Page images

token, it is an area where there is potential for concern. I think it is mitigated against by the fact that the Government virtually can behave as a sovereign in its contracts.

As I said, going into any contract negotiations the Government can, at its wherewithal, attempt to insert any type of restrictive data clause and does so in many areas that I mentioned, for purposes of national security, and so forth.

I think as individual problems come to light in a local setting, a particular NASA field center, or particular defense command, protection can be easily constructed and easily imposed. That doesn't say we have retroactive protection. For example, in a contract which omitted an essential protection and later gave rise to abuse, there would be no way to close the barn door. But in general we have good flexibility in the system.

I guess on balance, then, my reaction to that question would be some attention on the part of interested congressional bodies and my office is probably in order.

Mr. Weiss. What role should the National Archives and Record Service have in developing a policy on contractor disposition of records?

Mr. FETTIG. I certainly think they would be one of the key parties to be consulted with respect to the impact of any substantial modifications in policy. They would certainly be among the first to tell us if we are inadvertently proposing any undue burdens of a collection or retention nature. So they would be among the key parties to be consulted, I am sure.

Mr. WEISS. If you are familiar with the recommendations of the Privacy Commission and the Paperwork Commission relating to the use and disposition of records by contractors, would you have any comments on their recommendations?

Mr. FETTIG. We have a few comments. I think probably it would be appropriate to let Mr. Williamson comment on those areas.

Mr. WEISS. Mr. Williamson?

Mr. WILLIAMSON. The paperwork recommendation, as I recall, was that the National Archives and Record Service promulgate some sort of general policy with regard to retention and disposition of contractor records. That particular recommendation is being handled by the Regulatory, Policy and Records Management Division of OMB. It is not being followed through by our office.

The recommendation strikes me as having merit. I was unable to find out exactly what that division has done with the recommendation and where it stands, but will be glad to find out and supplement the record.

Mr. Weiss. I would appreciate that. [The information follows:] The Regulatory Policy and Reports Management Division of OMB has responsibility for the recommendation. Nothing has been done to date but that group is now following up the recommendation. The subcommittee staff has been given the names of the persons in OMB responsible for the recommendation.

Mr. WillIAMSON. Certainly. The Privacy Commission recommendation, as I read and understand it, basically says that the Privacy Act principles should be applied to contracts where systems of individualized records are being kept or developed.

Now, I think the Privacy Act statements and clauses that are currently in the procurement regulations pretty much take care of that. I think we need to know more about how well the agencies are following the instructions to insert these clauses in the proper contracts. But I think the clauses, themselves, assuming they are being used properly, should take care of that recommendation.

Mr. WEISS. Thank you.

Would you, Mr. Fettig, describe your work on a Federal policy for copyrights-or Mr. Williamson?

Mr. WILLIAMSON. There is a committee called, the Committee on Intellectual Property, or something like that. It is headed up by Jordan Baruch, the Assistant Secretary of Commerce. That committee is dealing right now with a number of issues regarding patents and copyrights. Now, we have a draft statement of copyright policy, which I think is pretty good. It was developed by a subcommittee of Dr. Baruch's committee. Basically, it says that, where copyrighted material is produced under a Government contract, if the material is either required by statute to be produced or is for Government use, the contractor should not be allowed to copyright it. In other words, it would be in the public domain.

Other material not required by statute and not for the use of the Government would be copyrightable by the contractor subject perhaps to appropriate rights or restrictions to allow Government use of it, if necessary.

I would be glad to insert in the record a copy of that copyright statement. Right now, we hope it may be approved at the next meeting of the Committee on Intellectual Property. We may then be in a position to promulgate it.

Mr. Weiss. We would appreciate that. Have you developed a draft policy on rights-in-data?

Mr. FETTIG. Yes, this is the one I referred to earlier, which has already been included in the record.

Mr. WEISS. Fine.

Mr. FETTIG. I might point out on the earlier question, Dr. Baruch's committee, which is a Subcommittee of the Federal Coordinating Council for Science, Engineering and Technology, is raising this issue in a much larger context and probably means that any final actions will be delayed. That broader context is what is happening to American industrial innovation. That is being led up by Dr. Press, the President's science adviser, and the whole issue of how we handle copyrights, patents and rights-in-data will be considered in that context.

Mr. Weiss. Does your office have any responsibility toward advising agencies on the implementation of the Privacy Act contractor provision? Have you done anything informally?

Mr. FETTIG. The central responsibility for the Privacy Act resides in the OMB General Counsel's office. Without a doubt, if for no other reason than the statutory requirement placed on my office. Yes, we have a basic responsibility to be the focal point as issues arise. To my knowledge, we have not intervened either formally or informally on Privacy Act matters. Is that right?

Mr. WILLIAMSON. That is correct.

Mr. Weiss. Have you received any complaints from agencies or from contractors about difficulties with the Privacy Act require ments, and, if so, would you elaborate?

Mr. FETTIG. No, again not to my knowledge, neither formally nor informally.

Mr. WILLIAMSON. I have heard of none. But I might point out again that it is the OMB General Counsel's office, which is the central repository of the complaints that come in, and it is very conceivable that they know of things that we don't.

Mr. Weiss. Thank you. Does counsel have any further questions?
Mr. WEISS. Minority counsel?
Ms. SANDS. No.

Mr. WEISS. Gentlemen, thank you very much. We appreciate your testimony.

[Mr. Fettig's prepared statement follows:



Mr. Chairman and Members of the Subcommittee-

It is a pleasure for me to appear before this subcommittee to discuss the question of Federal agency policies regarding the ownership and disposition of contractor data which is

not delivered to the Government as part of the contractor's

final product.


Let me at the outset note that the Office of Federal

Procurement Policy (OFPP) is a part of the office of Management and Budget. The Office carries directive authority for Federal contracting policies, procedures, regulations and forms under Public Law 93-400, which created the Office in

1974. As such, we are often looked to as a spokesman for Government-wide contracting issues, such as Government contractor data policy, which transcend the programs or problems of

any one agency, or which have interagency conflicts.


intended that the OFPP be the focal point for policy and

reform in Federal acquisition practices.

In this connection, one of the primary missions of our

Office is to implement the recommendations of the Commission

on Government Procurement, which submitted its report to the

Congress in December, 1972.

Data produced under Government

contracts was addressed by the Commission, and I will discuss

its findings and our action on those findings in my testimony.


I have studied the draft staff report on "Ownership,

Use, and Disposition of Information in the Possession of Federal

Contractors and Grantees" furnished by the subcommittee as

background for this hearing.

The draft report makes several

findings, among them that, "No comprehensive Federal policy

exists for the control and disposition of data developed in the course of Federal contracts and grants." The draft report

supports this finding in the sense that there is no single

statement of data policy that one can turn to for guidance

in every situation.

However, the types of data are so numerous,

the circumstances under which the data may be created or used

are so diverse, and the uses, for good or ill, to which the

data may be put are so varied, that

believe there is a

fundamental question over what is meant by a "comprehensive

policy," especially if what is intended is an elaborate set of regulatory controls and contract clauses.

I agree, however, that the draft subcommittee report

fully demonstrates the need to think about the general

problem to see if any additional policy guidance would be


My Office would be most happy to work with this

subcommittee and its staff in such an effort.


It seems to me that a starting point for an examination

of data policy would be to analyze the various categories of data we are dealing with and the existing constraints, or

lack of constraints, on its use.

While one can differ on

the categorizations, I would group the data connected with

Government contracts, and in the hands of Government

contractors, roughly as follows:

Data Required to be Produced by the Contract
Terms, Either Expressly or by Implication

This data can be further broken down into two general

subcategories, "product data" and "non-product data."

[blocks in formation]

policies to be followed by executive branch agencies in the

control of contractually required data.

« PreviousContinue »