64408 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

and recordkeeping requirements, and

Toxic chemicals.

Dated: December 8, 1995.

William H. Sanders III,

Director, Office of Pollution Prevention and

Toxics.

[FR Doc. 95–30601 Filed 12–14–95; 8:45 am]

BILLING CODE 6560–50–F

48 CFR Parts 1535 and 1552

[FRL–5332–3]

Acquisition Regulation; Confidential

Business Information

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) is proposing to revise its

acquisition regulation by revising both

the prescription for use of solicitation

provisions and contract clauses

regarding collection, use, access,

treatment, and disclosure of confidential

business information (CBI), and adding

solicitation provisions and contract

clauses on CBI.

DATES: Written comments should be

submitted to the contact listed below

not later than February 13, 1996.

ADDRESSES: Comments and data may

also be submitted electronically by

sending electronic mail (e-mail) to:

Senzel.Louise@epamail.epa.gov.

Electronic comments must be submitted

as an ASCII file avoiding the use of

special characters and any form of

encryption. Comments and data will

also be accepted on disks in

WordPerfect in 5.1 format or ASCII file

format. No Confidential Business

Information (CBI) should be submitted

through e-mail. Electronic comments on

this proposed rule may be filed online

at many Federal Depository Libraries.

FOR FURTHER INFORMATION CONTACT:

Louise Senzel, Environmental

Protection Agency, Office of Acquisition

Management (3802F), 401 M Street, SW,

Washington, D.C. 20460. Telephone:

(202) 260–6204.

SUPPLEMENTARY INFORMATION:

A. Executive Order 12866

The proposed rule is not a significant

regulatory action for the purposes of

Executive Order 12866; therefore, no

review is required by the Office of

Information and Regulatory Affairs.

B. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because this proposed rule

does not contain information collection

requirements that require the approval

of OMB under the Paperwork Reduction

Act of 1980 (44 U.S.C. 3501 et seq.)

C. Regulatory Flexibility Act

The EPA certifies that this proposed

rule does not exert a significant

economic impact on a substantial

number of small entities. The

requirements to contractors under the

proposed rule impose no reporting,

record-keeping, or any compliance

costs.

D. Unfunded Mandates

This proposed rule will not impose

unfunded mandates on state or local

entities, or others.

The provisions of this regulation are

issued under 5 U.S.C. 301; 40 U.S.C.

486(c).

List of Subjects in 48 CFR Parts 1535

and 1552

Government procurement.

Therefore, Chapter 15 of title 48, Code

of Federal Regulations is proposed to be

amended as set forth below:

1. The authority citation for parts

1535 and 1552 continue to read as

follows:

Authority: Sec. 205(c), 63 stat. 390, as

amended, 40 U.S.C. 486(c).

2. Section 1535.007 is revised to read

as follows:

1535.007 Solicitations.

(a) Contracting Officers shall insert

the following provisions in all

solicitations when the Contracting

Officer has determined that EPA may

furnish the contractor with confidential

business information which EPA has

obtained from third parties under the

Federal Insecticide, Fungicide and

Rodenticide Act (7 U.S.C. 136 et seq.).

(1) 1552.235–72 Control and Security

of Federal Insecticide, Fungicide, and

Rodenticide Act Confidential Business

Information; and

(2) 1552.235–73 Access to Federal

Insecticide, Fungicide, and Rodenticide

Act Confidential Business Information.

(b) Contracting Officers shall insert

the following provisions in all

solicitations when the Contracting

Officer has determined that EPA may

furnish the contractor with confidential

business information which EPA has

obtained from third parties under the

Toxic Substances Control Act (15 U.S.C.

2601 et seq.)

(1) 1552.235–74 Control and Security

of Toxic Substances Control Act

Confidential Business Information; and

(2) 1552.235–75 Access to Toxic

Substances Control Act Confidential

Business Information.

3. Subsection 1535.007–70 is

amended by revising paragraphs (b) and

(c) and adding paragraph (d) through (f)

to read as follows:

1535.007–70 Contract clauses.

(a) * * *

(b) The Contracting Officer shall

insert the clause at 1552.235–71,

Treatment of Confidential Business

Information, in solicitations and

contracts when the Contracting Officer

has determined that in the performance

of the contract, EPA may furnish

confidential business information to the

contractor obtained from third parties

under the Clean Air Act (42 U.S.C. 7401

et seq.), the Federal Water Pollution

Control Act (33 U.S.C. 1251 et seq.), the

Safe Drinking Water Act (42 U.S.C. 300f

et seq.), the Federal Food, Drug, and

Cosmetic Act (21 U.S.C. 301 et seq.), the

Resource Conservation and Recovery

Act (42 U.S.C. 301 et seq.), the Federal

Insecticide, Fungicide and Rodenticide

Act (7 U.S.C. 136 et seq.), the

Comprehensive Environmental

Response, Compensation, and Liability

Act (42 U.S.C. 9601 et seq.), and

provision 1552.235–70, Release of

Contractor Confidential Business

Information. EPA regulations on

confidentiality of business information

in 40 CFR part 2, subpart B, require that

the contractor agree to the clause

entitled ‘‘Treatment of Confidential

Business Information’’ before any

confidential business information may

be furnished to the contractor.

(c) The Contracting Officer shall insert

the clause at 1552.235–76, Treatment of

Confidential Business Information, in

solicitations and contracts when the

Contracting Officer has determined that

in the performance of the contract, EPA

may furnish the contractor with

confidential business information

obtained from third parties under the

Toxic Substances Control Act (15 U.S.C.

2601 et seq.). EPA regulations on

confidentiality of business information

in 40 CFR part 2, subpart B, require that

the contractor agree to the clause

entitled ‘‘Treatment of Confidential

Business Information’’ before any

confidential business information may

be furnished to the contractor.

(d) The Contracting Officer shall

insert the clause at 1552.235–77 Data

Security for Federal Insecticide,

Fungicide, Rodenticide Act Confidential

Business Information, when the contract

involves access to confidential business

information related to the Federal

Insecticide, Fungicide, Rodenticide Act

and the Treatment of Confidential

Business Information clause (1552.235–

71) and the Screening Business

Information for Claims of

Confidentiality clause (1552.235–70) are

included.
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64409

(e) The Contracting Officer shall insert

the clause at 1552.235–78 Data Security

for Toxic Substances Control Act

Confidential Business Information,

when the contract involves access to

confidential business information

related to the Toxic Substances Control

Act and the Treatment of Confidential

Business Information clause (1552.235–

76) and Screening Business Information

for Claims of Confidentiality clause

(1552.235–70) are included.

(f) Contracting Officers shall insert the

clause 1552.235–79 Release of

Contractor Confidential Business

Information in all solicitations and

contracts in order to authorize the

Agency to release confidential business

information under certain

circumstances.

4. Subpart 1552.2, is amended by

revising section 1552.235–72, and

adding sections 1552.235–73 through

1552.235–79 to read as follows:

1552.235–72 Control and Security of

Federal Insecticide, Fungicide, Rodenticide

Act Confidential Business Information (XXX

1995).

As prescribed in 1535.007(a), insert

the following provision:

Control and Security of Federal Insecticide,

Fungicide, Rodenticide Act Confidential

Business Information (XXX 1995)

The offeror certifies that—

—The Contractor and its employees have

read and are familiar with the requirements

for the control and security of Federal

Insecticide, Fungicide, Rodenticide Act

confidential business information

contained in the manual entitled ‘‘Federal

Insecticide, Fungicide, Rodenticide Act

Information Security Manual’’. (See also

1552.235–77 elsewhere in this solicitation.)

(End of Provision)

1552.235–73 Access to Federal

Insecticide, Fungicide, Rodenticide Act

Confidential Business Information (XXX

1995).

As prescribed in 1535.007(a), insert

the following provision:

Access to Federal Insecticide, Fungicide,

Rodenticide Act Confidential Business

Information (XXX 1995)

In order to perform duties under the

contract, the Contractor will need to be

authorized for access to Federal Insecticide,

Fungicide, Rodenticide Act (FIFRA)

confidential business information (CBI). The

Contractor and all of its employees handling

CBI while working under the contract will be

required to follow the procedures contained

in the security manual entitled ‘‘FIFRA

Information Security Manual’’. These

procedures include applying for FIFRA CBI

access authorization for each individual

working under the contract who will have

access to FIFRA CBI, execution of

confidentiality agreements, and designation

by the Contractor of an individual to serve as

a Document Control Officer. The Contractor

will be required to abide by those clauses

contained in EPAAR 1552.235–70, 1552.235–

71, and 1552.235–77 that are appropriate to

the activities set forth in the contract.

Until EPA has approved the Contractor’s

security plan, the Contractor may not be

authorized for FIFRA CBI access away from

EPA facilities.

(End of Provision)

1552.235–74 Control and Security of Toxic

Substances Control Act Confidential

Business Information (XXX 1995).

As prescribed in 1535.007(b), insert

the following provision:

Control and Security of Toxic Substances

Control Act Confidential Business

Information (XXX 1995)

The offeror certifies that—

—The Contractor and its employees have

read and are familiar with the requirements

for the control and security of Toxic

Substances Control Act confidential

business information contained in the

manual entitled ‘‘Toxic Substances Control

Act Confidential Business Information

Security Manual’’. (See also 1552.235–78

elsewhere in this solicitation.)

(End of Provision)

1552.235–75 Access to Toxic Substances

Control Act Confidential Business

Information (XXX 1995).

As prescribed in 1535.007(b), insert

the following provision:

Access to Toxic Substances Control Act

Confidential Business Information (XXX

1995)

In order to perform duties under the

contract, the Contractor will need to be

authorized for access to Toxic Substances

Control Act (TSCA) confidential business

information (CBI). The Contractor and all of

its employees handling CBI while working

under the contract will be required to follow

the procedures contained in the security

manual entitled ‘‘TSCA Confidential

Business Information Security Manual’’.

These procedures include applying for TSCA

CBI access authorization for each individual

working under the contract who will have

access to TSCA CBI, execution of

confidentiality agreements, and designation

by the Contractor of an individual to serve as

a Document Control Officer. The Contractor

will be required to abide by those clauses

contained in EPAAR 1552.235–70, 1552.235–

71, and 1552.235–78 that are appropriate to

the activities set forth in the contract.

Until EPA has inspected and approved the

Contractor’s facilities, the Contractor may not

be authorized for TSCA CBI access away

from EPA facilities.

(End of Provision)

1552.235–76 Treatment of Confidential

Business Information (XXX 1995).

As prescribed in 1535.007–70(c),

insert the following clause:

Treatment of Confidential Business

Information (XXX 1995)

(a) The Project Officer (PO) or his/her

designee, after a written determination by the

appropriate program office, may disclose

confidential business information (CBI) to the

Contractor necessary to carry out the work

required under this contract. The Contractor

agrees to use the CBI only under the

following conditions:

(1) The Contractor and Contractor’s

employees shall (i) use the CBI only for the

purposes of carrying out the work required

by the contract; (ii) not disclose the

information to anyone other than properly

cleared EPA employees without the prior

written approval of the Assistant General

Counsel for Information Law or his/her

designee; and (iii) return the CBI to the PO

or his/her designee, whenever the

information is no longer required by the

Contractor for performance of the work

required by the contract, or upon completion

of the contract.

(2) The Contractor shall obtain a written

agreement to honor the above limitations

from each of the Contractor’s employees who

will have access to the information before the

employee is allowed access.

(3) The Contractor agrees that these

contract conditions concerning the use and

disclosure of CBI are included for the benefit

of, and shall be enforceable by, both EPA and

any affected businesses having a proprietary

interest in the information.

(4) The Contractor shall not use any CBI

supplied by EPA or obtained during

performance hereunder to compete with any

business to which the CBI relates.

(b) The Contractor agrees to obtain the

written consent of the CO, after a written

determination by the appropriate program

office, prior to entering into any subcontract

that will involve the disclosure of CBI by the

Contractor to the subcontractor. The

Contractor agrees to include this clause,

including this paragraph (b), in all

subcontracts awarded pursuant to this

contract that require the furnishing of CBI to

the subcontractor.

(End of Clause)

1552.235–77 Data Security for Federal

Insecticide, Fungicide, Rodenticide Act

Confidential Business Information (XXX

1995).

As prescribed in 1535.007–70(d), insert the

following clause:

Data Security for Federal Insecticide,

Fungicide, Rodenticide Act Confidential

Business Information (XXX 1995)

The Contractor shall handle Federal

Insecticide, Fungicide, Rodenticide Act

(FIFRA) confidential business information

(CBI) in accordance with the contract clause

entitled ‘‘Treatment of Confidential Business

Information’’ and ‘‘Screening Business

Information for Claims of Confidentiality,’’

the provisions set forth below, and the

Contractor’s approved detailed security plan.

(a) The Project Officer (PO) or his/her

designee, after a written determination by the

appropriate program office, may disclose

FIFRA CBI to the contractor necessary to

carry out the work required under this

contract. The Contractor shall protect all

FIFRA CBI to which it has access (including
64410 Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules

CBI used in its computer operations) in

accordance with the following requirements:

(1) The Contractor and Contractor’s

employees shall follow the security

procedures set forth in the FIFRA

Information Security Manual. The manual

may be obtained from the Project Officer (PO)

or the Chief, Information Services Branch

(ISB), Program Management and Support

Division, Office of Pesticide Programs (OPP)

(H7502C), U.S. Environmental Protection

Agency, 401 M Street, SW, Washington, DC

20460.

(2) The Contractor and Contractor’s

employees shall follow the security

procedures set forth in the Contractor’s

security plan(s) approved by EPA.

(3) Prior to receipt of FIFRA CBI by the

Contractor, the Contractor shall submit a

certification statement to the Chief of the ISB,

with a copy to the Contracting Officer (CO),

certifying that all employees who will be

cleared for access to FIFRA CBI have been

briefed on the handling, control and security

requirements set forth in the FIFRA

Information Security Manual.

(4) The Contractor Document Control

Officer (DCO) shall obtain a signed copy of

the FIFRA ‘‘Contractor Employee

Confidentiality Agreement’’ from each of the

Contractor’s employees who will have access

to the information before the employee is

allowed access.

(b) The Contractor agrees that these

requirements concerning protection of FIFRA

CBI are included for the benefit of, and shall

be enforceable by, both EPA and any affected

business having a proprietary interest in the

information.

(c) The Contractor understands that CBI

obtained by EPA under FIFRA may not be

disclosed except as authorized by the Act,

and that any unauthorized disclosure by the

Contractor or the Contractor’s employees may

subject the Contractor and the Contractor’s

employees to the criminal penalties specified

in FIFRA (7 U.S.C. 136h(f)). For purposes of

this contract, the only disclosures that EPA

authorizes the Contractor to make are those

set forth in the clause entitled ‘‘Treatment of

Confidential Business Information.’’

(d) The Contractor agrees to include the

provisions of this clause, including this

paragraph (d), in all subcontracts awarded

pursuant to this contract that require the

furnishing of CBI to the subcontractor.

(e) At the request of EPA or at the end of

the contract, the Contractor shall return to

the EPA PO or his/her designee all

documents, logs, and magnetic media which

contain FIFRA CBI. In addition, each

Contractor employee who has received

FIFRA CBI clearance will sign a

‘‘Confidentiality Agreement for Contractor

Employees Upon Relinquishing FIFRA CBI

Access Authority’’. The Contractor DCO will

also forward those agreements to the EPA PO

or his/her designee, with a copy to the CO,

at the end of the contract.

(f) If, subsequent to the date of this

contract, the Government changes the

security requirements, the CO shall equitably

adjust affected provisions of this contract, in

accordance with the ‘‘Changes’’ clause when:

(1) The Contractor submits a timely written

request for an equitable adjustment; and

(2) The facts warrant an equitable

adjustment.

(End of Clause)

1552.235–78 Data Security for Toxic

Substances Control Act Confidential

Business Information (XXX 1995).

As prescribed in 1535.007–70(e),

insert the following clause:

Data Security for Toxic Substances Control

Act Confidential Business Information (XXX

1995)

The Contractor shall handle Toxic

Substances Control Act (TSCA) confidential

business information (CBI) in accordance

with the contract clause entitled ‘‘Treatment

of Confidential Business Information’’ and

‘‘Screening Business Information for Claims

of Confidentiality.’’

(a) The Project Officer (PO) or his/her

designee, after a written determination by the

appropriate program office, may disclose

TSCA CBI to the contractor necessary to carry

out the work required under this contract.

The Contractor shall protect all TSCA CBI to

which it has access (including CBI used in

its computer operations) in accordance with

the following requirements:

(1) The Contractor and Contractor’s

employees shall follow the security

procedures set forth in the TSCA CBI

Security Manual. The manual may be

obtained from the Director, Information

Management Division (IMD), Office of

Pollution Prevention and Toxics (OPPT), U.S.

Environmental Protection Agency (EPA), 401

M Street, SW, Washington, DC 20460. Prior

to receipt of TSCA CBI by the Contractor, the

Contractor shall submit a certification

statement to the Director of the EPA OPPT/

Office of Program Management and

Evaluation, with a copy to the Contracting

Officer (CO), certifying that all employees

who will be cleared for access to TSCA CBI

have been briefed on the handling, control,

and security requirements set forth in the

TSCA CBI Security Manual.

(2) The Contractor shall permit access to

and inspection of the Contractor’s facilities in

use under this contract by representatives of

EPA’s Assistant Administrator for

Administration and Resources Management,

and the TSCA Security Staff in the OPPT, or

by the EPA Project Officer.

(3) The Contractor Document Control

Officer (DCO) shall obtain a signed copy of

EPA Form 7740–6, ‘‘TSCA CBI Access

Request, Agreement, and Approval’’ from

each of the Contractor’s employees who will

have access to the information before the

employee is allowed access. In addition, the

Contractor shall obtain from each employee

who will be cleared for TSCA CBI access all

information required by EPA or the U.S.

Office of Personnel Management for EPA to

conduct a Minimum Background

Investigation.

(b) The Contractor agrees that these

requirements concerning protection of TSCA

CBI are included for the benefit of, and shall

be enforceable by, both EPA and any affected

business having a proprietary interest in the

information.

(c) The Contractor understands that CBI

obtained by EPA under TSCA may not be

disclosed except as authorized by the Act,

and that any unauthorized disclosure by the

Contractor or the Contractor’s employees may

subject the Contractor and the Contractor’s

employees to the criminal penalties specified

in TSCA (15 U.S.C. 2613(d)). For purposes of

this contract, the only disclosures that EPA

authorizes the Contractor to make are those

set forth in the clause entitled ‘‘Treatment of

Confidential Business Information.’’

(d) The Contractor agrees to include the

provisions of this clause, including this

paragraph (d), in all subcontracts awarded

pursuant to this contract that require the

furnishing of CBI to the subcontractor.

(e) At the request of EPA or at the end of

the contract, the Contractor shall return to

the EPA PO or his/her designee, all

documents, logs, and magnetic media which

contain TSCA CBI. In addition, each

Contractor employee who has received TSCA

CBI clearance will sign EPA Form 7740–18,

‘‘Confidentiality Agreement for Contractor

Employees Upon Relinquishing TSCA CBI

Access Authority’’. The Contractor DCO will

also forward those agreements to the EPA

OPPT/IMD, with a copy to the CO, at the end

of the contract.

(f) If, subsequent to the date of this

contract, the Government changes the

security requirements, the CO shall equitably

adjust affected provisions of this contract, in

accordance with the ‘‘Changes’’ clause when:

(1) The Contractor submits a timely written

request for an equitable adjustment; and

(2) The facts warrant an equitable

adjustment.

(End of Clause)

1552.235–79 Release of contractor

confidential business information (XXX

1995).

As prescribed in 1535.007–70(f),

insert the following clause:

Release of Contractor Confidential Business

Information (XXX 1995)

(a) The Environmental Protection Agency

(EPA) may find it necessary to release

information submitted by the Contractor

either in response to this solicitation or

pursuant to the provisions of this contract, to

individuals not employed by EPA. Business

information that is ordinarily entitled to

confidential treatment under existing Agency

regulations (40 CFR part 2) may be included

in the information released to these

individuals. Accordingly, by submission of

this proposal or signature on this contract or

other contracts, the Contractor hereby

consents to a limited release of its

confidential business information (CBI).

(b) Possible circumstances where the

Agency may release the Contractor’s CBI

include, but are not limited to the following:

(1) To other Agency contractors tasked

with assisting the Agency in the recovery of

Federal funds expended pursuant to the

Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C.

9607, as amended, (CERCLA or Superfund);

(2) To the U.S. Department of Justice (DOJ)

and contractors employed by DOJ for use in

advising the Agency and representing the

Agency in procedures for the recovery of

Superfund expenditures;
Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / Proposed Rules 64411

(3) To parties liable, or potentially liable,

for costs under CERCLA Sec. 107 (42 U.S.C.

9607), et al, and their insurers (Potentially

Responsible Parties) for purposes of

facilitating settlement or litigation of claims

against such parties;

(4) To other Agency contractors who, for

purposes of performing the work required

under the respective contracts, require access

to information the Agency obtained under

the Clean Air Act (42 U.S.C. 7401 et seq.); the

Federal Water Pollution Control Act (33

U.S.C.1251 et seq.); the Safe Drinking Water

Act (42 U.S.C. 300f et seq.); the Federal

Insecticide, Fungicide and Rodenticide Act

(7 U.S.C. 136 et seq.); the Resource

Conservation and Recovery Act (42 U.S.C.

6901 et seq.); the Toxic Substances Control

Act (15 U.S.C. 2601 et seq.); or the

Comprehensive Environmental Response,

Compensation, and Liability Act (42 U.S.C.

9601 et seq.);

(5) To other Agency contractors tasked

with assisting the Agency in handling and

processing information and documents in the

administration of Agency contracts, such as

providing both preaward and post award

audit support and specialized technical

support to the Agency’s technical evaluation

panels;

(6) To employees of grantees working at

EPA under the Senior Environmental

Enrollee (SEE) Program;

(7) To Speaker of the House, President of

the Senate, or Chairman of a Committee or

Subcommittee;

(8) To entities such as the General

Accounting Office, boards of contract

appeals, and the Courts in the resolution of

solicitation or contract protests and disputes;

(9) To Agency contractor employees

engaged in information systems analysis,

development, operation, and maintenance,

including performing data processing and

management functions for the Agency; and

(10) Pursuant to a court order or Courtsupervised agreement.

(c) The Agency recognizes an obligation to

protect the contractor from competitive harm

that may result from the release of such

information to a competitor. (See also the

clauses in this document entitled ‘‘Screening

Business Information for Claims of

Confidentiality’’ and ‘‘Treatment of

Confidential Business Information.’’) Except

where otherwise provided by law, the

Agency will permit the release of CBI under

subparagraphs (1), (3), (5), or (9) only

pursuant to a confidentiality agreement.

(d) With respect to contractors, 1552.235–

71 will be used as the confidentiality

agreement. With respect to Potentially

Responsible Parties, such confidentiality

agreements may permit further disclosure to

other entities where necessary to further

settlement or litigation of claims under

CERCLA. Such entities include, but are not

limited to accounting firms and technical

experts able to analyze the information,

provided that they also agree to be bound by

an appropriate confidentiality agreement.

(e) This clause does not authorize the

Agency to release the contractor’s CBI to the

public pursuant to a request filed under the

Freedom of Information Act.

(f) The Contractor agrees to include this

clause, including this paragraph (f), in all

subcontracts at all levels awarded pursuant

to this contract that require the furnishing of

confidential business information by the

subcontractor.

(End of Clause)

Dated: October 30, 1995.

Betty L. Bailey,

Director, Office of Acquisition Management.

[FR Doc. 95–30357 Filed 12–14–95; 8:45 am]

BILLING CODE 6560–50–P