Defense Federal Acquisition Regulation Supplement; Government Support Contractor Access to Technical Data (DFARS 2009-D031), 30233-30242 [2013-12055]

Download as PDF Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 209, 227, and 252 RIN Number 0750–AG38 Defense Federal Acquisition Regulation Supplement; Government Support Contractor Access to Technical Data (DFARS 2009–D031) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. AGENCY: DoD has adopted as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2010 that provides authority for certain types of Government support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, provided that the technical data owner may require the support contractor to execute a non-disclosure agreement having certain restrictions and remedies. SUMMARY: DATES: Effective: May 22, 2013. FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, 571–372–6099. SUPPLEMENTARY INFORMATION: pmangrum on DSK3VPTVN1PROD with RULES I. Background DoD published an interim rule in the Federal Register at 76 FR 11363 on March 2, 2011, to implement section 821 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84), enacted October 28, 2009. Section 821 provides authority for certain types of Government support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, provided that the technical data owner may require the support contractor to execute a non-disclosure agreement having certain restrictions and remedies. The DFARS scheme for acquiring rights in technical data is based on 10 U.S.C. 2320 and 2321. Section 2320 establishes the basic allocation of rights in technical data, and provides, among other things, that a private party is entitled to restrict the Government’s rights to release or disclose privately developed technical data outside the Government. This restriction is implemented in the DFARS as the ‘‘limited rights’’ license, which VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 essentially limits the Government’s use of such data only for in-house use and which does not include release to Government support contractors. Historically, the statutorily based scheme has included only two categorical exceptions to the basic nondisclosure requirements for such privately developed data: • A ‘‘type’’ exception, in which the Government is granted unlimited rights in certain types of ‘‘top-level’’ data that are not treated as proprietary (e.g., form, fit, and function data; data necessary for operation, maintenance, installation, or training; publicly available data) (2320(a)(2)(C)); and • A ‘‘special needs’’ exception for certain important Government activities that are considered critical to Government operations (e.g., emergency repair and overhaul; evaluation by a foreign government), and are allowed only when the recipient of the data is made subject to strict nondisclosure restrictions on any further release of the data. (2320(a)(2)(D)) Section 821 amends 10 U.S.C. 2320 to add a third statutory exception to the prohibition on release of privately developed data outside the Government, allowing a covered Government support contractor access to and use of any technical data delivered under a contract for the sole purpose of furnishing independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of the program or effort to which such technical data relates. The statute also provides a definition of ‘‘covered Government support contractor.’’ Four respondents submitted public comments in response to the interim rule. II. Discussion and Analysis DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows: A. Summary of Significant Changes 1. DoD has revised DFARS 227.7104(b) and the definition of ‘‘Small Business Innovation Research (SBIR) data rights’’ to clarify the Government’s limited rights in technical data and restricted rights in computer software under the SBIR data rights license obtained under the clause at 252.227– 7018. 2. DoD has deleted the requirement that the covered Government support contractor provide copies of any non- PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 30233 disclosure agreements (NDAs) executed with proprietary information owners, upon request of the Contracting Officer (see 209.505–4, 252.227– 7013(b)(3)(iv)(E), 252.227– 7014(b)(3)(iii)(E), 252.227–7015(b)(3)(v), 252.227–7018(b)(8)(v), 252.227– 7025(b)(1)(ii)(E), and 252.227– 7025(b)(4)(ii)(E)). This is not a statutory requirement, and the benefit to the Government in collecting these copies is outweighed by the administrative burden. B. Analysis of Public Comments 1. Non-Disclosure Agreements (NDAs) a. Timing of NDA Comment: Two respondents suggested that proprietary information should not be disclosed to support contractors until after the owner is given notice an NDA is executed. The respondents stated that if the Government allows access to the proprietary information without an NDA in place, then the proprietary information owner ‘‘loses the opportunity to enforce its rights’’ and the covered Government support contractor would no longer be motivated to enter into an NDA. DoD Response: A covered Government support contractor may not receive access to proprietary information in the absence of appropriate legally binding nondisclosure obligations. The Government’s contract with a covered Government support contractor must always contain the clause at 252.227– 7025, which places legally binding use and non-disclosure restrictions on the covered Government support contractor before it has access to any proprietary information. In addition, 252.227– 7025(c) expressly confirms that the owner of the proprietary information is a third-party beneficiary of those use and non-disclosure obligations and has a direct cause of action against the covered Government support contractor for any breach of those obligations. Thus, the covered Government support contractor cannot receive any such proprietary information unless and until it is already subject to, at a minimum, the legally binding use and nondisclosure obligations of the clause at 252.227–7025, which also subjects the covered Government support contractor to a direct cause of action by the proprietary information owner. b. Use and Non-Disclosure Agreement (DFARS 227.7103–7) Comment: One respondent suggested that in addition to allowing a Contractor to enter an NDA with the covered Government support contractor or to E:\FR\FM\22MYR1.SGM 22MYR1 30234 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES waive its right to an NDA, the contractor should be allowed, alternatively, to require the covered Government support contractor to execute the Use and NonDisclosure Agreement in 227.7103–7. DoD Response: The Use and NonDisclosure Agreement at 227.7103–7 is an agreement between the Government and a private party, and is used only when the information is being provided to the private party outside of a contract that contains the clause at 252.227– 7025. When the receiving party is a covered Government support contractor, then, by definition, the contract under which the information is being provided must contain the clause at 252.227– 7025—or else the receiving contractor cannot qualify as a covered Government support contractor and would not be authorized to receive the proprietary information for that contract performance. Thus, in these cases, the clause at 252.227–7025 is already applicable and the NDA at 227.7103–7 is not to be used. Moreover, the 227.7103–7 NDA would be insufficient because it does not address the specialized restrictions for covered Government support contractors— because those restrictions are fully implemented in the clause at 252.227– 7025, which must be in the contract in order for the recipient to qualify to receive the information as a covered Government support contractor. c. Non-Disclosure Agreements That Exceed the Terms and Conditions of DFARS 252.227–7025 Comment: Two respondents suggested that the requirement, in the NDA between the contractor and the covered Government support contractor, prohibiting any additional terms and conditions over those present in 252.227–7025 without mutual agreement of the parties, would cause covered Government support contractors to ‘‘balk’’ at signing industry standard NDAs which most often include terms and conditions that are not included in 252.227–7025, and that the restrictions set forth in the clause ‘‘do not make a legally sufficient document’’. The respondents suggested removing the prohibition by providing language allowing additional terms and conditions. One respondent also noted that an example of a restriction that is not included in the clause at 252.227–7025 but that is ‘‘particularly important for enforcement’’ of the proprietary information owner’s rights, would be a requirement for the covered Government support contractor to have its employees sign individual NDAs containing materially similar terms. VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 DoD Response: Regarding the legal sufficiency and effect of 252.227–7025, that clause unequivocally establishes a legally sufficient and binding obligation on the recipient of the information, which expressly includes all of the restrictions provided in the statutory language, and which expressly affirms that the proprietary information owner is a third-party beneficiary of those clause obligations and thereby has a direct cause of action against the recipient of the proprietary information for any breach of those obligations. Additionally, the clause at 252.227– 7025 requires that any such direct NDA between the covered Government support contractor and the proprietary information owner will ‘‘implement’’ the requirements of the clause at 252.227–7025, which would require, at a minimum, terms and conditions that are necessary to establish a legally sufficient NDA that covers all of the restrictions and obligations contained in the clause at 252.227–7025. Beyond those minimums, the parties are also free to negotiate for any additional terms and conditions by mutual agreement, but neither party can require the other to agree to a term or condition that is outside of those necessary to implement the 252.227–7025 requirements (which fully implement the statutory requirements). DoD agrees with the respondent’s suggestion that it is important to require the covered Government support contractor to ensure that its employees are subject to appropriate nondisclosure obligations, and observes that the obligations on the recipient contractor in the clause at 252.227–7025 do, in fact, create an obligation for that contractor to ensure that it implements the use and nondisclosure restrictions appropriately in the performance of its contractual duties, which would necessarily include ensuring that its employees who will have access or use of the proprietary information are subject to the applicable use and nondisclosure restrictions. However, to the extent that this may be viewed as an implicit obligation of the clause at 252.227–7025, and thus potentially could be overlooked or less than fully understood, such ambiguity must be eliminated. Accordingly, DoD has added a new paragraph (d) to 252.227–7025 to explicitly require the recipient contractor to ensure that its employees are subject to use and non-disclosure obligations prior to the employees being provided access to or use of the proprietary information. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 d. Performance Assessments and Root Cause Analysis (PARCA) Activities Comment: One respondent suggested that DoD’s Performance Assessments and Root Cause Analysis (PARCA) activities related to utilizing a ‘‘master NDA’’ between the Government and support contractors to cover third-party proprietary earned value management data (wherein the data owner is a thirdparty beneficiary of the master NDA) may be inconsistent with the approach in this rule (i.e., which provides for individual ‘‘direct’’ NDAs between the support contractor and the proprietary information owner), and recommends internal DoD coordination to eliminate inconsistencies. The respondent acknowledged that although such earned value management data largely involves ‘‘proprietary financial, business, and contract performance data and not Limited Rights Technical Data or Restricted Rights Software, it would be most beneficial to ensure consistency in the processes for disclosing both types of data.’’ DoD Response: This rule requires the use of the clause at 252.227–7025 with all covered Government support contractors, which serves as a form of ‘‘master NDA’’ between the Government and the support contractor, in which the proprietary information owner is a third-party beneficiary of that NDA and thereby has a direct cause of action against the support contractor for any breach of the NDA requirements. However, as noted by the respondent, earned value management data does not include limited rights technical data or restricted rights computer software, and thus the PARCA efforts are outside the scope of this rule, as well as the underlying statutory obligations regarding a direct NDA between a covered Government support contractor and the proprietary information owner. 2. Notification Requirements Comment: One respondent suggested that a covered Government support contractor should be obligated to notify the proprietary information owner upon first access to the proprietary information and annually thereafter. DoD Response: The interim rule placed a direct obligation on the covered Government support contractor to notify the proprietary information owner upon first access to the proprietary information. DoD has added at 252.227– 7025(b)(5)(iii) a requirement to provide a thirty (30) day period within which the covered Government support contractor must notify the Contractor of the release or disclosure of the E:\FR\FM\22MYR1.SGM 22MYR1 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations Contractor’s limited rights data to the covered Government support contractor. The thirty (30) day period will provide a reasonable time for notification. The recommended annual notification requirement would place an onerous administrative burden on the covered Government support contractor. Accordingly, the final rule does not require an annual notification. 3. Use and Release Conditions Comment: One respondent suggested that the use and release conditions that a covered Government support contractor must agree to, as set forth in 10 U.S.C. 2320 (f)(2)(A)–(E), be added to the definition of ‘‘covered Government support contractor’’ at 252.227– 7013(a)(5)(ii), 252.227–7014(a)(6)(ii), 252.227–7015(a)(2)(ii), and 252.227– 7018(a)(6)(ii). DoD Response: These conditions are present in, and applied to all covered Government support contractors, at paragraph (b)(5) of 252.227–7025, which is a required clause for all contracts when it is anticipated that the Government will provide the contractor, for performance of its contract, technical data marked with another contractor’s restrictive legend(s) (see clause prescriptions at 227.7103–6 (c), 227.7104(f)(1) and 227.7203–6(d)). A support contractor cannot qualify as a covered Government support contractor unless it meets the definition of a ‘‘covered Government support contractor,’’ which requires that the clause at 252.227–7025 be included in the covered Government support contractor’s contract and thereby applies all of the cited restrictions to the covered Government support contractor’s use of the relevant data or software to perform that contract. This structure was used to include the substance of the applicable use and release conditions within the clause that serves to apply the restrictions to contractors of any and all types, including covered Government support contractors that are receiving such Government-furnished information (GFI). Thus, these restrictions are included in the definition of ‘‘covered Government support contractor’’ by cross-reference. pmangrum on DSK3VPTVN1PROD with RULES 4. Access and Use Restrictions a. Clarification Comment: One respondent suggested that the rule should clarify the access and use restrictions on a covered Government support contractor by expressly citing the statutory purpose limitation of ‘‘for the sole purpose of furnishing independent and impartial VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 advice or technical assistance directly to the Government in support of the Government’s management and oversight of the program or effort to which such [proprietary information] relates’’ in the definitions of ‘‘limited rights’’ and ‘‘restricted rights’’ at DFARS 252.227–7013(a)(14)(i)(B)(1), 252.227– 7014(a)(15)(vii), –7018(a)(15)(i)(B)(1), and 252.227–7018(a)(18)(vii), and in the corresponding limitations on the covered Government support contractor’s access and use of such information at 252.227–7025(b)(5)(i). DoD Response: The statutory purpose restrictions on the covered Government support contractor’s access and use of such proprietary information are expressly incorporated at 252.227– 7025(b)(5)(i) into the access and use restrictions on a covered Government support contractor for limited rights technical data and restricted rights computer software, and also for technical data related to commercial items. However, DoD has clarified the definitions of ‘‘limited rights’’ and ‘‘restricted rights’’ to specify that the Government’s authorized release to a covered Government support contractor is in the performance of a covered Government support contract (which necessarily contains the clause at 252.227–7025). Thus no further revisions are necessary. This structure was used to include the substance of the applicable use and release conditions within the clause that serves to apply the restrictions to the covered Government support contractors. b. Covered Government Support Contractors’ ‘‘Access and Use’’ of Proprietary Data Comment: One respondent noted that the statute authorizes covered Government support contractors only to ‘‘access and use’’ the third party proprietary data, and suggested the deletion of the additional terms ‘‘modify, reproduce, perform, display, release or disclose’’ (or corresponding terms ‘‘modification, reproduction, performance, display, release or disclose’’) in several sections of the rule (e.g., 252.227–7013(a)(14)(i)(B)(1), 252.227–7014(a)(15)(vii), 252.227– 7018(a)(15)(i)(B)(1) and (a)(18)(vii), and 252.227–7025(b)(4)(ii)(A)). DoD Response: Independently of the subject matter of this rule, the statutory language at 10 U.S.C. 2320 and 2321 refer to a limited set of regulated activities relating to technical data (e.g., ‘‘use’’ and ‘‘release’’) However, in the detailed implementation of the statutory scheme, the DFARS utilizes a more complete set of verbs (e.g., ‘‘use, modify, PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 30235 reproduce, modify, perform, display, release or disclose’’) to ensure that all relevant activities are covered, including recognizing the inherent elements of a generic ‘‘use’’ that are expressly distinguished in the U.S. copyright laws (see, e.g., 17 U.S.C. 106). The rule uses this more complete and detailed set of verbs to be consistent with long-standing conventions in implementing these statutory requirements. In addition, all of the covered activities are subject to the numerous restrictions and safeguards that are implemented to protect the interests of the owner of the proprietary data. 5. Authorized Person Comment: Two respondents noted that in the definitions of ‘‘limited rights’’ and ‘‘restricted rights’’ the covered Government support contractor is authorized to release the proprietary information to an ‘‘authorized person’’ in performing the covered Government support contractor’s contract (see DFARS 252.227–7013(a)(14)(i)(B)(1), 252.227–7014(a)(15)(vii) and 252.227– 7018(a)(15)(i)(B)(1)). The respondents suggested that the term ‘‘authorized person’’ be defined to ‘‘limit the support contractor’s right to release or disclose— to within the support contractor’s organization, and only for the performance of the support contract’’ or ‘‘only to the Government, the contractor that owns the proprietary data, or parties the support contractor has confirmed have entered a nondisclosure agreement, license, subcontract, or other agreement giving the owning parties’ permission for such disclosure.’’ DoD Response: To make the reference to ‘‘authorized person’’ more clear, DoD has replaced the reference to an ‘‘authorized person’’ that was used in the interim rule definitions of ‘‘limited rights’’ and ‘‘restricted rights’’ with the more definitive and accurate phrases ‘‘a person authorized to receive limited rights technical data’’ and ‘‘a person authorized to receive restricted rights computer software,’’ respectively. 6. Definition of ‘‘Restricted Rights’’ Comment: One respondent noted that the rule makes revisions to the coverage for restricted rights noncommercial computer software that are analogous to the revisions for limited rights technical data, but recommends revisions to recognize certain important differences between restricted rights computer software and limited rights technical data (e.g., that the Government’s rights to use and reproduce restricted rights software are proscribed differently and E:\FR\FM\22MYR1.SGM 22MYR1 30236 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES to a greater extent than for limited rights technical data). The respondent recommends revisions to ensure that the covered Government support contractor’s authorized use of restricted rights software is subject to all of the restrictions that apply to the Government’s use (while retaining the additional restrictions that further restrict the covered Government support contractor’s activities). DoD Response: DoD has revised the definition of ‘‘restricted rights’’ to address the concerns raised by the respondent, ensuring that the covered Government support contractor’s authorized uses are no greater than the uses authorized for the Government (see 252.227–7014(a)(15)(v)(D), (vi)(C), and (vii); and 252.227–7018(a)(18)(iv)(B), (v)(D), (vi)(C), and (vii)). 7. Covered Government Support Contractor Organizational Conflict of Interest Comment: One respondent noted that the rule covers situations in which a covered Government support contractor could be in competition with a contractor-owner of proprietary data by prohibiting the support contractor from using that data to compete for any contracts, but this does not cover a support contractor that may not be considered to be in competition, but that would have access to such proprietary information in the course of advising the Government on overall acquisition strategies. The respondent recommends that the rule be revised to specifically prohibit such a support contractor from using the data to advise the Government on acquisition strategies or overall strategies in way that would benefit the support contractor. One respondent commented that the interim rule seemed to conflict with DoD guidance regarding organizational conflicts of interest, observing that one part of a large defense contractor might provide Government support contracting services thus creating opportunities for that contractor to obtain proprietary data of competitors. The respondent stated that only in limited circumstances on a case-by-case basis should support contractors be looking at proprietary information from other contractors and noted that a more appropriate solution might be to reduce DoD dependence on contractors. DoD Response: Independently of this rule, the organizational conflict of interest rules restrict a support contractor, including a covered Government support contractor, from advising the Government on acquisition strategies or overall strategies, or any VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 other matter, in which the support contractor would have a financial or other interest (i.e., that would qualify as an organizational conflict of interest). Those prohibitions and restrictions apply regardless of whether the advising support contractor would have access to any third party proprietary data in the course of such advising. This rule supplements those existing organizational conflict of interest restrictions by adding layers of restriction, and additional safeguards, to ensure that any covered Government support contractor’s access to a third party proprietary data does not result in any competitive harm to the third party data owner. The rule implements the statutory prohibition against covered Government support contractors having affiliations with the prime and first-tier subs, or any direct competitor of the prime or such first-tier sub and reflects the policy determinations inherent in the statute. Alteration of DoD policy regarding the extent of DoD reliance on contractors is beyond the scope of rulemaking for this statutory implementation. 8. Lower-Tier Subcontractor Affiliations Comment: One respondent commented that the definition of ‘‘covered Government support contractor’’ is limited to preclude affiliation only with the prime and firsttier subcontractors on the relevant program(s), and suggested that support contractors that are not covered by the rule can have affiliations to lower-tier subcontractors and would not be subject to the requirement to sign the direct NDA. The respondent suggested that the rule should be amended to bring such support contractors under the requirement to sign the direct NDA. DoD Response: The prohibition against covered Government support contractors having affiliations with the prime and first-tier subcontractors is a substantive limitation from the statutory definition of ‘‘covered Government support contractor.’’ Changing the scope of the definition to prohibit affiliations at lower tiers would narrow the scope of the definition of ‘‘covered Government support contractor’’ in a manner that is inconsistent with the statute. The statutory scheme permits affiliations at lower tiers, but established numerous restrictions and protections to ensure that the covered Government support contractor’s access to proprietary information does not result in competitive harm. This scheme is reinforced in all cases by the rules and restrictions against organizational conflicts of interest. Thus, a support contractor with affiliations at lower tiers PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 may still qualify as a covered Government support contractor if it meets all other definitional criteria (see 252.227–7013(a)(5), 252.227–7014(a)(6), 252.227–7015(a)(2), and 252.227– 7018(a)(6)), but in all such cases the covered Government support contractor would be subject to the obligations regarding direct NDAs (see 252.227– 7025(b)(1)(ii)(D), (b)(4)(ii)(D), and (d)). If a support contractor is not covered by the rule (i.e., does not meet the definition of ‘‘covered Government support contractor’’), then that support contractor would not be subject to that direct NDA requirement, but that is because the support contractor would not be authorized to receive the proprietary information as a covered Government support contractor in the first place. It is impossible under this rule for a covered Government support contractor to be authorized to receive such proprietary information and not to be subject to the obligations regarding direct NDAs. 9. DFARS Coverage at 209.5 Comment: One respondent commented that it was not clear if the language of DFARS 209.505–4(b) of the interim rule was meant to be a replacement or supplement for FAR 9.505–4(b). The respondent also commented that DFARS 209.505–4(b) covers all proprietary information, whereas the revisions to 10 U.S.C. 2320 cover only technical data and the proposed revisions cover both cases. DoD Response: The DFARS text at 209.505–4(b) addresses DoD-specific requirements and procedures applicable only to third party proprietary technical data and computer software being accessed by DoD contractors, including covered Government support contractors, which provides specific coverage for a subset of the more generic coverage in the FAR. In DoD, the unmodified FAR coverage still applies to DoD contractors accessing other types of proprietary information in the performance of their contracts. The numbering is consistent with DFARS drafting conventions. 10. Commercial Restrictive Legend Comment: With respect to DFARS 252.227–7025(b)(4)(i), one respondent commented that there is no requirement for a commercial restrictive legend in 10 U.S.C. 2320 or DFARS 252.227–7015, nor is that term defined in the interim rule. The respondent suggested deletion of all references to a commercial restrictive legend. DoD Response: It is correct that neither 10 U.S.C. 2320 nor DFARS 252.227–7015 provides the specific E:\FR\FM\22MYR1.SGM 22MYR1 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations form, content, or format for a restrictive legend on technical data related to commercial items (or technical data that is a commercial item). However, in accordance with 252.227–7015(d), the Government, and other persons to whom the Government may have released or disclosed technical data delivered or otherwise furnished under a contract, shall have no liability for any release or disclosure of technical data that are not ‘‘marked to indicate that such data are licensed data subject to use, modification, reproduction, release, performance, display, or disclosure restrictions.’’ In addition, although not included as a separate definition in the paragraph (a) definitions section of the clause at 252.227–7025, the reference to ‘‘commercial restrictive legend’’ is defined parenthetically at 252.227– 7025(b)(4)(i) as ‘‘(i.e., marked to indicate that such data are subject to use, modification, reproduction, release, performance, display, or disclosure restrictions).’’ pmangrum on DSK3VPTVN1PROD with RULES 11. Technical Correction Comment: One respondent commented that in the interim rule, the definitions of ‘‘limited rights,’’ ‘‘restricted rights,’’ and ‘‘government purpose rights’’ were renumbered in DFARS 252.227–7013(a) and 252.227– 7014(a), but the renumbering was not accommodated in 252.227–7013(b)(4) and 252.227–7014(b)(4) in an apparent drafting error. This had the effect of making government purpose rights the minimum rights that must be provided to the Government in Specially Negotiated License Rights. DoD Response: The respondent is correct. DoD issued a technical amendment on February 24, 2012, to correct the text of 252.227–7013(b)(4) and (b)(6), and 252.227–7014(b)(4) and (b)(6) to refer respectively to 252.227– 7013(a)(14) (limited rights) and 252.227–7014(a)(15) (restricted rights) (see 77 FR 10976). DoD also corrected paragraph references in 252.227– 7013(b)(2)(i)(A). B. Other changes 1. Conforming changes are made to paragraphs (b)(20), (b)(21), (c)(2) and (c)(3) of the clause at 252.212–7001, ‘‘Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items,’’ to update the cross-references to the clauses modified by this final rule. 2. 252.227–7025(b)(1)(ii) and 252.227–7025(b)(4)(ii) now reference a new paragraph (b)(5), to avoid repetition of the restrictions in each location. The restrictions regarding GFI marked with VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 limited or restricted rights legends and GFI marked with commercial restrictive legends respectively are revised for clarity. III. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review by the Office of Information and Regulatory Affairs under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. IV. Regulatory Flexibility Act DoD has prepared a final regulatory flexibility analysis consistent with 5 U.S.C. 603. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows: This rule amends the Defense Federal Acquisition Regulation Supplement DFARS) to implement section 821 of the National Defense Authorization Act for Fiscal Year 2010. Section 821 provides authority for certain types of Government support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, provided that the technical data owner may require the support contractor to execute a nondisclosure agreement having certain restrictions and remedies. No public comments were received in response to the initial regulatory flexibility analysis. No comments were received from the Chief Counsel for Advocacy of the Small Business Administration in response to the rule. The rule affects small businesses that are Government support contractors that need access to proprietary technical data or computer software belonging to prime contractors and other third parties. It will also affect any small business that is the owner of ‘‘limited rights’’ technical data or restricted rights computer software in the possession of the Government to which the support contractor will require access. The rule imposes no reporting, recordkeeping, or other information PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 30237 collection requirements. However, the statute provides that the support contractor must be willing to sign a nondisclosure agreement with the owner of the data. The rule has implemented this requirement in a way that preserves maximum flexibility for the private parties to reach mutual agreement without unnecessary interference from the Government. To reduce burdens, the rule permits the owner of the data to waive the requirement for a nondisclosure agreement, since the Government clauses already adequately deal with non-disclosure. Further, the rule provides that the support contractors cannot be required to agree to any conditions not required by statute. In the final rule, DoD has deleted the requirement to provide a copy of the non-disclosure agreement or waiver to the contracting officer, upon request. Other than the alternatives already addressed, there are no known significant alternatives to the rule that would meet the requirements of the statute and minimize any significant economic impact of the rule on small entities. The impact of this rule on small business is not expected to be significant because the execution of a non-disclosure agreement is not likely to have a significant cost or administrative impact. V. Paperwork Reduction Act The rule imposes no new reporting, recordkeeping, or other information collection requirements. DFARS clauses 252.227–7013, 252.227–7014, 252.227– 7015, and 252.227–7025 contain reporting or recordkeeping requirements that require the approval of the Office of Management and Budget under 44 U.S.C. chapter 35. However, these clauses are already covered by an approved OMB control number 0704– 0369 in the amount of approximately 1.76 million hours. List of Subjects in 48 CFR Parts 209, 227, and 252 Government procurement. Kortnee Stewart, Editor, Defense Acquisition Regulations System Therefore, DoD amends 48 CFR parts 209, 227, and 252 as follows: 1. The authority citation for parts 209 and 252 continues to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR Chapter 1. E:\FR\FM\22MYR1.SGM 22MYR1 30238 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations PART 209—CONTRACTOR QUALIFICATIONS 2. Section 209.505–4 is revised to read as follows: ■ 209.505–4 Obtaining access to proprietary information. technical data or restricted rights computer software, respectively. * * * * * PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES (b) For contractors accessing third party proprietary technical data or computer software, non-disclosure requirements are addressed at 227.7103–7(b), through use of the clause at 252.227–7025 as prescribed at 227.7103–6(c) and 227.7203–6(d). Pursuant to that clause, covered Government support contractors may be required to enter into non-disclosure agreements directly with the third party asserting restrictions on limited rights technical data, commercial technical data, or restricted rights computer software. The contracting officer is not required to obtain copies of these agreements or to ensure that they are properly executed. 252.212–7001 PART 227—PATENTS, DATA, AND COPYRIGHTS 252.227–7013 [Amended] 4. Section 227.7103–5 paragraph (c)(2) is amended by inserting a comma after the word ‘‘release’’. ■ 5. Section 227.7104 is amended by revising paragraph (b) and (c) to read as follows: ■ pmangrum on DSK3VPTVN1PROD with RULES 227.7104 Contracts under the Small Business Innovation Research (SBIR) Program. (a) * * * (b) Under the clause at 252.227–7018, the Government obtains SBIR data rights in technical data and computer software generated under the contract and marked with the SBIR data rights legend. SBIR data rights provide the Government limited rights in such technical data and restricted rights in such computer software during the SBIR data protection period commencing with contract award and ending five years after completion of the project under which the data were generated. Upon expiration of the five-year restrictive license, the Government has unlimited rights in the SBIR technical data and computer software. (c) During the SBIR data protection period, the Government may not release or disclose SBIR technical data or computer software to any person except as authorized for limited rights VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 6. Section 252.212–7001 is amended— ■ a. By removing the clause date ‘‘(FEB 2013)’’ and adding ‘‘(MAY 2013)’’ in its place; ■ b. In paragraph (b)(20), by removing the clause date ‘‘(FEB 2012)’’ and adding ‘‘(MAY 2013)’’ in its place; ■ c. In paragraph (b)(21), by removing the clause date ‘‘(DEC 2011)’’ and adding ‘‘(MAY 2013)’’ in its place; ■ d. In paragraph (c)(2,) by removing the clause date ‘‘(FEB 2012)’’ and adding ‘‘(MAY 2013)’’ in its place; and ■ e. In paragraph (c)(3,) by removing the clause date ‘‘(DEC 2011)’’ and adding ‘‘(MAY 2013)’’ in its place. ■ [Amended] 7. Section 252.227–7013 is amended— ■ a. By removing the clause date ‘‘(FEB 2012)’’ and adding ‘‘(MAY 2013)’’ in its place; ■ b. By revising paragraph (a)(14)(i)(B)(1); and (b)(3)(iv) to read as follows: ■ 3. The authority citation for Part 227 is amended by removing citation ‘‘41 U.S.C. 421 and 48 CFR Chapter 1’’ and adding citation ‘‘41 U.S.C. 1303 and 48 CFR Chapter 1’’ in its place. ■ 227.7103–5 [Amended] 252.227–7013 Rights in Technical Data— Noncommercial Items. * * * * * (a) * * * (14) * * * (i) * * * (B) A release or disclosure to— (1) A covered Government support contractor in performance of its covered Government support contract for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive limited rights technical data; or * * * * * (b) * * * (3) * * * (iv) The Contractor acknowledges that— (A) Limited rights data are authorized to be released or disclosed to covered Government support contractors; (B) The Contractor will be notified of such release or disclosure; (C) The Contractor (or the party asserting restrictions as identified in the limited rights legend) may require each such covered Government support contractor to enter into a non-disclosure agreement directly with the Contractor (or the party asserting restrictions) regarding the covered Government PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 support contractor’s use of such data, or alternatively, that the Contractor (or party asserting restrictions) may waive in writing the requirement for a nondisclosure agreement; and (D) Any such non-disclosure agreement shall address the restrictions on the covered Government support contractor’s use of the limited rights data as set forth in the clause at 252.227–7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement. * * * * * 252.227–7014 [Amended] 8. Section 252.227–7014 is amended— ■ a. By removing the clause date ‘‘(FEB 2012)’’ and adding ‘‘(MAY 2013)’’ in its place; ■ b. By revising paragraph (a)(15); and (a)(16)(b)(iii) to read as follows: ■ 252.227–7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation. * * * * * (a) * * * (15) ‘‘Restricted rights’’ apply only to noncommercial computer software and mean the Government’s rights to— (i) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract; (ii) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause; (iii) Make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes; (iv) Modify computer software provided that the Government may— (A) Use the modified software only as provided in paragraphs (a)(15)(i) and (iii) of this clause; and (B) Not release or disclose the modified software except as provided in paragraphs (a)(15)(ii), (v), (vi) and (vii) of this clause; (v) Permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of E:\FR\FM\22MYR1.SGM 22MYR1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that— (A) The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made; (B) Such contractors or subcontractors are subject to the use and nondisclosure agreement at 227.7103–7 of the Defense Federal Acquisition Regulation Supplement (DFARS) or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227–7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends; (C) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; and (D) Such use is subject to the limitations in paragraphs (a)(15)(i) through (iii) of this clause; (vi) Permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use the computer software when necessary to perform the repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that— (A) The intended recipient is subject to the use and non-disclosure agreement at DFARS 227.7103–7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227–7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends; (B) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; and (C) Such use is subject to the limitations in paragraphs (a)(15)(i) through (iii) of this clause; and (vii) Permit covered Government support contractors in the performance of covered Government support contracts that contain the clause at VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 252.227–7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, to use, modify, reproduce, perform, display, or release or disclose the computer software to a person authorized to receive restricted rights computer software, provided that— (A) The Government shall not permit the covered Government support contractor to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; and (B) Such use is subject to the limitations in paragraphs (a)(15)(i) through (iv) of this clause. (16) * * * (b) * * * (3) * * * (iii) The Contractor acknowledges that— (A) Restricted rights computer software is authorized to be released or disclosed to covered Government support contractors; (B) The Contractor will be notified of such release or disclosure; (C) The Contractor (or the party asserting restrictions, as identified in the restricted rights legend) may require each such covered Government support contractor to enter into a non-disclosure agreement directly with the Contractor (or the party asserting restrictions) regarding the covered Government support contractor’s use of such software, or alternatively, that the Contractor (or party asserting restrictions) may waive in writing the requirement for a non-disclosure agreement; and (D) Any such non-disclosure agreement shall address the restrictions on the covered Government support contractor’s use of the restricted rights software as set forth in the clause at 252.227–7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement. * * * * * ■ 9. Section 252.227–7015 is amended— ■ a. By removing the clause date ‘‘(DEC 2011)’’ and adding ‘‘(MAY 2013)’’ in its place; ■ b. By revising paragraph (b)(3) to read as follows: 252.227–7015 Technical Data— Commercial Items. * PO 00000 * * Frm 00043 * Fmt 4700 * Sfmt 4700 30239 (b) * * * (3) The Contractor acknowledges that— (i) Technical data covered by paragraph (b)(2) of this clause are authorized to be released or disclosed to covered Government support contractors; (ii) The Contractor will be notified of such release or disclosure; (iii) The Contractor (or the party asserting restrictions as identified in a restrictive legend) may require each such covered Government support contractor to enter into a non-disclosure agreement directly with the Contractor (or the party asserting restrictions) regarding the covered Government support contractor’s use of such data, or alternatively, that the Contractor (or party asserting restrictions) may waive in writing the requirement for an nondisclosure agreement; and (iv) Any such non-disclosure agreement shall address the restrictions on the covered Government support contractor’s use of the data as set forth in the clause at 252.227–7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement. * * * * * ■ 10. Section 252.227–7018 is amended— ■ a. By removing the clause date ‘‘(MAR 2011)’’ and adding ‘‘(MAY 2013)’’ in its place; ■ b. By revising paragraphs (a)(15); (a)(18); (a)(19); (b)(4); (b)(5); and (b)(8) to read as follows: 252.227–7018 Rights in Noncommercial Technical Data and Computer Software— Small Business Innovation Research (SBIR) Program. (a) * * * (15) ‘‘Limited rights’’ means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government may reproduce, release, or disclose such data or authorize the use or reproduction of the data by persons outside the Government if— (i) The reproduction, release, disclosure, or use is— E:\FR\FM\22MYR1.SGM 22MYR1 pmangrum on DSK3VPTVN1PROD with RULES 30240 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations (A) Necessary for emergency repair and overhaul; or (B) A release or disclosure to— (1) A covered Government support contractor in performance of its covered Government support contracts for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive limited rights technical data; or (2) A foreign government, of technical data other than detailed manufacturing or process data, when use of such data by the foreign government is in the interest of the Government and is required for evaluational or informational purposes; (ii) The recipient of the technical data is subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and (iii) The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use. * * * * * (18) ‘‘Restricted rights’’ apply only to noncommercial computer software and mean the Government’s rights to— (i) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract; (ii) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause; (iii) Make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes; (iv) Modify computer software provided that the Government may— (A) Use the modified software only as provided in paragraphs (a)(18)(i) and (iii) of this clause; and (B) Not release or disclose the modified software except as provided in paragraphs (a)(18)(ii), (v), (vi), and (vii) of this clause; (v) Permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 necessary to respond to urgent tactical situations, provided that— (A) The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made; (B) Such contractors or subcontractors are subject to the non-disclosure agreement at 227.7103–7 of the Defense Federal Acquisition Regulation Supplement or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at 252.227–7025, Limitations on the Use or Disclosure of GovernmentFurnished Information Marked with Restrictive Legends; (C) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; and (D) Such use is subject to the limitations in paragraphs (a)(18)(i) through (iii) of this clause; (vi) Permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use the computer software when necessary to perform the repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that— (A) The intended recipient is subject to the non-disclosure agreement at 227.7103–7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at 252.227–7025, Limitations on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends; (B) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; and (C) Such use is subject to the limitations in paragraphs (a)(18)(i) through (iii) of this clause; and (vii) Permit covered Government support contractors in the performance of Government contracts that contain the clause at 252.227–7025, Limitations on the Use or Disclosure of GovernmentFurnished Information Marked with Restrictive Legends, to use, modify, reproduce, perform, display, or release or disclose the computer software to a person authorized to receive restricted PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 rights computer software, provided that— (A) The Government shall not permit the covered Government support contractor to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; and (B) Such use is subject to the limitations in paragraphs (a)(18)(i) through (iv) of this clause. (19) ‘‘SBIR data rights’’ means the Government’s rights during the SBIR data protection period (specified in paragraph (b)(4) of this clause) to use, modify, reproduce, release, perform, display, or disclose technical data or computer software generated a SBIR award as follows: (i) Limited rights in such SBIR technical data; and (ii) Restricted rights in such SBIR computer software. * * * * * (b) * * * (4) SBIR data rights. Except for technical data, including computer software documentation, or computer software in which the Government has unlimited rights under paragraph (b)(1) of this clause, the Government shall have SBIR data rights in all technical data or computer software generated under this contract during the period commencing with contract award and ending upon the date five years after completion of the project from which such data were generated. (5) Specifically negotiated license rights. The standard license rights granted to the Government under paragraphs (b)(1) through (b)(4) of this clause may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in technical data, including computer software documentation, than are enumerated in paragraph (a)(15) of this clause or lesser rights in computer software than are enumerated in paragraph (a)(18) of this clause. Any rights so negotiated shall be identified in a license agreement made part of this contract. (6) * * * (7) * * * (8) Covered Government support contractors. The Contractor acknowledges that— (i) Limited rights technical data and restricted rights computer software are authorized to be released or disclosed to covered Government support contractors; (ii) The Contractor will be notified of such release or disclosure; E:\FR\FM\22MYR1.SGM 22MYR1 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations (iii) The Contractor may require each such covered Government support contractor to enter into a non-disclosure agreement directly with the Contractor (or the party asserting restrictions as identified in a restrictive legend) regarding the covered Government support contractor’s use of such data or software, or alternatively that the Contractor (or party asserting restrictions) may waive in writing the requirement for a non-disclosure agreement; and (iv) Any such non-disclosure agreement shall address the restrictions on the covered Government support contractor’s use of the data or software as set forth in the clause at 252.227– 7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement. * * * * * 252.227–7025 [Amended] 11. Section 252.227–7025 is revised as follows: ■ 252.227–7025 Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. As prescribed in 227.7103–6(c), 227.7104(f)(1), or 227.7203–6(d), use the following clause: pmangrum on DSK3VPTVN1PROD with RULES Limitations on the Use or Disclosure of Government-Furnished Information Marked With Restrictive Legends (May 2013) (a)(1) For contracts in which the Government will furnish the Contractor with technical data, the terms ‘‘covered Government support contractor,’’ ‘‘limited rights,’’ and ‘‘Government purpose rights’’ are defined in the clause at 252.227–7013, Rights in Technical Data–Noncommercial Items. (2) For contracts in which the Government will furnish the Contractor with computer software or computer software documentation, the terms ‘‘covered Government support contractor,’’ ‘‘government purpose rights,’’ and ‘‘restricted rights’’ are defined in the clause at 252.227– 7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation. (3) For Small Business Innovation Research program contracts, the terms ‘‘covered Government support contractor,’’ ‘‘limited rights,’’ ‘‘restricted rights,’’ and ‘‘SBIR data rights’’ are defined in the clause at 252.227– 7018, Rights in Noncommercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program. VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 (b) Technical data or computer software provided to the Contractor as Governmentfurnished information (GFI) under this contract may be subject to restrictions on use, modification, reproduction, release, performance, display, or further disclosure. (1) GFI marked with limited rights, restricted rights, or SBIR data rights legends. (i) The Contractor shall use, modify, reproduce, perform, or display technical data received from the Government with limited rights legends, computer software received with restricted rights legends, or SBIR technical data or computer software received with SBIR data rights legends (during the SBIR data protection period) only in the performance of this contract. The Contractor shall not, without the express written permission of the party whose name appears in the legend, release or disclose such data or software to any unauthorized person. (ii) If the Contractor is a covered Government support contractor, the Contractor is also subject to the additional terms and conditions at paragraph (b)(5) of this clause (2) GFI marked with government purpose rights legends. The Contractor shall use technical data or computer software received from the Government with government purpose rights legends for government purposes only. The Contractor shall not, without the express written permission of the party whose name appears in the restrictive legend, use, modify, reproduce, release, perform, or display such data or software for any commercial purpose or disclose such data or software to a person other than its subcontractors, suppliers, or prospective subcontractors or suppliers, who require the data or software to submit offers for, or perform, contracts under this contract. Prior to disclosing the data or software, the Contractor shall require the persons to whom disclosure will be made to complete and sign the non-disclosure agreement at 227.7103–7. (3) GFI marked with specially negotiated license rights legends. (i) The Contractor shall use, modify, reproduce, release, perform, or display technical data or computer software received from the Government with specially negotiated license legends only as permitted in the license. Such data or software may not be released or disclosed to other persons unless permitted by the license and, prior to release or disclosure, the intended recipient has completed the non-disclosure agreement at 227.7103–7. The Contractor shall modify paragraph (1)(c) of the non-disclosure agreement to reflect the recipient’s obligations regarding use, modification, reproduction, release, performance, display, and disclosure of the data or software. (ii) If the Contractor is a covered Government support contractor, the Contractor may also be subject to some or all of the additional terms and conditions at paragraph (b)(5) of this clause, to the extent such terms and conditions are required by the specially negotiated license. (4) GFI technical data marked with commercial restrictive legends. (i) The Contractor shall use, modify, reproduce, perform, or display technical data that is or pertains to a commercial item and PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 30241 is received from the Government with a commercial restrictive legend (i.e., marked to indicate that such data are subject to use, modification, reproduction, release, performance, display, or disclosure restrictions) only in the performance of this contract. The Contractor shall not, without the express written permission of the party whose name appears in the legend, use the technical data to manufacture additional quantities of the commercial items, or release or disclose such data to any unauthorized person. (ii) If the Contractor is a covered Government support contractor, the Contractor is also subject to the additional terms and conditions at paragraph (b)(5) of this clause (5) Covered Government support contractors. If the Contractor is a covered Government support contractor receiving technical data or computer software marked with restrictive legends pursuant to paragraphs (b)(1)(ii), (b)(3)(ii), or (b)(4)(ii) of this clause, the Contractor further agrees and acknowledges that— (i) The technical data or computer software will be accessed and used for the sole purpose of furnishing independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of the program or effort to which such technical data or computer software relates, as stated in this contract, and shall not be used to compete for any Government or nonGovernment contract; (ii) The Contractor will take all reasonable steps to protect the technical data or computer software against any unauthorized release or disclosure; (iii) The Contractor will ensure that the party whose name appears in the legend is notified of the access or use within thirty (30) days of the Contractor’s access or use of such data or software; (iv) The Contractor will enter into a nondisclosure agreement with the party whose name appears in the legend, if required to do so by that party, and that any such nondisclosure agreement will implement the restrictions on the Contractor’s use of such data or software as set forth in this clause. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement; and (v) That a breach of these obligations or restrictions may subject the Contractor to— (A) Criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and (B) Civil actions for damages and other appropriate remedies by the party whose name appears in the legend. (c) Indemnification and creation of third party beneficiary rights. The Contractor agrees— (1) To indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses, arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure E:\FR\FM\22MYR1.SGM 22MYR1 30242 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations of technical data or computer software received from the Government with restrictive legends by the Contractor or any person to whom the Contractor has released or disclosed such data or software; and (2) That the party whose name appears on the restrictive legend, in addition to any other rights it may have, is a third party beneficiary who has the right of direct action against the Contractor, or any person to whom the Contractor has released or disclosed such data or software, for the unauthorized duplication, release, or disclosure of technical data or computer software subject to restrictive legends. (d) The Contractor shall ensure that its employees are subject to use and nondisclosure obligations consistent with this clause prior to the employees being provided access to or use of any GFI covered by this clause. [FR Doc. 2013–12055 Filed 5–21–13; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 120918468–3111–02] RIN 0648–XC675 Fisheries of the Economic Exclusive Zone Off Alaska; Deep-Water Species Fishery by Vessels Using Trawl Gear in the Gulf of Alaska National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. AGENCY: pmangrum on DSK3VPTVN1PROD with RULES SUMMARY: NMFS is prohibiting directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska (GOA). This action is necessary because VerDate Mar<15>2010 14:58 May 21, 2013 Jkt 229001 the second seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA has been reached. DATES: Effective 1200 hours, Alaska local time (A.l.t.), May 18, 2013, through 1200 hours, A.l.t., July 1, 2013. FOR FURTHER INFORMATION CONTACT: Obren Davis, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the MagnusonStevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The second seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA is 296 metric tons as established by the final 2013 and 2014 harvest specifications for groundfish of the GOA (78 FR 13162, February 26, 2013), for the period 1200 hours, A.l.t., April 1, 2013, through 1200 hours, A.l.t., July 1, 2013. In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the second seasonal apportionment of the Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deepwater species fishery include sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder. This closure does not apply to fishing by vessels participating in the cooperative fishery PO 00000 Frm 00046 Fmt 4700 Sfmt 9990 in the Rockfish Program for the Central GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the deep-water species fishery by vessels using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 16, 2013. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.21 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 et seq. Dated: May 17, 2013. Kara Meckley, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2013–12195 Filed 5–17–13; 4:15 pm] BILLING CODE 3510–22–P E:\FR\FM\22MYR1.SGM 22MYR1

Agencies

[Federal Register Volume 78, Number 99 (Wednesday, May 22, 2013)]
[Rules and Regulations]
[Pages 30233-30242]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12055]



[[Page 30233]]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 209, 227, and 252

RIN Number 0750-AG38


Defense Federal Acquisition Regulation Supplement; Government 
Support Contractor Access to Technical Data (DFARS 2009-D031)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement a section of the National Defense Authorization Act for 
Fiscal Year 2010 that provides authority for certain types of 
Government support contractors to have access to proprietary technical 
data belonging to prime contractors and other third parties, provided 
that the technical data owner may require the support contractor to 
execute a non-disclosure agreement having certain restrictions and 
remedies.

DATES: Effective: May 22, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, 571-372-6099.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published an interim rule in the Federal Register at 76 FR 
11363 on March 2, 2011, to implement section 821 of the National 
Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), 
enacted October 28, 2009. Section 821 provides authority for certain 
types of Government support contractors to have access to proprietary 
technical data belonging to prime contractors and other third parties, 
provided that the technical data owner may require the support 
contractor to execute a non-disclosure agreement having certain 
restrictions and remedies.
    The DFARS scheme for acquiring rights in technical data is based on 
10 U.S.C. 2320 and 2321. Section 2320 establishes the basic allocation 
of rights in technical data, and provides, among other things, that a 
private party is entitled to restrict the Government's rights to 
release or disclose privately developed technical data outside the 
Government. This restriction is implemented in the DFARS as the 
``limited rights'' license, which essentially limits the Government's 
use of such data only for in-house use and which does not include 
release to Government support contractors.
    Historically, the statutorily based scheme has included only two 
categorical exceptions to the basic nondisclosure requirements for such 
privately developed data:
     A ``type'' exception, in which the Government is granted 
unlimited rights in certain types of ``top-level'' data that are not 
treated as proprietary (e.g., form, fit, and function data; data 
necessary for operation, maintenance, installation, or training; 
publicly available data) (2320(a)(2)(C)); and
     A ``special needs'' exception for certain important 
Government activities that are considered critical to Government 
operations (e.g., emergency repair and overhaul; evaluation by a 
foreign government), and are allowed only when the recipient of the 
data is made subject to strict nondisclosure restrictions on any 
further release of the data. (2320(a)(2)(D))
    Section 821 amends 10 U.S.C. 2320 to add a third statutory 
exception to the prohibition on release of privately developed data 
outside the Government, allowing a covered Government support 
contractor access to and use of any technical data delivered under a 
contract for the sole purpose of furnishing independent and impartial 
advice or technical assistance directly to the Government in support of 
the Government's management and oversight of the program or effort to 
which such technical data relates. The statute also provides a 
definition of ``covered Government support contractor.''
    Four respondents submitted public comments in response to the 
interim rule.

II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final 
rule. A discussion of the comments and the changes made to the rule as 
a result of those comments are provided as follows:

A. Summary of Significant Changes

    1. DoD has revised DFARS 227.7104(b) and the definition of ``Small 
Business Innovation Research (SBIR) data rights'' to clarify the 
Government's limited rights in technical data and restricted rights in 
computer software under the SBIR data rights license obtained under the 
clause at 252.227-7018.
    2. DoD has deleted the requirement that the covered Government 
support contractor provide copies of any non-disclosure agreements 
(NDAs) executed with proprietary information owners, upon request of 
the Contracting Officer (see 209.505-4, 252.227-7013(b)(3)(iv)(E), 
252.227-7014(b)(3)(iii)(E), 252.227-7015(b)(3)(v), 252.227-
7018(b)(8)(v), 252.227-7025(b)(1)(ii)(E), and 252.227-
7025(b)(4)(ii)(E)). This is not a statutory requirement, and the 
benefit to the Government in collecting these copies is outweighed by 
the administrative burden.

B. Analysis of Public Comments

1. Non-Disclosure Agreements (NDAs)
a. Timing of NDA
    Comment: Two respondents suggested that proprietary information 
should not be disclosed to support contractors until after the owner is 
given notice an NDA is executed. The respondents stated that if the 
Government allows access to the proprietary information without an NDA 
in place, then the proprietary information owner ``loses the 
opportunity to enforce its rights'' and the covered Government support 
contractor would no longer be motivated to enter into an NDA.
    DoD Response: A covered Government support contractor may not 
receive access to proprietary information in the absence of appropriate 
legally binding non-disclosure obligations. The Government's contract 
with a covered Government support contractor must always contain the 
clause at 252.227-7025, which places legally binding use and non-
disclosure restrictions on the covered Government support contractor 
before it has access to any proprietary information. In addition, 
252.227-7025(c) expressly confirms that the owner of the proprietary 
information is a third-party beneficiary of those use and non-
disclosure obligations and has a direct cause of action against the 
covered Government support contractor for any breach of those 
obligations. Thus, the covered Government support contractor cannot 
receive any such proprietary information unless and until it is already 
subject to, at a minimum, the legally binding use and nondisclosure 
obligations of the clause at 252.227-7025, which also subjects the 
covered Government support contractor to a direct cause of action by 
the proprietary information owner.
b. Use and Non-Disclosure Agreement (DFARS 227.7103-7)
    Comment: One respondent suggested that in addition to allowing a 
Contractor to enter an NDA with the covered Government support 
contractor or to

[[Page 30234]]

waive its right to an NDA, the contractor should be allowed, 
alternatively, to require the covered Government support contractor to 
execute the Use and Non-Disclosure Agreement in 227.7103-7.
    DoD Response: The Use and Non-Disclosure Agreement at 227.7103-7 is 
an agreement between the Government and a private party, and is used 
only when the information is being provided to the private party 
outside of a contract that contains the clause at 252.227-7025. When 
the receiving party is a covered Government support contractor, then, 
by definition, the contract under which the information is being 
provided must contain the clause at 252.227-7025--or else the receiving 
contractor cannot qualify as a covered Government support contractor 
and would not be authorized to receive the proprietary information for 
that contract performance. Thus, in these cases, the clause at 252.227-
7025 is already applicable and the NDA at 227.7103-7 is not to be used. 
Moreover, the 227.7103-7 NDA would be insufficient because it does not 
address the specialized restrictions for covered Government support 
contractors--because those restrictions are fully implemented in the 
clause at 252.227-7025, which must be in the contract in order for the 
recipient to qualify to receive the information as a covered Government 
support contractor.
c. Non-Disclosure Agreements That Exceed the Terms and Conditions of 
DFARS 252.227-7025
    Comment: Two respondents suggested that the requirement, in the NDA 
between the contractor and the covered Government support contractor, 
prohibiting any additional terms and conditions over those present in 
252.227-7025 without mutual agreement of the parties, would cause 
covered Government support contractors to ``balk'' at signing industry 
standard NDAs which most often include terms and conditions that are 
not included in 252.227-7025, and that the restrictions set forth in 
the clause ``do not make a legally sufficient document''. The 
respondents suggested removing the prohibition by providing language 
allowing additional terms and conditions.
    One respondent also noted that an example of a restriction that is 
not included in the clause at 252.227-7025 but that is ``particularly 
important for enforcement'' of the proprietary information owner's 
rights, would be a requirement for the covered Government support 
contractor to have its employees sign individual NDAs containing 
materially similar terms.
    DoD Response: Regarding the legal sufficiency and effect of 
252.227-7025, that clause unequivocally establishes a legally 
sufficient and binding obligation on the recipient of the information, 
which expressly includes all of the restrictions provided in the 
statutory language, and which expressly affirms that the proprietary 
information owner is a third-party beneficiary of those clause 
obligations and thereby has a direct cause of action against the 
recipient of the proprietary information for any breach of those 
obligations. Additionally, the clause at 252.227-7025 requires that any 
such direct NDA between the covered Government support contractor and 
the proprietary information owner will ``implement'' the requirements 
of the clause at 252.227-7025, which would require, at a minimum, terms 
and conditions that are necessary to establish a legally sufficient NDA 
that covers all of the restrictions and obligations contained in the 
clause at 252.227-7025. Beyond those minimums, the parties are also 
free to negotiate for any additional terms and conditions by mutual 
agreement, but neither party can require the other to agree to a term 
or condition that is outside of those necessary to implement the 
252.227-7025 requirements (which fully implement the statutory 
requirements).
    DoD agrees with the respondent's suggestion that it is important to 
require the covered Government support contractor to ensure that its 
employees are subject to appropriate non-disclosure obligations, and 
observes that the obligations on the recipient contractor in the clause 
at 252.227-7025 do, in fact, create an obligation for that contractor 
to ensure that it implements the use and nondisclosure restrictions 
appropriately in the performance of its contractual duties, which would 
necessarily include ensuring that its employees who will have access or 
use of the proprietary information are subject to the applicable use 
and nondisclosure restrictions. However, to the extent that this may be 
viewed as an implicit obligation of the clause at 252.227-7025, and 
thus potentially could be overlooked or less than fully understood, 
such ambiguity must be eliminated. Accordingly, DoD has added a new 
paragraph (d) to 252.227-7025 to explicitly require the recipient 
contractor to ensure that its employees are subject to use and non-
disclosure obligations prior to the employees being provided access to 
or use of the proprietary information.
d. Performance Assessments and Root Cause Analysis (PARCA) Activities
    Comment: One respondent suggested that DoD's Performance 
Assessments and Root Cause Analysis (PARCA) activities related to 
utilizing a ``master NDA'' between the Government and support 
contractors to cover third-party proprietary earned value management 
data (wherein the data owner is a third-party beneficiary of the master 
NDA) may be inconsistent with the approach in this rule (i.e., which 
provides for individual ``direct'' NDAs between the support contractor 
and the proprietary information owner), and recommends internal DoD 
coordination to eliminate inconsistencies. The respondent acknowledged 
that although such earned value management data largely involves 
``proprietary financial, business, and contract performance data and 
not Limited Rights Technical Data or Restricted Rights Software, it 
would be most beneficial to ensure consistency in the processes for 
disclosing both types of data.''
    DoD Response: This rule requires the use of the clause at 252.227-
7025 with all covered Government support contractors, which serves as a 
form of ``master NDA'' between the Government and the support 
contractor, in which the proprietary information owner is a third-party 
beneficiary of that NDA and thereby has a direct cause of action 
against the support contractor for any breach of the NDA requirements. 
However, as noted by the respondent, earned value management data does 
not include limited rights technical data or restricted rights computer 
software, and thus the PARCA efforts are outside the scope of this 
rule, as well as the underlying statutory obligations regarding a 
direct NDA between a covered Government support contractor and the 
proprietary information owner.
2. Notification Requirements
    Comment: One respondent suggested that a covered Government support 
contractor should be obligated to notify the proprietary information 
owner upon first access to the proprietary information and annually 
thereafter.
    DoD Response: The interim rule placed a direct obligation on the 
covered Government support contractor to notify the proprietary 
information owner upon first access to the proprietary information.
    DoD has added at 252.227-7025(b)(5)(iii) a requirement to provide a 
thirty (30) day period within which the covered Government support 
contractor must notify the Contractor of the release or disclosure of 
the

[[Page 30235]]

Contractor's limited rights data to the covered Government support 
contractor. The thirty (30) day period will provide a reasonable time 
for notification.
    The recommended annual notification requirement would place an 
onerous administrative burden on the covered Government support 
contractor. Accordingly, the final rule does not require an annual 
notification.
3. Use and Release Conditions
    Comment: One respondent suggested that the use and release 
conditions that a covered Government support contractor must agree to, 
as set forth in 10 U.S.C. 2320 (f)(2)(A)-(E), be added to the 
definition of ``covered Government support contractor'' at 252.227-
7013(a)(5)(ii), 252.227-7014(a)(6)(ii), 252.227-7015(a)(2)(ii), and 
252.227-7018(a)(6)(ii).
    DoD Response: These conditions are present in, and applied to all 
covered Government support contractors, at paragraph (b)(5) of 252.227-
7025, which is a required clause for all contracts when it is 
anticipated that the Government will provide the contractor, for 
performance of its contract, technical data marked with another 
contractor's restrictive legend(s) (see clause prescriptions at 
227.7103-6 (c), 227.7104(f)(1) and 227.7203-6(d)). A support contractor 
cannot qualify as a covered Government support contractor unless it 
meets the definition of a ``covered Government support contractor,'' 
which requires that the clause at 252.227-7025 be included in the 
covered Government support contractor's contract and thereby applies 
all of the cited restrictions to the covered Government support 
contractor's use of the relevant data or software to perform that 
contract. This structure was used to include the substance of the 
applicable use and release conditions within the clause that serves to 
apply the restrictions to contractors of any and all types, including 
covered Government support contractors that are receiving such 
Government-furnished information (GFI). Thus, these restrictions are 
included in the definition of ``covered Government support contractor'' 
by cross-reference.
4. Access and Use Restrictions
a. Clarification
    Comment: One respondent suggested that the rule should clarify the 
access and use restrictions on a covered Government support contractor 
by expressly citing the statutory purpose limitation of ``for the sole 
purpose of furnishing independent and impartial advice or technical 
assistance directly to the Government in support of the Government's 
management and oversight of the program or effort to which such 
[proprietary information] relates'' in the definitions of ``limited 
rights'' and ``restricted rights'' at DFARS 252.227-
7013(a)(14)(i)(B)(1), 252.227-7014(a)(15)(vii), -7018(a)(15)(i)(B)(1), 
and 252.227-7018(a)(18)(vii), and in the corresponding limitations on 
the covered Government support contractor's access and use of such 
information at 252.227-7025(b)(5)(i).
    DoD Response: The statutory purpose restrictions on the covered 
Government support contractor's access and use of such proprietary 
information are expressly incorporated at 252.227-7025(b)(5)(i) into 
the access and use restrictions on a covered Government support 
contractor for limited rights technical data and restricted rights 
computer software, and also for technical data related to commercial 
items.
    However, DoD has clarified the definitions of ``limited rights'' 
and ``restricted rights'' to specify that the Government's authorized 
release to a covered Government support contractor is in the 
performance of a covered Government support contract (which necessarily 
contains the clause at 252.227-7025). Thus no further revisions are 
necessary. This structure was used to include the substance of the 
applicable use and release conditions within the clause that serves to 
apply the restrictions to the covered Government support contractors.
b. Covered Government Support Contractors' ``Access and Use'' of 
Proprietary Data
    Comment: One respondent noted that the statute authorizes covered 
Government support contractors only to ``access and use'' the third 
party proprietary data, and suggested the deletion of the additional 
terms ``modify, reproduce, perform, display, release or disclose'' (or 
corresponding terms ``modification, reproduction, performance, display, 
release or disclose'') in several sections of the rule (e.g., 252.227-
7013(a)(14)(i)(B)(1), 252.227-7014(a)(15)(vii), 252.227-
7018(a)(15)(i)(B)(1) and (a)(18)(vii), and 252.227-7025(b)(4)(ii)(A)).
    DoD Response: Independently of the subject matter of this rule, the 
statutory language at 10 U.S.C. 2320 and 2321 refer to a limited set of 
regulated activities relating to technical data (e.g., ``use'' and 
``release'') However, in the detailed implementation of the statutory 
scheme, the DFARS utilizes a more complete set of verbs (e.g., ``use, 
modify, reproduce, modify, perform, display, release or disclose'') to 
ensure that all relevant activities are covered, including recognizing 
the inherent elements of a generic ``use'' that are expressly 
distinguished in the U.S. copyright laws (see, e.g., 17 U.S.C. 106). 
The rule uses this more complete and detailed set of verbs to be 
consistent with long-standing conventions in implementing these 
statutory requirements. In addition, all of the covered activities are 
subject to the numerous restrictions and safeguards that are 
implemented to protect the interests of the owner of the proprietary 
data.
5. Authorized Person
    Comment: Two respondents noted that in the definitions of ``limited 
rights'' and ``restricted rights'' the covered Government support 
contractor is authorized to release the proprietary information to an 
``authorized person'' in performing the covered Government support 
contractor's contract (see DFARS 252.227-7013(a)(14)(i)(B)(1), 252.227-
7014(a)(15)(vii) and 252.227-7018(a)(15)(i)(B)(1)). The respondents 
suggested that the term ``authorized person'' be defined to ``limit the 
support contractor's right to release or disclose--to within the 
support contractor's organization, and only for the performance of the 
support contract'' or ``only to the Government, the contractor that 
owns the proprietary data, or parties the support contractor has 
confirmed have entered a non-disclosure agreement, license, 
subcontract, or other agreement giving the owning parties' permission 
for such disclosure.''
    DoD Response: To make the reference to ``authorized person'' more 
clear, DoD has replaced the reference to an ``authorized person'' that 
was used in the interim rule definitions of ``limited rights'' and 
``restricted rights'' with the more definitive and accurate phrases ``a 
person authorized to receive limited rights technical data'' and ``a 
person authorized to receive restricted rights computer software,'' 
respectively.
6. Definition of ``Restricted Rights''
    Comment: One respondent noted that the rule makes revisions to the 
coverage for restricted rights noncommercial computer software that are 
analogous to the revisions for limited rights technical data, but 
recommends revisions to recognize certain important differences between 
restricted rights computer software and limited rights technical data 
(e.g., that the Government's rights to use and reproduce restricted 
rights software are proscribed differently and

[[Page 30236]]

to a greater extent than for limited rights technical data). The 
respondent recommends revisions to ensure that the covered Government 
support contractor's authorized use of restricted rights software is 
subject to all of the restrictions that apply to the Government's use 
(while retaining the additional restrictions that further restrict the 
covered Government support contractor's activities).
    DoD Response: DoD has revised the definition of ``restricted 
rights'' to address the concerns raised by the respondent, ensuring 
that the covered Government support contractor's authorized uses are no 
greater than the uses authorized for the Government (see 252.227-
7014(a)(15)(v)(D), (vi)(C), and (vii); and 252.227-7018(a)(18)(iv)(B), 
(v)(D), (vi)(C), and (vii)).
7. Covered Government Support Contractor Organizational Conflict of 
Interest
    Comment: One respondent noted that the rule covers situations in 
which a covered Government support contractor could be in competition 
with a contractor-owner of proprietary data by prohibiting the support 
contractor from using that data to compete for any contracts, but this 
does not cover a support contractor that may not be considered to be in 
competition, but that would have access to such proprietary information 
in the course of advising the Government on overall acquisition 
strategies. The respondent recommends that the rule be revised to 
specifically prohibit such a support contractor from using the data to 
advise the Government on acquisition strategies or overall strategies 
in way that would benefit the support contractor.
    One respondent commented that the interim rule seemed to conflict 
with DoD guidance regarding organizational conflicts of interest, 
observing that one part of a large defense contractor might provide 
Government support contracting services thus creating opportunities for 
that contractor to obtain proprietary data of competitors. The 
respondent stated that only in limited circumstances on a case-by-case 
basis should support contractors be looking at proprietary information 
from other contractors and noted that a more appropriate solution might 
be to reduce DoD dependence on contractors.
    DoD Response: Independently of this rule, the organizational 
conflict of interest rules restrict a support contractor, including a 
covered Government support contractor, from advising the Government on 
acquisition strategies or overall strategies, or any other matter, in 
which the support contractor would have a financial or other interest 
(i.e., that would qualify as an organizational conflict of interest). 
Those prohibitions and restrictions apply regardless of whether the 
advising support contractor would have access to any third party 
proprietary data in the course of such advising. This rule supplements 
those existing organizational conflict of interest restrictions by 
adding layers of restriction, and additional safeguards, to ensure that 
any covered Government support contractor's access to a third party 
proprietary data does not result in any competitive harm to the third 
party data owner.
    The rule implements the statutory prohibition against covered 
Government support contractors having affiliations with the prime and 
first-tier subs, or any direct competitor of the prime or such first-
tier sub and reflects the policy determinations inherent in the 
statute. Alteration of DoD policy regarding the extent of DoD reliance 
on contractors is beyond the scope of rulemaking for this statutory 
implementation.
8. Lower-Tier Subcontractor Affiliations
    Comment: One respondent commented that the definition of ``covered 
Government support contractor'' is limited to preclude affiliation only 
with the prime and first-tier subcontractors on the relevant 
program(s), and suggested that support contractors that are not covered 
by the rule can have affiliations to lower-tier subcontractors and 
would not be subject to the requirement to sign the direct NDA. The 
respondent suggested that the rule should be amended to bring such 
support contractors under the requirement to sign the direct NDA.
    DoD Response: The prohibition against covered Government support 
contractors having affiliations with the prime and first-tier 
subcontractors is a substantive limitation from the statutory 
definition of ``covered Government support contractor.'' Changing the 
scope of the definition to prohibit affiliations at lower tiers would 
narrow the scope of the definition of ``covered Government support 
contractor'' in a manner that is inconsistent with the statute. The 
statutory scheme permits affiliations at lower tiers, but established 
numerous restrictions and protections to ensure that the covered 
Government support contractor's access to proprietary information does 
not result in competitive harm. This scheme is reinforced in all cases 
by the rules and restrictions against organizational conflicts of 
interest. Thus, a support contractor with affiliations at lower tiers 
may still qualify as a covered Government support contractor if it 
meets all other definitional criteria (see 252.227-7013(a)(5), 252.227-
7014(a)(6), 252.227-7015(a)(2), and 252.227-7018(a)(6)), but in all 
such cases the covered Government support contractor would be subject 
to the obligations regarding direct NDAs (see 252.227-
7025(b)(1)(ii)(D), (b)(4)(ii)(D), and (d)). If a support contractor is 
not covered by the rule (i.e., does not meet the definition of 
``covered Government support contractor''), then that support 
contractor would not be subject to that direct NDA requirement, but 
that is because the support contractor would not be authorized to 
receive the proprietary information as a covered Government support 
contractor in the first place. It is impossible under this rule for a 
covered Government support contractor to be authorized to receive such 
proprietary information and not to be subject to the obligations 
regarding direct NDAs.
9. DFARS Coverage at 209.5
    Comment: One respondent commented that it was not clear if the 
language of DFARS 209.505-4(b) of the interim rule was meant to be a 
replacement or supplement for FAR 9.505-4(b). The respondent also 
commented that DFARS 209.505-4(b) covers all proprietary information, 
whereas the revisions to 10 U.S.C. 2320 cover only technical data and 
the proposed revisions cover both cases.
    DoD Response: The DFARS text at 209.505-4(b) addresses DoD-specific 
requirements and procedures applicable only to third party proprietary 
technical data and computer software being accessed by DoD contractors, 
including covered Government support contractors, which provides 
specific coverage for a subset of the more generic coverage in the FAR. 
In DoD, the unmodified FAR coverage still applies to DoD contractors 
accessing other types of proprietary information in the performance of 
their contracts. The numbering is consistent with DFARS drafting 
conventions.
10. Commercial Restrictive Legend
    Comment: With respect to DFARS 252.227-7025(b)(4)(i), one 
respondent commented that there is no requirement for a commercial 
restrictive legend in 10 U.S.C. 2320 or DFARS 252.227-7015, nor is that 
term defined in the interim rule. The respondent suggested deletion of 
all references to a commercial restrictive legend.
    DoD Response: It is correct that neither 10 U.S.C. 2320 nor DFARS 
252.227-7015 provides the specific

[[Page 30237]]

form, content, or format for a restrictive legend on technical data 
related to commercial items (or technical data that is a commercial 
item). However, in accordance with 252.227-7015(d), the Government, and 
other persons to whom the Government may have released or disclosed 
technical data delivered or otherwise furnished under a contract, shall 
have no liability for any release or disclosure of technical data that 
are not ``marked to indicate that such data are licensed data subject 
to use, modification, reproduction, release, performance, display, or 
disclosure restrictions.'' In addition, although not included as a 
separate definition in the paragraph (a) definitions section of the 
clause at 252.227-7025, the reference to ``commercial restrictive 
legend'' is defined parenthetically at 252.227-7025(b)(4)(i) as 
``(i.e., marked to indicate that such data are subject to use, 
modification, reproduction, release, performance, display, or 
disclosure restrictions).''
11. Technical Correction
    Comment: One respondent commented that in the interim rule, the 
definitions of ``limited rights,'' ``restricted rights,'' and 
``government purpose rights'' were renumbered in DFARS 252.227-7013(a) 
and 252.227-7014(a), but the renumbering was not accommodated in 
252.227-7013(b)(4) and 252.227-7014(b)(4) in an apparent drafting 
error. This had the effect of making government purpose rights the 
minimum rights that must be provided to the Government in Specially 
Negotiated License Rights.
    DoD Response: The respondent is correct. DoD issued a technical 
amendment on February 24, 2012, to correct the text of 252.227-
7013(b)(4) and (b)(6), and 252.227-7014(b)(4) and (b)(6) to refer 
respectively to 252.227-7013(a)(14) (limited rights) and 252.227-
7014(a)(15) (restricted rights) (see 77 FR 10976). DoD also corrected 
paragraph references in 252.227-7013(b)(2)(i)(A).

B. Other changes

    1. Conforming changes are made to paragraphs (b)(20), (b)(21), 
(c)(2) and (c)(3) of the clause at 252.212-7001, ``Contract Terms and 
Conditions Required to Implement Statutes or Executive Orders 
Applicable to Defense Acquisitions of Commercial Items,'' to update the 
cross-references to the clauses modified by this final rule.
    2. 252.227-7025(b)(1)(ii) and 252.227-7025(b)(4)(ii) now reference 
a new paragraph (b)(5), to avoid repetition of the restrictions in each 
location. The restrictions regarding GFI marked with limited or 
restricted rights legends and GFI marked with commercial restrictive 
legends respectively are revised for clarity.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review by the Office of Information and Regulatory Affairs 
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD has prepared a final regulatory flexibility analysis consistent 
with 5 U.S.C. 603. A copy of the analysis may be obtained from the 
point of contact specified herein. The analysis is summarized as 
follows:
    This rule amends the Defense Federal Acquisition Regulation 
Supplement DFARS) to implement section 821 of the National Defense 
Authorization Act for Fiscal Year 2010. Section 821 provides authority 
for certain types of Government support contractors to have access to 
proprietary technical data belonging to prime contractors and other 
third parties, provided that the technical data owner may require the 
support contractor to execute a non-disclosure agreement having certain 
restrictions and remedies.
    No public comments were received in response to the initial 
regulatory flexibility analysis.
    No comments were received from the Chief Counsel for Advocacy of 
the Small Business Administration in response to the rule. The rule 
affects small businesses that are Government support contractors that 
need access to proprietary technical data or computer software 
belonging to prime contractors and other third parties. It will also 
affect any small business that is the owner of ``limited rights'' 
technical data or restricted rights computer software in the possession 
of the Government to which the support contractor will require access.
    The rule imposes no reporting, recordkeeping, or other information 
collection requirements. However, the statute provides that the support 
contractor must be willing to sign a nondisclosure agreement with the 
owner of the data. The rule has implemented this requirement in a way 
that preserves maximum flexibility for the private parties to reach 
mutual agreement without unnecessary interference from the Government. 
To reduce burdens, the rule permits the owner of the data to waive the 
requirement for a nondisclosure agreement, since the Government clauses 
already adequately deal with non-disclosure. Further, the rule provides 
that the support contractors cannot be required to agree to any 
conditions not required by statute. In the final rule, DoD has deleted 
the requirement to provide a copy of the non-disclosure agreement or 
waiver to the contracting officer, upon request.
    Other than the alternatives already addressed, there are no known 
significant alternatives to the rule that would meet the requirements 
of the statute and minimize any significant economic impact of the rule 
on small entities. The impact of this rule on small business is not 
expected to be significant because the execution of a non-disclosure 
agreement is not likely to have a significant cost or administrative 
impact.

V. Paperwork Reduction Act

    The rule imposes no new reporting, recordkeeping, or other 
information collection requirements. DFARS clauses 252.227-7013, 
252.227-7014, 252.227-7015, and 252.227-7025 contain reporting or 
recordkeeping requirements that require the approval of the Office of 
Management and Budget under 44 U.S.C. chapter 35. However, these 
clauses are already covered by an approved OMB control number 0704-0369 
in the amount of approximately 1.76 million hours.

List of Subjects in 48 CFR Parts 209, 227, and 252

    Government procurement.

Kortnee Stewart,
Editor, Defense Acquisition Regulations System

    Therefore, DoD amends 48 CFR parts 209, 227, and 252 as follows:

0
1. The authority citation for parts 209 and 252 continues to read as 
follows:

    Authority:  41 U.S.C. 1303 and 48 CFR Chapter 1.

[[Page 30238]]

PART 209--CONTRACTOR QUALIFICATIONS

0
2. Section 209.505-4 is revised to read as follows:


209.505-4   Obtaining access to proprietary information.

    (b) For contractors accessing third party proprietary technical 
data or computer software, non-disclosure requirements are addressed at 
227.7103-7(b), through use of the clause at 252.227-7025 as prescribed 
at 227.7103-6(c) and 227.7203-6(d). Pursuant to that clause, covered 
Government support contractors may be required to enter into non-
disclosure agreements directly with the third party asserting 
restrictions on limited rights technical data, commercial technical 
data, or restricted rights computer software. The contracting officer 
is not required to obtain copies of these agreements or to ensure that 
they are properly executed.

PART 227--PATENTS, DATA, AND COPYRIGHTS

0
3. The authority citation for Part 227 is amended by removing citation 
``41 U.S.C. 421 and 48 CFR Chapter 1'' and adding citation ``41 U.S.C. 
1303 and 48 CFR Chapter 1'' in its place.


227.7103-5   [Amended]

0
4. Section 227.7103-5 paragraph (c)(2) is amended by inserting a comma 
after the word ``release''.

0
5. Section 227.7104 is amended by revising paragraph (b) and (c) to 
read as follows:


227.7104   Contracts under the Small Business Innovation Research 
(SBIR) Program.

    (a) * * *
    (b) Under the clause at 252.227-7018, the Government obtains SBIR 
data rights in technical data and computer software generated under the 
contract and marked with the SBIR data rights legend. SBIR data rights 
provide the Government limited rights in such technical data and 
restricted rights in such computer software during the SBIR data 
protection period commencing with contract award and ending five years 
after completion of the project under which the data were generated. 
Upon expiration of the five-year restrictive license, the Government 
has unlimited rights in the SBIR technical data and computer software.
    (c) During the SBIR data protection period, the Government may not 
release or disclose SBIR technical data or computer software to any 
person except as authorized for limited rights technical data or 
restricted rights computer software, respectively.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.212-7001   [Amended]

0
6. Section 252.212-7001 is amended--
0
a. By removing the clause date ``(FEB 2013)'' and adding ``(MAY 2013)'' 
in its place;
0
b. In paragraph (b)(20), by removing the clause date ``(FEB 2012)'' and 
adding ``(MAY 2013)'' in its place;
0
c. In paragraph (b)(21), by removing the clause date ``(DEC 2011)'' and 
adding ``(MAY 2013)'' in its place;
0
d. In paragraph (c)(2,) by removing the clause date ``(FEB 2012)'' and 
adding ``(MAY 2013)'' in its place; and
0
e. In paragraph (c)(3,) by removing the clause date ``(DEC 2011)'' and 
adding ``(MAY 2013)'' in its place.


252.227-7013   [Amended]

0
7. Section 252.227-7013 is amended--
0
a. By removing the clause date ``(FEB 2012)'' and adding ``(MAY 2013)'' 
in its place;
0
b. By revising paragraph (a)(14)(i)(B)(1); and (b)(3)(iv) to read as 
follows:


252.227-7013   Rights in Technical Data--Noncommercial Items.

* * * * *
    (a) * * *
    (14) * * *
    (i) * * *
    (B) A release or disclosure to--
    (1) A covered Government support contractor in performance of its 
covered Government support contract for use, modification, 
reproduction, performance, display, or release or disclosure to a 
person authorized to receive limited rights technical data; or
* * * * *
    (b) * * *
    (3) * * *
    (iv) The Contractor acknowledges that--
    (A) Limited rights data are authorized to be released or disclosed 
to covered Government support contractors;
    (B) The Contractor will be notified of such release or disclosure;
    (C) The Contractor (or the party asserting restrictions as 
identified in the limited rights legend) may require each such covered 
Government support contractor to enter into a non-disclosure agreement 
directly with the Contractor (or the party asserting restrictions) 
regarding the covered Government support contractor's use of such data, 
or alternatively, that the Contractor (or party asserting restrictions) 
may waive in writing the requirement for a non-disclosure agreement; 
and
    (D) Any such non-disclosure agreement shall address the 
restrictions on the covered Government support contractor's use of the 
limited rights data as set forth in the clause at 252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished 
Information Marked with Restrictive Legends. The non-disclosure 
agreement shall not include any additional terms and conditions unless 
mutually agreed to by the parties to the non-disclosure agreement.
* * * * *


252.227-7014  [Amended]

0
8. Section 252.227-7014 is amended--
0
a. By removing the clause date ``(FEB 2012)'' and adding ``(MAY 2013)'' 
in its place;
0
b. By revising paragraph (a)(15); and (a)(16)(b)(iii) to read as 
follows:


252.227-7014  Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.

* * * * *
    (a) * * *
    (15) ``Restricted rights'' apply only to noncommercial computer 
software and mean the Government's rights to--
    (i) Use a computer program with one computer at one time. The 
program may not be accessed by more than one terminal or central 
processing unit or time shared unless otherwise permitted by this 
contract;
    (ii) Transfer a computer program to another Government agency 
without the further permission of the Contractor if the transferor 
destroys all copies of the program and related computer software 
documentation in its possession and notifies the licensor of the 
transfer. Transferred programs remain subject to the provisions of this 
clause;
    (iii) Make the minimum number of copies of the computer software 
required for safekeeping (archive), backup, or modification purposes;
    (iv) Modify computer software provided that the Government may--
    (A) Use the modified software only as provided in paragraphs 
(a)(15)(i) and (iii) of this clause; and
    (B) Not release or disclose the modified software except as 
provided in paragraphs (a)(15)(ii), (v), (vi) and (vii) of this clause;
    (v) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) in support 
of

[[Page 30239]]

this or a related contract to use computer software to diagnose and 
correct deficiencies in a computer program, to modify computer software 
to enable a computer program to be combined with, adapted to, or merged 
with other computer programs or when necessary to respond to urgent 
tactical situations, provided that--
    (A) The Government notifies the party which has granted restricted 
rights that a release or disclosure to particular contractors or 
subcontractors was made;
    (B) Such contractors or subcontractors are subject to the use and 
non-disclosure agreement at 227.7103-7 of the Defense Federal 
Acquisition Regulation Supplement (DFARS) or are Government contractors 
receiving access to the software for performance of a Government 
contract that contains the clause at DFARS 252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends;
    (C) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(15)(iv) of this clause, for any other 
purpose; and
    (D) Such use is subject to the limitations in paragraphs (a)(15)(i) 
through (iii) of this clause;
    (vi) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under this 
or a related contract to use the computer software when necessary to 
perform the repairs or overhaul, or to modify the computer software to 
reflect the repairs or overhaul made, provided that--
    (A) The intended recipient is subject to the use and non-disclosure 
agreement at DFARS 227.7103-7 or is a Government contractor receiving 
access to the software for performance of a Government contract that 
contains the clause at DFARS 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends;
    (B) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(15)(iv) of this clause, for any other 
purpose; and
    (C) Such use is subject to the limitations in paragraphs (a)(15)(i) 
through (iii) of this clause; and
    (vii) Permit covered Government support contractors in the 
performance of covered Government support contracts that contain the 
clause at 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends, to 
use, modify, reproduce, perform, display, or release or disclose the 
computer software to a person authorized to receive restricted rights 
computer software, provided that--
    (A) The Government shall not permit the covered Government support 
contractor to decompile, disassemble, or reverse engineer the software, 
or use software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (a)(15)(iv) of this clause, for any 
other purpose; and
    (B) Such use is subject to the limitations in paragraphs (a)(15)(i) 
through (iv) of this clause.
    (16) * * *
    (b) * * *
    (3) * * *
    (iii) The Contractor acknowledges that--
    (A) Restricted rights computer software is authorized to be 
released or disclosed to covered Government support contractors;
    (B) The Contractor will be notified of such release or disclosure;
    (C) The Contractor (or the party asserting restrictions, as 
identified in the restricted rights legend) may require each such 
covered Government support contractor to enter into a non-disclosure 
agreement directly with the Contractor (or the party asserting 
restrictions) regarding the covered Government support contractor's use 
of such software, or alternatively, that the Contractor (or party 
asserting restrictions) may waive in writing the requirement for a non-
disclosure agreement; and
    (D) Any such non-disclosure agreement shall address the 
restrictions on the covered Government support contractor's use of the 
restricted rights software as set forth in the clause at 252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished 
Information Marked with Restrictive Legends. The non-disclosure 
agreement shall not include any additional terms and conditions unless 
mutually agreed to by the parties to the non-disclosure agreement.
* * * * *

0
9. Section 252.227-7015 is amended--
0
a. By removing the clause date ``(DEC 2011)'' and adding ``(MAY 2013)'' 
in its place;
0
b. By revising paragraph (b)(3) to read as follows:


252.227-7015  Technical Data--Commercial Items.

* * * * *
    (b) * * *
    (3) The Contractor acknowledges that--
    (i) Technical data covered by paragraph (b)(2) of this clause are 
authorized to be released or disclosed to covered Government support 
contractors;
    (ii) The Contractor will be notified of such release or disclosure;
    (iii) The Contractor (or the party asserting restrictions as 
identified in a restrictive legend) may require each such covered 
Government support contractor to enter into a non-disclosure agreement 
directly with the Contractor (or the party asserting restrictions) 
regarding the covered Government support contractor's use of such data, 
or alternatively, that the Contractor (or party asserting restrictions) 
may waive in writing the requirement for an non-disclosure agreement; 
and
    (iv) Any such non-disclosure agreement shall address the 
restrictions on the covered Government support contractor's use of the 
data as set forth in the clause at 252.227-7025, Limitations on the Use 
or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends. The non-disclosure agreement shall not include any 
additional terms and conditions unless mutually agreed to by the 
parties to the non-disclosure agreement.
* * * * *

0
10. Section 252.227-7018 is amended--
0
a. By removing the clause date ``(MAR 2011)'' and adding ``(MAY 2013)'' 
in its place;
0
b. By revising paragraphs (a)(15); (a)(18); (a)(19); (b)(4); (b)(5); 
and (b)(8) to read as follows:


252.227-7018  Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovation Research (SBIR) Program.

    (a) * * *
    (15) ``Limited rights'' means the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data, in whole or in 
part, within the Government. The Government may not, without the 
written permission of the party asserting limited rights, release or 
disclose the technical data outside the Government, use the technical 
data for manufacture, or authorize the technical data to be used by 
another party, except that the Government may reproduce, release, or 
disclose such data or authorize the use or reproduction of the data by 
persons outside the Government if--
    (i) The reproduction, release, disclosure, or use is--

[[Page 30240]]

    (A) Necessary for emergency repair and overhaul; or
    (B) A release or disclosure to--
    (1) A covered Government support contractor in performance of its 
covered Government support contracts for use, modification, 
reproduction, performance, display, or release or disclosure to a 
person authorized to receive limited rights technical data; or
    (2) A foreign government, of technical data other than detailed 
manufacturing or process data, when use of such data by the foreign 
government is in the interest of the Government and is required for 
evaluational or informational purposes;
    (ii) The recipient of the technical data is subject to a 
prohibition on the further reproduction, release, disclosure, or use of 
the technical data; and
    (iii) The contractor or subcontractor asserting the restriction is 
notified of such reproduction, release, disclosure, or use.
* * * * *
    (18) ``Restricted rights'' apply only to noncommercial computer 
software and mean the Government's rights to--
    (i) Use a computer program with one computer at one time. The 
program may not be accessed by more than one terminal or central 
processing unit or time shared unless otherwise permitted by this 
contract;
    (ii) Transfer a computer program to another Government agency 
without the further permission of the Contractor if the transferor 
destroys all copies of the program and related computer software 
documentation in its possession and notifies the licensor of the 
transfer. Transferred programs remain subject to the provisions of this 
clause;
    (iii) Make the minimum number of copies of the computer software 
required for safekeeping (archive), backup, or modification purposes;
    (iv) Modify computer software provided that the Government may--
    (A) Use the modified software only as provided in paragraphs 
(a)(18)(i) and (iii) of this clause; and
    (B) Not release or disclose the modified software except as 
provided in paragraphs (a)(18)(ii), (v), (vi), and (vii) of this 
clause;
    (v) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) in support 
of this or a related contract to use computer software to diagnose and 
correct deficiencies in a computer program, to modify computer software 
to enable a computer program to be combined with, adapted to, or merged 
with other computer programs or when necessary to respond to urgent 
tactical situations, provided that--
    (A) The Government notifies the party which has granted restricted 
rights that a release or disclosure to particular contractors or 
subcontractors was made;
    (B) Such contractors or subcontractors are subject to the non-
disclosure agreement at 227.7103-7 of the Defense Federal Acquisition 
Regulation Supplement or are Government contractors receiving access to 
the software for performance of a Government contract that contains the 
clause at 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends;
    (C) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(18)(iv) of this clause, for any other 
purpose; and
    (D) Such use is subject to the limitations in paragraphs (a)(18)(i) 
through (iii) of this clause;
    (vi) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under this 
or a related contract to use the computer software when necessary to 
perform the repairs or overhaul, or to modify the computer software to 
reflect the repairs or overhaul made, provided that--
    (A) The intended recipient is subject to the non-disclosure 
agreement at 227.7103-7 or is a Government contractor receiving access 
to the software for performance of a Government contract that contains 
the clause at 252.227-7025, Limitations on the Use or Disclosure of 
Government Furnished Information Marked with Restrictive Legends;
    (B) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(18)(iv) of this clause, for any other 
purpose; and
    (C) Such use is subject to the limitations in paragraphs (a)(18)(i) 
through (iii) of this clause; and
    (vii) Permit covered Government support contractors in the 
performance of Government contracts that contain the clause at 252.227-
7025, Limitations on the Use or Disclosure of Government-Furnished 
Information Marked with Restrictive Legends, to use, modify, reproduce, 
perform, display, or release or disclose the computer software to a 
person authorized to receive restricted rights computer software, 
provided that--
    (A) The Government shall not permit the covered Government support 
contractor to decompile, disassemble, or reverse engineer the software, 
or use software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (a)(18)(iv) of this clause, for any 
other purpose; and
    (B) Such use is subject to the limitations in paragraphs (a)(18)(i) 
through (iv) of this clause.
    (19) ``SBIR data rights'' means the Government's rights during the 
SBIR data protection period (specified in paragraph (b)(4) of this 
clause) to use, modify, reproduce, release, perform, display, or 
disclose technical data or computer software generated a SBIR award as 
follows:
    (i) Limited rights in such SBIR technical data; and
    (ii) Restricted rights in such SBIR computer software.
* * * * *
    (b) * * *
    (4) SBIR data rights. Except for technical data, including computer 
software documentation, or computer software in which the Government 
has unlimited rights under paragraph (b)(1) of this clause, the 
Government shall have SBIR data rights in all technical data or 
computer software generated under this contract during the period 
commencing with contract award and ending upon the date five years 
after completion of the project from which such data were generated.
    (5) Specifically negotiated license rights. The standard license 
rights granted to the Government under paragraphs (b)(1) through (b)(4) 
of this clause may be modified by mutual agreement to provide such 
rights as the parties consider appropriate but shall not provide the 
Government lesser rights in technical data, including computer software 
documentation, than are enumerated in paragraph (a)(15) of this clause 
or lesser rights in computer software than are enumerated in paragraph 
(a)(18) of this clause. Any rights so negotiated shall be identified in 
a license agreement made part of this contract.
    (6) * * *
    (7) * * *
    (8) Covered Government support contractors. The Contractor 
acknowledges that--
    (i) Limited rights technical data and restricted rights computer 
software are authorized to be released or disclosed to covered 
Government support contractors;
    (ii) The Contractor will be notified of such release or disclosure;

[[Page 30241]]

    (iii) The Contractor may require each such covered Government 
support contractor to enter into a non-disclosure agreement directly 
with the Contractor (or the party asserting restrictions as identified 
in a restrictive legend) regarding the covered Government support 
contractor's use of such data or software, or alternatively that the 
Contractor (or party asserting restrictions) may waive in writing the 
requirement for a non-disclosure agreement; and
    (iv) Any such non-disclosure agreement shall address the 
restrictions on the covered Government support contractor's use of the 
data or software as set forth in the clause at 252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished 
Information Marked with Restrictive Legends. The non-disclosure 
agreement shall not include any additional terms and conditions unless 
mutually agreed to by the parties to the non-disclosure agreement.
* * * * *


252.227-7025  [Amended]

0
11. Section 252.227-7025 is revised as follows:


252.227-7025  Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.

    As prescribed in 227.7103-6(c), 227.7104(f)(1), or 227.7203-6(d), 
use the following clause:

Limitations on the Use or Disclosure of Government-Furnished 
Information Marked With Restrictive Legends (May 2013)

    (a)(1) For contracts in which the Government will furnish the 
Contractor with technical data, the terms ``covered Government 
support contractor,'' ``limited rights,'' and ``Government purpose 
rights'' are defined in the clause at 252.227-7013, Rights in 
Technical Data-Noncommercial Items.
    (2) For contracts in which the Government will furnish the 
Contractor with computer software or computer software 
documentation, the terms ``covered Government support contractor,'' 
``government purpose rights,'' and ``restricted rights'' are defined 
in the clause at 252.227-7014, Rights in Noncommercial Computer 
Software and Noncommercial Computer Software Documentation.
    (3) For Small Business Innovation Research program contracts, 
the terms ``covered Government support contractor,'' ``limited 
rights,'' ``restricted rights,'' and ``SBIR data rights'' are 
defined in the clause at 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation 
Research (SBIR) Program.
    (b) Technical data or computer software provided to the 
Contractor as Government-furnished information (GFI) under this 
contract may be subject to restrictions on use, modification, 
reproduction, release, performance, display, or further disclosure.
    (1) GFI marked with limited rights, restricted rights, or SBIR 
data rights legends.
    (i) The Contractor shall use, modify, reproduce, perform, or 
display technical data received from the Government with limited 
rights legends, computer software received with restricted rights 
legends, or SBIR technical data or computer software received with 
SBIR data rights legends (during the SBIR data protection period) 
only in the performance of this contract. The Contractor shall not, 
without the express written permission of the party whose name 
appears in the legend, release or disclose such data or software to 
any unauthorized person.
    (ii) If the Contractor is a covered Government support 
contractor, the Contractor is also subject to the additional terms 
and conditions at paragraph (b)(5) of this clause
    (2) GFI marked with government purpose rights legends. The 
Contractor shall use technical data or computer software received 
from the Government with government purpose rights legends for 
government purposes only. The Contractor shall not, without the 
express written permission of the party whose name appears in the 
restrictive legend, use, modify, reproduce, release, perform, or 
display such data or software for any commercial purpose or disclose 
such data or software to a person other than its subcontractors, 
suppliers, or prospective subcontractors or suppliers, who require 
the data or software to submit offers for, or perform, contracts 
under this contract. Prior to disclosing the data or software, the 
Contractor shall require the persons to whom disclosure will be made 
to complete and sign the non-disclosure agreement at 227.7103-7.
    (3) GFI marked with specially negotiated license rights legends.
    (i) The Contractor shall use, modify, reproduce, release, 
perform, or display technical data or computer software received 
from the Government with specially negotiated license legends only 
as permitted in the license. Such data or software may not be 
released or disclosed to other persons unless permitted by the 
license and, prior to release or disclosure, the intended recipient 
has completed the non-disclosure agreement at 227.7103-7. The 
Contractor shall modify paragraph (1)(c) of the non-disclosure 
agreement to reflect the recipient's obligations regarding use, 
modification, reproduction, release, performance, display, and 
disclosure of the data or software.
    (ii) If the Contractor is a covered Government support 
contractor, the Contractor may also be subject to some or all of the 
additional terms and conditions at paragraph (b)(5) of this clause, 
to the extent such terms and conditions are required by the 
specially negotiated license.
    (4) GFI technical data marked with commercial restrictive 
legends.
    (i) The Contractor shall use, modify, reproduce, perform, or 
display technical data that is or pertains to a commercial item and 
is received from the Government with a commercial restrictive legend 
(i.e., marked to indicate that such data are subject to use, 
modification, reproduction, release, performance, display, or 
disclosure restrictions) only in the performance of this contract. 
The Contractor shall not, without the express written permission of 
the party whose name appears in the legend, use the technical data 
to manufacture additional quantities of the commercial items, or 
release or disclose such data to any unauthorized person.
    (ii) If the Contractor is a covered Government support 
contractor, the Contractor is also subject to the additional terms 
and conditions at paragraph (b)(5) of this clause
    (5) Covered Government support contractors. If the Contractor is 
a covered Government support contractor receiving technical data or 
computer software marked with restrictive legends pursuant to 
paragraphs (b)(1)(ii), (b)(3)(ii), or (b)(4)(ii) of this clause, the 
Contractor further agrees and acknowledges that--
    (i) The technical data or computer software will be accessed and 
used for the sole purpose of furnishing independent and impartial 
advice or technical assistance directly to the Government in support 
of the Government's management and oversight of the program or 
effort to which such technical data or computer software relates, as 
stated in this contract, and shall not be used to compete for any 
Government or non-Government contract;
    (ii) The Contractor will take all reasonable steps to protect 
the technical data or computer software against any unauthorized 
release or disclosure;
    (iii) The Contractor will ensure that the party whose name 
appears in the legend is notified of the access or use within thirty 
(30) days of the Contractor's access or use of such data or 
software;
    (iv) The Contractor will enter into a non-disclosure agreement 
with the party whose name appears in the legend, if required to do 
so by that party, and that any such non-disclosure agreement will 
implement the restrictions on the Contractor's use of such data or 
software as set forth in this clause. The non-disclosure agreement 
shall not include any additional terms and conditions unless 
mutually agreed to by the parties to the non-disclosure agreement; 
and
    (v) That a breach of these obligations or restrictions may 
subject the Contractor to--
    (A) Criminal, civil, administrative, and contractual actions in 
law and equity for penalties, damages, and other appropriate 
remedies by the United States; and
    (B) Civil actions for damages and other appropriate remedies by 
the party whose name appears in the legend.
    (c) Indemnification and creation of third party beneficiary 
rights. The Contractor agrees--
    (1) To indemnify and hold harmless the Government, its agents, 
and employees from every claim or liability, including attorneys 
fees, court costs, and expenses, arising out of, or in any way 
related to, the misuse or unauthorized modification, reproduction, 
release, performance, display, or disclosure

[[Page 30242]]

of technical data or computer software received from the Government 
with restrictive legends by the Contractor or any person to whom the 
Contractor has released or disclosed such data or software; and
    (2) That the party whose name appears on the restrictive legend, 
in addition to any other rights it may have, is a third party 
beneficiary who has the right of direct action against the 
Contractor, or any person to whom the Contractor has released or 
disclosed such data or software, for the unauthorized duplication, 
release, or disclosure of technical data or computer software 
subject to restrictive legends.
    (d) The Contractor shall ensure that its employees are subject 
to use and non-disclosure obligations consistent with this clause 
prior to the employees being provided access to or use of any GFI 
covered by this clause.

[FR Doc. 2013-12055 Filed 5-21-13; 8:45 am]
BILLING CODE 5001-06-P

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