMMARY: The South Atlantic Fishery 

Management Council (Council) has 


sroberts on DSKD5P82C1PROD with PROPOSALS