Federal Acquisition Regulation: Small Business Innovation Research and Technology Transfer Programs, 20822-20829 [2023-06420]
Download as PDF
<![CDATA[
ddrumheller on DSK120RN23PROD with PROPOSALS1
20822
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
Steps Taken To Minimize the
Significant Economic Impact on Small
Entities and Significant Alternatives
Considered
119. The RFA requires an agency to
describe any significant, specifically
small business, alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): (1) the establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rules for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for such small entities.
120. In the NPRM, the Commission
seeks to fulfill Congress’s intent via the
implementation of the Martha WrightReed Act, including its directive that the
Commission ensure just and reasonable
rates and charges for incarcerated
people’s audio and video
communications services. While doing
so, the Commission is mindful of the
potential impact on small businesses
and, in particular, any disproportionate
impact or unique burdens that small
businesses may face in complying with
any rules the Commission may adopt.
Below the Commission discusses
several steps it has taken that could
reduce the economic impact for small
entities.
121. Allowing additional time for
small and medium-sized businesses to
comply with the proposed rules,
including the timeframe for compliance,
could reduce the economic impact for
small entities. The Commission
considered and seeks comment on
whether such an approach would serve
the public interest. In doing so, the
Commission has provided small entities
the opportunity to offer alternatives not
already considered, giving small entities
ample time to minimize whatever
potential burdens they may face.
122. The Commission also seeks
comment on the Martha Wright-Reed
Act’s directive to consider the size of
incarceration facilities in setting just
and reasonable rates and charges for
services. The Commission seeks
comment on whether the ‘‘industrywide’’ average cost language in the
Martha Wright-Reed Act refers only to
some subset of providers of incarcerated
people’s communications services or all
such providers. In doing so, the
Commission seeks information that will
help to determine the appropriate
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
approach to ensuring just and
reasonable rates as required by the Act.
The Commission would also benefit by
using the information obtained from
comments to inform its evaluation of its
regulatory options, including those that
may potentially be less burdensome for
smaller providers.
123. The Martha Wright-Reed Act
states that the Commission ‘‘shall
consider . . . differences in the costs
. . . by small, medium or large facilities
or other characteristics,’’ as part of its
rate-setting process. The Commission
seeks comment on how to interpret
‘‘small, medium, or large facilities.’’ The
Commission considered and seeks
comment on whether it is obligated to
consider potential cost differences
associated with serving different-sized
facilities if it sets rates based on
something other than industry-wide
average costs. This information will
assist the Commission in considering
alternatives such as whether it should
implement more or fewer rate tiers
based on the type or size of facility, and
whether the Commission should set the
same rates for small, medium, and large
facilities after considering cost
differences, if any.
124. Considering the economic impact
on small entities through comments
filed in response to the NPRM and this
IRFA, as part of its efforts to implement
the Martha Wright-Reed Act and
promulgate rules in these proceedings,
could allow the Commission to
potentially obtain cost-benefit analyses
and other input that would enable it to
identify reasonable alternatives that may
not be readily apparent, and offer
alternatives not already considered that
could minimize the economic impact on
small entities.
Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
125. None.
Ordering Clauses
126. It is ordered, pursuant to sections
1, 2, 4(i)–(j), 5(c), 201(b), 218, 220, 225,
255, 276, 403, and 716 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i)–(j),
155(c), 201(b), 218, 220, 225, 255, 276,
403, and 617, and the Martha WrightReed Just and Reasonable
Communications Act of 2022, Public
Law 117–338, 136 Stat 6156 (2022), the
Notice of Proposed Rulemaking is
hereby adopted.
127. It is further ordered, pursuant to
applicable procedures set forth in
§§ 1.415 and 1.419 of the Commission’s
rules, 47 CFR 1.415, 1.419, interested
parties may file comments on the Notice
PO 00000
Frm 00043
Fmt 4702
Sfmt 4702
of Proposed Rulemaking on or before 30
days after publication of a summary of
the Notice of Proposed Rulemaking in
the Federal Register and reply
comments on or before 60 days after
publication of a summary of the Notice
of Proposed Rulemaking in the Federal
Register.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2023–07068 Filed 4–6–23; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 4, 6, 27, and 52
[FAR Case 2020–010, Docket No. FAR–
2020–0010, Sequence No. 1]
RIN 9000–AO12
Federal Acquisition Regulation: Small
Business Innovation Research and
Technology Transfer Programs
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCY:
DoD, GSA and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
implement changes related to data rights
in the Small Business Administration’s
Policy Directive for the Small Business
Innovation Research (SBIR) and Small
Business Technology Transfer (STTR)
Programs, published in the Federal
Register on April 2, 2019. In addition,
this proposed rule would implement
competition requirements unique to
Phase II and III awards under the SBIR/
STTR Programs.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat Division at the address
shown below on or before June 6, 2023
to be considered in the formation of the
final rule.
ADDRESSES: Submit comments in
response to FAR Case 2020–010 to the
Federal eRulemaking portal at https://
www.regulations.gov by searching for
‘‘FAR Case 2020–010’’. Select the link
‘‘Comment Now’’ that corresponds with
‘‘FAR Case 2020–010’’. Follow the
instructions provided on the ‘‘Comment
Now’’ screen. Please include your name,
SUMMARY:
E:\FR\FM\07APP1.SGM
07APP1
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
company name (if any), and ‘‘FAR Case
2020–010’’ on your attached document.
If your comment cannot be submitted
using https://www.regulations.gov, call
or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of
this document for alternate instructions.
Instructions: Please submit comments
only and cite ‘‘FAR Case 2020–010’’ in
all correspondence related to this case.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. Public comments
may be submitted as an individual, as
an organization, or anonymously (see
frequently asked questions at https://
www.regulations.gov/faq). To confirm
receipt of your comment(s), please
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting.
For
clarification of content, contact Ms.
Mahruba Uddowla, Procurement
Analyst, at 703–605–2868, or by email
at mahruba.uddowla@gsa.gov. For
information pertaining to status,
publication schedules, or alternative
instructions for submitting comments if
https://www.regulations.gov cannot be
used, contact the Regulatory Secretariat
Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAR
Case 2020–010.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
ddrumheller on DSK120RN23PROD with PROPOSALS1
I. Background
DoD, GSA, and NASA are proposing
to amend the FAR to implement
changes related to data rights that are
necessary to comply with the Small
Business Administration’s SBIR and
STTR Policy Directive (PD) published in
the Federal Register on April 2, 2019
(84 FR 12794). In addition, this rule
implements competition requirements
unique to Phase II and III awards under
the SBIR/STTR Programs.
Prior to the April 2019 revision, the
PD, FAR, and Defense Federal
Acquisition Regulation Supplement
(DFARS) each had different terminology
and data rights allocations for SBIR/
STTR data. The inconsistencies may
have led to confusion and placed an
unnecessary burden on small businesses
because they had to operate under three
different interpretations of the same
programs. The revisions to the PD were
intended to create uniformity and
clarity regarding the Government’s
rights in SBIR/STTR data. To achieve
this objective, the FAR must be updated
to adopt the terminology, definitions,
and data rights allocations described in
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
the most recent update of the SBIR/
STTR PD.
II. Discussion and Analysis
The proposed rule reflects SBA’s
updated SBIR/STTR PD terminology,
revisions to the data rights afforded to
the Government and the extension of
the SBIR/STTR data rights protection
period from a minimum of 4 years to 20
years. The rule also clarifies direction
for contracting officers pertaining to
document retention and competition
requirements. A summary of the
proposed changes follows:
A. FAR Part 2
The definitions for ‘‘computer
database’’ and ‘‘computer software’’ are
revised in FAR part 2 to harmonize
terminology that applies to the SBIR/
STTR programs with terminology used
in the rest of the FAR and DFARS.
These definitions reflect those used in
SBA’s SBIR/STTR PD to the greatest
extent possible. In some instances,
similar language has been used to
convey the intent of the PD for
contracting officers. As a conforming
change to the revised definition for
‘‘computer software,’’ a separate
definition for ‘‘computer program’’ is
added to FAR part 2.
B. FAR Part 4
Due to the expansion of the SBIR/
STTR data rights protection period from
a minimum of 4 years after acceptance
of all items under the contract to 20
years after the date of award, a new
records retention category is proposed at
FAR 4.805(c)(9) for contracts involving
SBIR/STTR data rights. The proposed
addition would require SBIR/STTR
contracts that contain the revised FAR
clause 52.227–20, Rights in Data-SBIR/
STTR Programs, to be retained for 20
years after award rather than 6 years
after final payment, to coincide with the
new protection period.
C. FAR Part 6
The proposed rule adds text at FAR
6.302–5, Authorized or required by
statute, to clarify that contracting
officers may award sole-source actions
under Phase III of the SBIR/STTR
programs without further justification
based upon the statutory authority in
the Small Business Act (15 U.S.C.
638(r)(4)). Guidance is also provided for
instances when Phase II sole-source
actions may be awarded without
justification (15 U.S.C. 638(ff) and the
SBA PD).
D. FAR Part 27
Changes were made to the definitions
of ‘‘data’’ and ‘‘unlimited rights’’ at FAR
PO 00000
Frm 00044
Fmt 4702
Sfmt 4702
20823
27.401 to reflect the SBIR/STTR PD
definitions. The definition of
‘‘unlimited rights’’ was revised to no
longer specify data that can be
performed or displayed publicly. The
revision does not remove the
Government’s ability to perform
publicly or display publicly; the
revision is made to cover the
Government’s right to perform and
display both in public settings and nonpublic settings.
A new section is created in subpart
27.4 to cover the SBIR and STTR
programs. It would give basic
information on the program. It would
also provide instructions to contracting
officers that are specific to contracts
awarded under the SBIR/STTR
programs. The instructions relate to the
procedures of negotiating a different
protection period than the new
minimum period of 20 years after award
as well as the requirements associated
with further release or disclosure of
SBIR/STTR data outside the
Government. As a result of the creation
of this new section, the current section
of 27.409 is proposed to be renumbered
as 27.410.
The SBIR/STTR PD made several
revisions to the SBIR/STTR program
which are reflected in the prescription
at newly-designated FAR 27.410(h).
E. FAR Part 52
The definitions at FAR clauses
52.227–14, Rights in Data-General;
52.227–17, Rights in Data–Special
Works; and 52.227–20, Rights in DataSBIR/STTR Programs, are revised to
reflect the updated 2.101 and 27.401
definitions—see Section II. A and D of
this preamble.
FAR clause 52.227–20, Rights in DataSBIR/STTR Programs, is revised in the
title to become ‘‘Rights in Data—Small
Business Innovation Research (SBIR)
and Small Business Technology
Transfer (STTR) Programs’’, and to add
definitions for ‘‘Government purpose,’’
‘‘Government purpose rights,’’
‘‘Operations, maintenance, installation,
or training purposes (OMIT) data,’’
‘‘SBIR/STTR computer software rights,’’
‘‘SBIR/STTR protection period,’’ ‘‘SBIR/
STTR technical data,’’ and ‘‘SBIR/STTR
technical data rights.’’ These definitions
reflect those used in SBA’s SBIR/STTR
PD to the greatest extent possible. In
some instances, different language has
been used to harmonize terminology
that applies to the SBIR/STTR programs
with terminology used in the rest of the
FAR and DFARS. Also, in some
instances additional or different
language is used in the definition to
provide further clarity to contracting
officers and contractors. Regardless of
E:\FR\FM\07APP1.SGM
07APP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
20824
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
whether the definitions proposed for the
FAR are the same or different from the
definitions in the PD, the intent is for
the FAR definitions to be consistent
with the SBIR/STTR PD.
The terms ‘‘SBIR data’’ and ‘‘SBIR
rights’’ in FAR clause 52.227–20 have
been updated as ‘‘SBIR/STTR data’’ and
‘‘SBIR/STTR data rights’’, and to reflect
both SBIR/STTR programs. The
definitions of the two terms have been
updated to be consistent with the SBIR
and STTR PD. The definition of
‘‘technical data’’ is not being revised in
the FAR since the FAR definition is
statutory (41 U.S.C. 116). SBA has
confirmed that the ‘‘technical data’’
definition in the SBIR and STTR PD was
not intended to differ from the statutory
definition. Language is also added at
52.227–20(b) to clarify that the SBIR/
STTR data rights provided in the clause
are to be interpreted consistent with the
SBIR and STTR PD. However, if there is
inconsistency between the FAR clause
and the SBIR and STTR PD, the clause
governs; this is standard protocol in the
FAR. If there are substantive changes to
the PD in the future, DoD, GSA, and
NASA will pursue rulemaking to update
the FAR accordingly.
The Rights Notice in FAR clause
52.227–20(d) is revised to reflect the fact
that the clause now covers both SBIR/
STTR programs and to reflect the
increase in the protection period from 4
years after acceptance of all items under
the contract to 20 years after the date of
award. As a logistical matter that will
promote compliance with the protection
period, the Notice is revised to require
inclusion of the contract award date.
The Notice is also revised to reflect the
new terminology and definitions added
to the clause.
Consistent with the SBIR/STTR PD,
FAR clause 52.227–20 is also revised to
authorize contractors and contracting
officers to negotiate a different
protection period, after award of the
contract. The clause at paragraph (d)(2)
will require contractors, in such a
scenario, to update their Rights Notice
to reflect the negotiated protection
period.
Conforming changes are proposed for
all the clauses and provisions
prescribed in FAR subpart 27.4, due to
the renumbering of the section
containing the prescriptions from
27.409 to 27.410.
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Products (Including Commercially
Available Off-the-Shelf (COTS) Items)
or for Commercial Services
This rule amends the clauses at FAR
52.227–14, Rights in Data—General,
52.227–17, Rights in Data—Special
Works, and 52.227–20, Rights in Data—
SBIR/STTR Programs, but this rule does
not change the applicability of these
existing clauses included in contracts
valued at or below the SAT, or for
commercial products (including COTS
items) and commercial services.
IV. Expected Impact of the Rule
This rule is expected to impact the
contractors awarded contracts under the
SBIR/STTR programs and subject to
FAR clause 52.227–20, which addresses
data rights.
Contractors awarded contracts under
the SBIR/STTR programs will benefit
from having a single FAR clause that
will uniformly govern awards under
both programs, provide for a longer
protection period, and use consistent
terminology across the programs and
other contract awards outside the
programs that are subject to the FAR or
DFARS.
The FAR does not currently contain a
clause applicable to contracts awarded
under the STTR program. SBA has
combined the SBIR and STTR policy
directives into a single document,
which makes it easier for this proposed
rule to update the FAR SBIR clause to
cover both programs. Currently in the
FAR, the period of time during which
the Government is obligated to protect
a contractor’s SBIR/STTR data against
unauthorized use and disclosure, i.e.,
protection period, is four years.
Consistent with the SBIR/STTR PD, this
proposed rule seeks to increase the
protection period to 20 years. The
longer protection period incentivizes
the Government to make subsequent
awards, under phases II and III, to the
small business that developed the
technology under a phase I award.
Therefore, small businesses are
incentivized to participate in the SBIR/
STTR programs in the first place. An
added benefit of the 20-year protection
period is that it covers the timeframe
necessary for many technologies to be
commercialized and mirrors the length
of the patent protection period. In
addition, this rule is expected to reduce
confusion and burden on small
businesses by adopting the updates to
the SBIR/STTR PD, which in turn
created uniformity and clarity regarding
PO 00000
Frm 00045
Fmt 4702
Sfmt 4702
contractors’ and the Government’s rights
in SBIR/STTR data.
This rule is also expected to benefit
contractors that participate under the
SBIR/STTR programs by clarifying for
contracting officers the authority to
make sole-source awards under phases
II and III under the programs. Clarifying
the authority should drive greater use of
the programs by the Government and
perhaps greater participation by small
businesses.
On the Government side, the rule is
expected to reduce burden on
contracting officers by clarifying that
further justification is not necessary
when using the sole-source authority
provided under the SBIR/STTR
programs. This is also expected to
reduce the burden and confusion on
contracting officers because the
protection period will have a clear start
and end date. Previously, the start date
was four years from the date of
acceptance of all deliverables. The
triggers for the protection period were
not always clear. This proposed rule
changes the start date of the protection
period to the date of award, which is
something that is clearly noted on the
contract itself. Therefore there is no
reason for confusion. The proposed rule
also provides explicit direction on the
records retention period for contracts
subject to the FAR clause. This will
benefit the Government by ensuring
contract files are retained long enough
for the Government to comply with the
data rights requirements, enforce its
data rights, and defend itself in the
event of litigation.
V. 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 under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VI. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect
this rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601–
612, because small business contractors
E:\FR\FM\07APP1.SGM
07APP1
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
under the SBIR/STTR Programs
represent less than one percent of all
small businesses that are looking for
Federal contract opportunities.
However, an Initial Regulatory
Flexibility Analysis (IRFA) has been
performed and is summarized as
follows:
DoD, GSA, and NASA are proposing to
revise the FAR to implement changes related
to data rights in the Small Business
Administration’s Policy Directive for the
Small Business Innovation Research (SBIR)
and Small Business Technology Transfer
(STTR) Programs, published in the Federal
Register on April 2, 2019 (84 FR 12794).
The objective of this rule is to update the
FAR coverage related to the SBIR and STTR
Programs to be consistent with the 2019
changes SBA made to the Policy Directive
governing those Programs. In addition, this
rule is intended to implement competition
requirements unique to Phase II and III
awards under the SBIR/STTR Programs.
Section 9 of the Small Business Act (15
U.S.C. 638) requires SBA to issue a policy
directive setting forth guidance to the Federal
agencies participating in the SBIR/STTR
Programs. In addition, 15 U.S.C. 638(r)(4)
authorizes sole-source awards under phase III
of the SBIR and STTR Programs.
Prior to SBA’s 2019 revision of the Policy
Directive, there were different terminology
and data rights allocations for SBIR/STTR
data contained in SBA’s Policy Directive, the
FAR, and DoD’s supplement to the FAR, the
Defense Federal Acquisition Regulation
Supplement. This inconsistency may have
led to confusion and created a burden on
small businesses to understand three
different data rights regimes for the same
programs. SBA’s intent when revising the
data rights provisions of the Policy Directive
was to create uniformity and clarity regarding
the Government’s rights in SBIR/STTR data.
To achieve this goal the FAR must be
updated to adopt the terminology,
definitions, and data rights allocations
described in the most recent update of the
Policy Directive.
The proposed rule is not expected to have
a significant economic impact on a
substantial number of small entities within
the meaning of the Regulatory Flexibility Act,
5 U.S.C. 601–612. As of January 2022, there
were over 415,000 small business registrants
in the System for Award Management. This
rule will impact entities awarded contracts
under the SBIR/STTR Programs. Based on
data from the Federal Procurement Data
System (FPDS) for fiscal years 2020 through
2022, there were approximately 12,736
contract awards made to 4,961 unique
entities under the SBIR and STTR Programs.
Of those 4,961 unique entities, 4,882 were
small businesses. While past awards under
the SBIR and STTR Programs are not a
perfect indicator of all small entities that may
be impacted by this rule (i.e., there may be
more, fewer, or different small entities that
receive future awards under the Programs
than the entities that received the awards in
the past), considering the combined data
from three fiscal years is a reasonable
estimator of the scope/scale of the rule’s
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
likely impact. The 4,882 small business
contractors under the SBIR and STTR
Programs represent approximately 1 percent
of all small businesses that are looking for
Federal contract opportunities.
Of the limited number of small businesses
to which this rule will apply, there is
expected to be positive economic impact.
Beyond standardizing and clarifying
terminology, this rule also implements the
change in the Policy Directive, which
extends the data rights protection period
from 4 years to 20 years. This longer
protection period benefits small businesses
by providing the timeframe necessary for
many technologies to be commercialized and
by mirroring the length of the patent
protection period.
This proposed rule does not include any
new substantive reporting, recordkeeping, or
other compliance requirements for small
businesses. The rule does not impose
additional information collection
requirements to the paperwork burden
previously approved by the Office of
Management and Budget (OMB) under the
Paperwork Reduction Act (44 U.S.C. 3501–
3521), Control Number 9000–0090, Rights in
Data and Copyrights. The existing
information collection already accounts for
the reporting associated with the requirement
to affix a notice to SBIR/STTR data delivered
under the contract. The notice already
requires the contractor to fill in the contract
and subcontract number; this rule proposes
the notice to also include a fill-in for the
contract award date. The burden associated
with the additional fill-in is considered de
minimis.
The rule does not duplicate, overlap, or
conflict with any other Federal rules.
DoD, GSA, and NASA were unable to
identify any alternatives to the rule that
would reduce the impact on small entities
and still implement requirements consistent
with the 2019 SBA Policy Directive.
The Regulatory Secretariat Division
has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat Division. DoD,
GSA, and NASA invite comments from
small business concerns and other
interested parties on the expected
impact of this rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAR Case 2020–010), in
correspondence.
VII. Paperwork Reduction Act
This rule affects the information
collection requirements in the clause at
FAR 52.227–20, currently approved
under OMB Control Number 9000–0090,
Rights in Data and Copyrights, in
accordance with the Paperwork
PO 00000
Frm 00046
Fmt 4702
Sfmt 4702
20825
Reduction Act (44 U.S.C. 3501–3521).
The impact, however, is negligible. The
existing information collection already
accounts for the reporting associated
with the requirement to affix a notice to
SBIR/STTR data delivered under the
contract. The notice already requires the
contractor to fill in the contract and
subcontract number; this rule proposes
the notice to also include a fill-in for the
contract award date. The burden
associated with the additional fill-in is
considered de minimis.
List of Subjects in 48 CFR Parts 2, 4, 6,
27, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 2, 4, 6,
27, and 52 as set forth below:
■ 1. The authority citation for 48 CFR
parts 2, 4, 6, 27, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 4 and 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51
U.S.C. 20113.
PART 2—DEFINITIONS OF WORDS
AND TERMS
2. Amend section 2.101, in paragraph
(b)(2), by:
■ a. Revising the definition ‘‘Computer
database or database’’;
■ b. Adding in alphabetic order the
definition ‘‘Computer program’’; and
■ c. Revising the definition ‘‘Computer
software’’.
The addition and revisions read as
follows:
■
2.101
Definitions.
*
*
*
*
*
(b) * * *
(2) * * *
*
*
*
*
*
Computer database or database
means a collection of data recorded in
a form capable of being processed by a
computer. The term does not include
computer software.
Computer program means a set of
instructions, rules, or routines recorded
in a form that is capable of causing a
computer to perform a specific
operation or series of operations.
Computer software means computer
programs, source code, source code
listings, object code listings, design
details, algorithms, processes, flow
charts, formulae, and related material
that would enable the software to be
reproduced, recreated, or recompiled.
E:\FR\FM\07APP1.SGM
07APP1
20826
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
(c)(1) and adding paragraph (c)(9) to
read as follows:
Computer software does not include
computer databases or computer
software documentation.
*
*
*
*
*
4.805
files.
Storage, handling, and contract
*
*
*
*
*
(c) An agency that requires a shorter
retention period than those identified in
Table 4–1, except for contracts
involving data rights under the Small
PART 4—ADMINISTRATIVE AND
INFORMATION MATTERS
3. Amend section 4.805 by revising
paragraphs (c) introductory text and
■
Business Innovation Research (SBIR)
Program or Small Business Technology
Transfer (STTR) Program (see paragraph
(c)(1) of this section for minimum
contract retention period), shall request
approval from NARA through the
agency’s records officer.
TABLE 4–1—RETENTION PERIODS
Record
Retention period
(1) Contracts (and related records or documents, including successful
and unsuccessful proposals, except see paragraph (c)(2) of this section regarding contractor payrolls submitted under construction contracts and see paragraph (c)(9) of this section regarding contracts
under the SBIR Program or STTR Program.).
6 years after final payment.
*
*
*
*
*
*
*
(9) Contracts involving SBIR/STTR data rights which include FAR 20 years after contract award, or at the end of the protection period as
clause 52.227–20.
specified in FAR 52.227–20 as it appears in the contract, whichever
is later.
PART 6—COMPETITION
REQUIREMENTS
PART 27—PATENTS, DATA, AND
COPYRIGHTS
■
4. Amend section 6.203 by revising
the second sentence of paragraph (a) to
read as follows:
■
6.203 Set-asides for small business
concerns.
27.401
(a) * * * This includes contract
actions conducted under the Small
Business Innovation Research (SBIR) or
Small Business Technology Transfer
(STTR) Program established under 15
U.S.C. 638.
*
*
*
*
*
■ 5. Amend section 6.302–5 by adding
paragraph (b)(8), and revising paragraph
(c)(2)(i) to read as follows:
6.302–5
Authorized or required by statute.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
(b) * * *
(8)(i) Sole-source awards under phase
III of the Small Business Innovation
Research (SBIR) or Small Business
Technology Transfer (STTR) programs
(15 U.S.C. 638(r)(4)).
(ii) One sequential sole-source award
under phase II if the award follows a
competitive phase II award (15 U.S.C.
638(ff) and section (4)(b)(5) of the SBA
‘‘Small Business Innovation Research
(SBIR) and Small Business Technology
Transfer (STTR) Program Policy
Directive’’ (published April 2, 2019; see
https://www.sbir.gov), as amended).
(c) * * *
(2) * * *
(i) Contracts awarded under
paragraph (a)(2)(ii), (b)(2), or (b)(8) of
this section;
*
*
*
*
*
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
6. Amend section 27.401 by revising
the first sentence in the definition
‘‘Data’’, and revising the definition
‘‘Unlimited rights’’ to read as follows:
Definitions.
*
*
*
*
*
Data means all recorded information,
regardless of the form, method of
recording, or the media on which it may
be recorded. * * *
*
*
*
*
*
Unlimited rights means the rights of
the Government to use, modify, prepare
derivative works, reproduce, release,
perform, display, disclose, or distribute
data in whole or in part, in any manner
and for any purpose whatsoever, and to
have or permit others to do so.
27.409
[Redesignated as section 27.410]
7. Redesignate section 27.409 as
section 27.410.
■ 8. Add a new section 27.409 to read
as follows:
■
27.409 Small Business Innovation
Research (SBIR) and Small Business
Technology Transfer (STTR) programs.
(a) The purpose of the SBIR and STTR
programs is to strengthen the role of
innovative small business concerns in
Federally-funded research or research
and development. Certain agencies are
required to participate in the SBIR/
STTR programs.
(b) The SBIR and STTR programs are
authorized by 15 U.S.C. 638. The statute
directs the Small Business
Administration (SBA) to issue a Policy
Directive. SBA published its Policy
PO 00000
Frm 00047
Fmt 4702
Sfmt 4702
Directive in the Federal Register; SBA
keeps the Policy Directive updated by
publishing revisions in the Federal
Register. The current Policy Directive is
available online at https://www.sbir.gov.
(c) The programs have three phases of
awards. The purpose of Phase I awards
is to establish technical merit,
feasibility, and commercial potential.
Phase II awards continue the research
and development efforts initiated in
Phase I. The purpose of Phase III awards
is to pursue commercialization
objectives for future sale or use by the
Federal Government or commercial
markets.
(d) Solicitations and contracts
awarded under the SBIR/STTR
programs must include clause 52.227–
20, Rights in Data—Small Business
Innovation Research (SBIR) and Small
Business Technology Transfer (STTR)
Programs (see 27.410(h)).
(1) The period of time during which
the Government is obligated to protect
SBIR/STTR data against unauthorized
use and disclosure, i.e., the SBIR/STTR
protection period, begins at award of a
SBIR/STTR contract and ends not less
than 20 years from that date. After
award of the contract, the contractor and
the contracting officer may negotiate a
different SBIR/STTR protection period.
If a different SBIR/STTR protection
period is negotiated, paragraph (d) of
clause 52.227–20 requires the contractor
to revise the SBIR/STTR Rights Notice
to reflect the negotiated protection
period.
(2) With regard to the release or
disclosure of SBIR/STTR data outside
the Government, as referenced in the
definitions of ‘‘SBIR/STTR computer
E:\FR\FM\07APP1.SGM
07APP1
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
software rights’’ and ‘‘SBIR/STTR
technical data rights’’ in paragraph (a) of
clause 52.227–20, contracting officers
shall require prohibition against further
use and disclosure by support service
contractors or their subcontractors (e.g.,
by using a nondisclosure agreement).
For terms required to be included in the
prohibition, consult section 8(c) of the
Small Business Innovation Research
(SBIR) and Small Business Technology
Transfer (STTR) Program Policy
Directive (84 FR 12794, April 2, 2019;
see https://www.sbir.gov), as amended.
■ 9. Amend the newly redesignated
section 27.410 by revising paragraph (h)
to read as follows:
27.410 Solicitation provisions and
contract clauses
*
*
*
*
*
(h) If the contract is a SBIR or STTR
contract, insert the clause at 52.227–20,
Rights in Data—Small Business
Innovation Research (SBIR) and Small
Business Technology Transfer (STTR)
Programs, in all Phase I, Phase II, and
Phase III contracts awarded under the
SBIR or STTR Program established
pursuant to 15 U.S.C. 638. This clause
implements 15 U.S.C. 638 and the Small
Business Administration’s ‘‘Small
Business Innovation Research (SBIR)
and Small Business Technology
Transfer (STTR) Program Policy
Directive’’ (84 FR 12794, April 2, 2019;
see https://www.sbir.gov).
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
10. Amend section 52.227–14 by—
a. Removing from the introductory
text the phrase ‘‘27.409’’ and adding
‘‘27.410’’ in its place;
■ b. Revising the date of the clause;
■ c. In paragraph (a):
■ i. Revising the definition ‘‘Computer
database or database’’;
■ ii. Adding in alphabetical order the
definition ‘‘Computer program’’;
■ iii. Revising the definition ‘‘Computer
software’’;
■ iv. Revising the first sentence in the
definition of ‘‘Data’’;
■ v. Revising the definition ‘‘Unlimited
rights’’; and
■ d. Removing from the introductory
text of Alternate I through V the phrase
‘‘27.409’’ and adding ‘‘27.410’’ in its
place.
The revisions and addition read as
follows:
ddrumheller on DSK120RN23PROD with PROPOSALS1
■
■
52.227–14
Rights in Data—General
*
*
*
*
*
Rights in Data—General (Date)
(a) * * *
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
Computer database or database
means a collection of data recorded in
a form capable of being processed by a
computer. The term does not include
computer software.
Computer program means a set of
instructions, rules, or routines recorded
in a form that is capable of causing a
computer to perform a specific
operation or series of operations.
Computer software means computer
programs, source code, source code
listings, object code listings, design
details, algorithms, processes, flow
charts, formulae, and related material
that would enable the software to be
reproduced, recreated, or recompiled.
Computer software does not include
computer databases or computer
software documentation.
Data means all recorded information,
regardless of the form, method of
recording, or the media on which it may
be recorded. * * *
*
*
*
*
*
Unlimited rights means the rights of
the Government to use, modify, prepare
derivative works, reproduce, release,
perform, display, disclose, or distribute
data in whole or in part, in any manner
and for any purpose whatsoever, and to
have or permit others to do so.
*
*
*
*
*
52.227–15
[Amended]
11. Amend section 52.227–15 by
removing from the introductory text
‘‘27.409’’ and adding ‘‘27.410’’ in its
place.
■
52.227–16
[Amended]
12. Amend section 52.227–16 by
removing from the introductory text the
phrase ‘‘27.409’’ and adding ‘‘27.410’’ in
its place.
■ 13. Amend section 52.227–17 by—
■ a. Removing from the introductory
text the phrase ‘‘27.409’’ and adding
‘‘27.410’’ in its place;
■ b. Revising the date of the clause;
■ c. In paragraph (a):
■ i. Revising the first sentence in the
definition of ‘‘Data’’; and
■ ii. Revising the definition ‘‘Unlimited
rights’’.
The revisions read as follows:
■
52.227–17
Rights in Data—Special Works.
*
*
*
*
*
Rights in Data—Special Works (Date)
(a) * * *
Data means all recorded information,
regardless of the form, method of
recording, or the media on which it may
be recorded. * * *
*
*
*
*
*
Unlimited rights means the rights of
the Government to use, modify, prepare
PO 00000
Frm 00048
Fmt 4702
Sfmt 4702
20827
derivative works, reproduce, release,
perform, display, disclose, or distribute
data in whole or in part, in any manner
and for any purpose whatsoever, and to
have or permit others to do so.
*
*
*
*
*
52.227–18
[Amended]
14. Amend section 52.227–18 by
removing from the introductory text the
phrase ‘‘27.409’’ and adding ‘‘27.410’’ in
its place.
■
52.227–19
[Amended]
15. Amend section 52.227–19 by
removing from the introductory text the
phrase ‘‘27.409’’ and adding ‘‘27.410’’ in
its place.
■ 16. Amend section 52.227–20 by—
■ a. Revising the section heading;
■ b. Removing from the introductory
text the phrase ‘‘27.409’’ and adding
‘‘27.410’’ in its place;
■ c. Revising the date and title of the
clause;
■ d. In paragraph (a):
■ i. Revising the definition ‘‘Computer
database or database’’;
■ ii. Adding in alphabetic order the
definition ‘‘Computer program’’;
■ iii. Revising the definition ‘‘Computer
software’’;
■ iv. Revising the first sentence in the
definition of ‘‘Data’’;
■ v. Adding in alphabetic order the
definitions ‘‘Government purpose’’,
‘‘Government purpose rights’’,
‘‘Operations, maintenance, installation,
or training purposes (OMIT) data’’, and
‘‘SBIR/STTR computer software rights’’;
■ vi. Revising the paragraph headings
and text of the definitions of ‘‘SBIR
data’’ and ‘‘SBIR rights’’;
■ vii. Adding in alphabetic order the
definitions ‘‘SBIR/STTR protection
period’’, ‘‘SBIR/STTR technical data’’,
and ‘‘SBIR/STTR technical data rights’’;
and
■ viii. Revising the definition of
‘‘Unlimited rights’’;
■ e. In paragraph (b):
■ i. Redesignating paragraphs (b)(1) and
(2) as paragraphs (b)(2) and (3), and
adding a new paragraph (b)(1);
■ ii. In the newly redesignated
paragraph (b)(2) revising the
introductory text, and paragraphs
(b)(2)(iii) and (b)(2)(iv);
■ iii. In the newly redesignated
paragraph (b)(3)(ii) removing the phrase
‘‘SBIR rights in SBIR data’’ and adding
‘‘SBIR/STTR data rights in SBIR/STTR
data’’ in its place; and
■ iv. In the newly redesignated
paragraph (b)(3)(iii) removing the phrase
‘‘SBIR rights’’ and adding ‘‘SBIR/STTR
data rights’’ in its place;
■ f. Revising paragraph (d);
■
E:\FR\FM\07APP1.SGM
07APP1
20828
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
g. Removing from paragraph (f) the
phrase ‘‘(b)(1)(i)’’ and adding ‘‘(b)(2)(i)’’
in its place; and
■ h. Revising the paragraph (g) heading.
The revisions and additions read as
follows:
■
52.227–20 Rights in Data—Small Business
Innovation Research (SBIR) and Small
Business Technology Transfer (STTR)
Programs.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
Rights in Data—Small Business
Innovation Research (SBIR) and Small
Business Technology Transfer (STTR)
Programs (DATE)
(a) * * *
Computer database or database
means a collection of data recorded in
a form capable of being processed by a
computer. The term does not include
computer software.
Computer program means a set of
instructions, rules, or routines recorded
in a form that is capable of causing a
computer to perform a specific
operation or series of operations.
Computer software means computer
programs, source code, source code
listings, object code listings, design
details, algorithms, processes, flow
charts, formulae, and related material
that would enable the software to be
reproduced, recreated, or recompiled.
Computer software does not include
computer databases or computer
software documentation.
*
*
*
*
*
Data means all recorded information,
regardless of the form, method of
recording, or the media on which it may
be recorded. * * *
*
*
*
*
*
Government purpose means any
activity in which the U.S. Government
or a Federally Funded Research and
Development Center is a party,
including cooperative agreements with
international or multi-national defense
organizations or sales or transfers by the
U.S. Government to foreign
governments or international
organizations. Government purposes
include competitive procurement, but
do not include the rights to use, modify,
reproduce, release, perform, display, or
disclose technical data or computer
software for commercial purposes or
authorize others to do so.
Government purpose rights means the
Government’s royalty-free license, after
the SBIR/STTR protection period, to
use, modify, reproduce, release,
perform, display, or disclose SBIR/STTR
data within the Government without
restriction; and release or disclose SBIR/
STTR data outside the Government and
authorize persons to whom release or
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
disclosure has been made to use,
modify, reproduce, release, perform,
display, or disclose that data for
Government purposes.
*
*
*
*
*
Operations, maintenance,
installation, or training purposes
(OMIT) data means data that is
necessary for operation, maintenance,
installation, or training purposes (but
not including detailed manufacturing or
process data).
*
*
*
*
*
SBIR/STTR computer software rights
means the Government’s rights during
the SBIR/STTR protection period (for
the Government’s rights after the
protection period see the definition of
‘‘government purpose rights’’ in this
clause) to—
(1) Use, modify, reproduce, release,
perform, display, or disclose SBIR/STTR
data that are computer software within
the Government for the following
purposes:
(i) Use in Government computer(s);
(ii) Archival or backup;
(iii) Modify, adapt, or combine with
other computer software, provided that
the modified, adapted or combined
portion of the software incorporating
any of the delivered, restricted
computer software shall be subject to
the same SBIR/STTR computer software
rights; or
(iv) Distribute to another agency if,
prior to the distribution, the Contractor
is notified of the distribution and the
identity of the recipient, and a copy of
the SBIR/STTR computer software
rights is provided to the recipient.
(2) Release or disclose SBIR/STTR
data that are computer software outside
the Government to support service
contractors or their subcontractors for
purposes described in paragraphs (1)(i)
through (1)(iii) of this definition,
including evaluation, repair, overhaul,
and adaptation, combination, or
integration with other computer
software, and subject to prohibition
against further use and disclosure.
SBIR/STTR data means all data first
produced by a Contractor in the
performance of an SBIR or STTR award,
including technical data and computer
software developed or generated in the
performance of an SBIR or STTR award.
The term does not include publicly
available information, information
otherwise available to the Government,
or information incidental to contract
administration, such as financial,
administrative, cost or pricing or
management information.
SBIR/STTR data rights means the
Government’s royalty-free license rights
in properly marked SBIR/STTR data
PO 00000
Frm 00049
Fmt 4702
Sfmt 4702
during the SBIR/STTR protection period
as follows: SBIR/STTR technical data
rights and SBIR/STTR computer
software rights. Upon expiration of the
protection period for SBIR/STTR data,
the Government has government
purpose rights in perpetuity in the
SBIR/STTR data, and is relieved of
disclosure prohibitions related to such
government purposes and assumes no
liability for unauthorized use of these
data by third parties.
SBIR/STTR protection period means
the period of time during which the
Government is obligated to protect
SBIR/STTR data against unauthorized
use and disclosure in accordance with
SBIR/STTR data rights. The SBIR/STTR
protection period begins at award of an
SBIR or STTR contract and ends not less
than 20 years from that date, unless
negotiated otherwise after award. (See
section 8(b)(4) of the SBIR and STTR
Policy Directive, https://www.sbir.gov).
SBIR/STTR technical data means
SBIR/STTR data that is technical data.
SBIR/STTR technical data rights
means the Government’s rights to use
SBIR/STTR technical data during the
SBIR/STTR protection period (for the
Government’s rights after the protection
period see the definition of
‘‘government purpose rights’’ in this
clause) to—
(1) Use, modify, reproduce, release,
perform, display, or disclose SBIR/STTR
technical data within the Government,
except for procurement, manufacturing,
or commercial purposes without written
permission of the Contractor; and
(2) Release or disclose outside the
Government, subject to prohibition
against further use and disclosure (e.g.,
nondisclosure agreement), for the
following purposes:
(i) Use (except for manufacturing,
procurement or commercial use) by
Government support service contractors
in performance of a Government
support services contract for internal
Government use, i.e., 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, such as providing
evaluation, diagnosis, or modification;
(ii) Evaluation; or
(iii) Release to a foreign government,
if required to serve the interests of the
U.S. Government, for informational and
evaluation purposes.
*
*
*
*
*
Unlimited rights means the rights of
the Government to use, modify, prepare
derivative works, reproduce, release,
E:\FR\FM\07APP1.SGM
07APP1
Federal Register / Vol. 88, No. 67 / Friday, April 7, 2023 / Proposed Rules
perform, display, disclose, or distribute
data in whole or in part, in any manner
and for any purpose whatsoever, and to
have or permit others to do so.
(b) Allocation of rights.(1) The SBIR/
STTR data rights are to be interpreted
consistent with SBA’s SBIR and STTR
policy directive. However, if there is an
inconsistency between this clause and
the SBIR and STTR policy directive, this
clause governs.
(2) Except as provided in paragraph
(c) of this clause regarding copyright,
the Government shall have unlimited
rights both during and after the
protection period in—
*
*
*
*
*
(iii) Data delivered under this contract
(except for restricted computer software)
that constitute manuals or instructional
and training material for installation,
operation, or routine maintenance and
repair of items, components, or
processes delivered or furnished for use
under this contract, i.e., OMIT data; and
(iv) All other data delivered under
this contract unless provided otherwise
for SBIR/STTR data in accordance with
paragraph (d) of this clause or for
limited rights data or restricted
computer software in accordance with
paragraph (f) of this clause.
*
*
*
*
*
(d) Rights to and marking of SBIR/
STTR data. (1) The Contractor is
authorized to affix the following ‘‘SBIR/
STTR Data Rights Notice’’ to SBIR/STTR
data delivered under this contract and
the Government will treat the data,
subject to the provisions of paragraphs
(e) and (f) of this clause, in accordance
with the notice:
ddrumheller on DSK120RN23PROD with PROPOSALS1
SBIR/STTR Data Rights Notice (DATE)
These SBIR/STTR data are furnished
with SBIR/STTR data rights under
Contract number l, date of award l
(and subcontract number l, if
appropriate). For a period of 20 years,
starting from the date of award, the
Government will have SBIR/STTR
technical data rights or SBIR/STTR
computer software rights in these data
as defined in paragraph (a) of the clause
52.227–20 Rights in Data—Small
Business Innovation Research (SBIR)
and Small Business Technology
Transfer (STTR) Programs, included in
the above identified contract, and they
shall not be disclosed outside the
Government (including disclosure for
procurement purposes) during such
period without permission of the
Contractor (unless specifically
permitted elsewhere in the contract
pursuant to post-award negotiations),
except that, subject to the foregoing use
and disclosure prohibitions, these data
VerDate Sep<11>2014
17:18 Apr 06, 2023
Jkt 259001
may be disclosed for use by support
Contractors. After the SBIR/STTR
protection period ends, the Government
has Government purpose rights in this
data as defined in paragraph (a) of
52.227–20. This notice shall be affixed
to any reproductions of these data, in
whole or in part.
(End of Notice)
(2) If the Contractor and the
contracting officer negotiate a different
SBIR/STTR protection period after
award of the contract, the Contractor
shall revise the SBIR/STTR Data Rights
Notice to reflect the negotiated
protection period.
(3) The Government’s sole obligation
with respect to any SBIR/STTR data
shall be as set forth in this paragraph
(d).
*
*
*
*
*
(g) Subcontracts. * * *
*
*
*
*
*
52.227–21
[Amended]
17. Amend section 52.227–21 by
removing from the introductory text
‘‘27.409’’ and adding ‘‘27.410’’ in its
place.
■
52.227–22
[Amended]
18. Amend section 52.227–22 by
removing from the introductory text
‘‘27.409’’ and adding ‘‘27.410’’ in its
place.
■
52.227–23
[Amended]
19. Amend section 52.227–23 by
removing from the introductory text
‘‘27.409’’ and adding ‘‘27.410’’ in its
place.
■
[FR Doc. 2023–06420 Filed 4–6–23; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 224
[Docket No. 230403–0090; RTID 0648–
XR118]
Endangered and Threatened Wildlife
and Plants; Listing the Atlantic
Humpback Dolphin as an Endangered
Species Under the Endangered
Species Act
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
PO 00000
Frm 00050
Fmt 4702
Sfmt 4702
20829
We, NMFS, have completed a
comprehensive status review under the
Endangered Species Act (ESA) for the
Atlantic humpback dolphin (Sousa
teuszii) in response to a petition from
the Animal Welfare Institute, the Center
for Biological Diversity, and VIVA
Vaquita to list the species. Based on the
best scientific and commercial
information available, including the
draft status review report, and taking
into account efforts being made to
protect the species, we have determined
that the Atlantic humpback dolphin has
a high risk of extinction throughout its
range and warrants listing as an
endangered species. This species occurs
only in coastal Atlantic waters of
western Africa. We are authorized to
designate critical habitat within U.S.
jurisdiction only, and we are not aware
of any areas within U.S jurisdiction that
may meet the definition of critical
habitat under the ESA. Therefore, we
are not proposing to designate critical
habitat. We are soliciting public
comments on our draft status review
report and proposal to list this species.
DATES: Comments on this proposed rule
must be received by June 6, 2023. Public
hearing requests must be made by May
22, 2023.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2021–0110, by the following
method:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov and enter
NOAA–NMFS–2021–0110 in the Search
box. Click on the ‘‘Comment’’ icon,
complete the required fields, and enter
or attach your comments.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
The petition, status review report,
Federal Register notices, and the list of
references can be accessed
electronically online at: https://
www.fisheries.noaa.gov/species/
atlantic-humpbackdolphin#conservation-management.
SUMMARY:
E:\FR\FM\07APP1.SGM
07APP1
]]>Agencies
[Federal Register Volume 88, Number 67 (Friday, April 7, 2023)]
[Proposed Rules]
[Pages 20822-20829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06420]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 6, 27, and 52
[FAR Case 2020-010, Docket No. FAR-2020-0010, Sequence No. 1]
RIN 9000-AO12
Federal Acquisition Regulation: Small Business Innovation
Research and Technology Transfer Programs
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement changes related to data
rights in the Small Business Administration's Policy Directive for the
Small Business Innovation Research (SBIR) and Small Business Technology
Transfer (STTR) Programs, published in the Federal Register on April 2,
2019. In addition, this proposed rule would implement competition
requirements unique to Phase II and III awards under the SBIR/STTR
Programs.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
June 6, 2023 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2020-010 to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``FAR Case 2020-010''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2020-010''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
[[Page 20823]]
company name (if any), and ``FAR Case 2020-010'' on your attached
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite ``FAR Case 2020-
010'' in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. Public comments may be submitted as an individual, as an
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s),
please check https://www.regulations.gov, approximately two to three
days after submission to verify posting.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Mahruba Uddowla, Procurement Analyst, at 703-605-2868, or by email
at [email protected]. For information pertaining to status,
publication schedules, or alternative instructions for submitting
comments if https://www.regulations.gov cannot be used, contact the
Regulatory Secretariat Division at 202-501-4755 or [email protected].
Please cite FAR Case 2020-010.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to implement
changes related to data rights that are necessary to comply with the
Small Business Administration's SBIR and STTR Policy Directive (PD)
published in the Federal Register on April 2, 2019 (84 FR 12794). In
addition, this rule implements competition requirements unique to Phase
II and III awards under the SBIR/STTR Programs.
Prior to the April 2019 revision, the PD, FAR, and Defense Federal
Acquisition Regulation Supplement (DFARS) each had different
terminology and data rights allocations for SBIR/STTR data. The
inconsistencies may have led to confusion and placed an unnecessary
burden on small businesses because they had to operate under three
different interpretations of the same programs. The revisions to the PD
were intended to create uniformity and clarity regarding the
Government's rights in SBIR/STTR data. To achieve this objective, the
FAR must be updated to adopt the terminology, definitions, and data
rights allocations described in the most recent update of the SBIR/STTR
PD.
II. Discussion and Analysis
The proposed rule reflects SBA's updated SBIR/STTR PD terminology,
revisions to the data rights afforded to the Government and the
extension of the SBIR/STTR data rights protection period from a minimum
of 4 years to 20 years. The rule also clarifies direction for
contracting officers pertaining to document retention and competition
requirements. A summary of the proposed changes follows:
A. FAR Part 2
The definitions for ``computer database'' and ``computer software''
are revised in FAR part 2 to harmonize terminology that applies to the
SBIR/STTR programs with terminology used in the rest of the FAR and
DFARS. These definitions reflect those used in SBA's SBIR/STTR PD to
the greatest extent possible. In some instances, similar language has
been used to convey the intent of the PD for contracting officers. As a
conforming change to the revised definition for ``computer software,''
a separate definition for ``computer program'' is added to FAR part 2.
B. FAR Part 4
Due to the expansion of the SBIR/STTR data rights protection period
from a minimum of 4 years after acceptance of all items under the
contract to 20 years after the date of award, a new records retention
category is proposed at FAR 4.805(c)(9) for contracts involving SBIR/
STTR data rights. The proposed addition would require SBIR/STTR
contracts that contain the revised FAR clause 52.227-20, Rights in
Data-SBIR/STTR Programs, to be retained for 20 years after award rather
than 6 years after final payment, to coincide with the new protection
period.
C. FAR Part 6
The proposed rule adds text at FAR 6.302-5, Authorized or required
by statute, to clarify that contracting officers may award sole-source
actions under Phase III of the SBIR/STTR programs without further
justification based upon the statutory authority in the Small Business
Act (15 U.S.C. 638(r)(4)). Guidance is also provided for instances when
Phase II sole-source actions may be awarded without justification (15
U.S.C. 638(ff) and the SBA PD).
D. FAR Part 27
Changes were made to the definitions of ``data'' and ``unlimited
rights'' at FAR 27.401 to reflect the SBIR/STTR PD definitions. The
definition of ``unlimited rights'' was revised to no longer specify
data that can be performed or displayed publicly. The revision does not
remove the Government's ability to perform publicly or display
publicly; the revision is made to cover the Government's right to
perform and display both in public settings and non-public settings.
A new section is created in subpart 27.4 to cover the SBIR and STTR
programs. It would give basic information on the program. It would also
provide instructions to contracting officers that are specific to
contracts awarded under the SBIR/STTR programs. The instructions relate
to the procedures of negotiating a different protection period than the
new minimum period of 20 years after award as well as the requirements
associated with further release or disclosure of SBIR/STTR data outside
the Government. As a result of the creation of this new section, the
current section of 27.409 is proposed to be renumbered as 27.410.
The SBIR/STTR PD made several revisions to the SBIR/STTR program
which are reflected in the prescription at newly-designated FAR
27.410(h).
E. FAR Part 52
The definitions at FAR clauses 52.227-14, Rights in Data-General;
52.227-17, Rights in Data-Special Works; and 52.227-20, Rights in Data-
SBIR/STTR Programs, are revised to reflect the updated 2.101 and 27.401
definitions--see Section II. A and D of this preamble.
FAR clause 52.227-20, Rights in Data-SBIR/STTR Programs, is revised
in the title to become ``Rights in Data--Small Business Innovation
Research (SBIR) and Small Business Technology Transfer (STTR)
Programs'', and to add definitions for ``Government purpose,''
``Government purpose rights,'' ``Operations, maintenance, installation,
or training purposes (OMIT) data,'' ``SBIR/STTR computer software
rights,'' ``SBIR/STTR protection period,'' ``SBIR/STTR technical
data,'' and ``SBIR/STTR technical data rights.'' These definitions
reflect those used in SBA's SBIR/STTR PD to the greatest extent
possible. In some instances, different language has been used to
harmonize terminology that applies to the SBIR/STTR programs with
terminology used in the rest of the FAR and DFARS. Also, in some
instances additional or different language is used in the definition to
provide further clarity to contracting officers and contractors.
Regardless of
[[Page 20824]]
whether the definitions proposed for the FAR are the same or different
from the definitions in the PD, the intent is for the FAR definitions
to be consistent with the SBIR/STTR PD.
The terms ``SBIR data'' and ``SBIR rights'' in FAR clause 52.227-20
have been updated as ``SBIR/STTR data'' and ``SBIR/STTR data rights'',
and to reflect both SBIR/STTR programs. The definitions of the two
terms have been updated to be consistent with the SBIR and STTR PD. The
definition of ``technical data'' is not being revised in the FAR since
the FAR definition is statutory (41 U.S.C. 116). SBA has confirmed that
the ``technical data'' definition in the SBIR and STTR PD was not
intended to differ from the statutory definition. Language is also
added at 52.227-20(b) to clarify that the SBIR/STTR data rights
provided in the clause are to be interpreted consistent with the SBIR
and STTR PD. However, if there is inconsistency between the FAR clause
and the SBIR and STTR PD, the clause governs; this is standard protocol
in the FAR. If there are substantive changes to the PD in the future,
DoD, GSA, and NASA will pursue rulemaking to update the FAR
accordingly.
The Rights Notice in FAR clause 52.227-20(d) is revised to reflect
the fact that the clause now covers both SBIR/STTR programs and to
reflect the increase in the protection period from 4 years after
acceptance of all items under the contract to 20 years after the date
of award. As a logistical matter that will promote compliance with the
protection period, the Notice is revised to require inclusion of the
contract award date. The Notice is also revised to reflect the new
terminology and definitions added to the clause.
Consistent with the SBIR/STTR PD, FAR clause 52.227-20 is also
revised to authorize contractors and contracting officers to negotiate
a different protection period, after award of the contract. The clause
at paragraph (d)(2) will require contractors, in such a scenario, to
update their Rights Notice to reflect the negotiated protection period.
Conforming changes are proposed for all the clauses and provisions
prescribed in FAR subpart 27.4, due to the renumbering of the section
containing the prescriptions from 27.409 to 27.410.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items) or for Commercial Services
This rule amends the clauses at FAR 52.227-14, Rights in Data--
General, 52.227-17, Rights in Data--Special Works, and 52.227-20,
Rights in Data--SBIR/STTR Programs, but this rule does not change the
applicability of these existing clauses included in contracts valued at
or below the SAT, or for commercial products (including COTS items) and
commercial services.
IV. Expected Impact of the Rule
This rule is expected to impact the contractors awarded contracts
under the SBIR/STTR programs and subject to FAR clause 52.227-20, which
addresses data rights.
Contractors awarded contracts under the SBIR/STTR programs will
benefit from having a single FAR clause that will uniformly govern
awards under both programs, provide for a longer protection period, and
use consistent terminology across the programs and other contract
awards outside the programs that are subject to the FAR or DFARS.
The FAR does not currently contain a clause applicable to contracts
awarded under the STTR program. SBA has combined the SBIR and STTR
policy directives into a single document, which makes it easier for
this proposed rule to update the FAR SBIR clause to cover both
programs. Currently in the FAR, the period of time during which the
Government is obligated to protect a contractor's SBIR/STTR data
against unauthorized use and disclosure, i.e., protection period, is
four years. Consistent with the SBIR/STTR PD, this proposed rule seeks
to increase the protection period to 20 years. The longer protection
period incentivizes the Government to make subsequent awards, under
phases II and III, to the small business that developed the technology
under a phase I award. Therefore, small businesses are incentivized to
participate in the SBIR/STTR programs in the first place. An added
benefit of the 20-year protection period is that it covers the
timeframe necessary for many technologies to be commercialized and
mirrors the length of the patent protection period. In addition, this
rule is expected to reduce confusion and burden on small businesses by
adopting the updates to the SBIR/STTR PD, which in turn created
uniformity and clarity regarding contractors' and the Government's
rights in SBIR/STTR data.
This rule is also expected to benefit contractors that participate
under the SBIR/STTR programs by clarifying for contracting officers the
authority to make sole-source awards under phases II and III under the
programs. Clarifying the authority should drive greater use of the
programs by the Government and perhaps greater participation by small
businesses.
On the Government side, the rule is expected to reduce burden on
contracting officers by clarifying that further justification is not
necessary when using the sole-source authority provided under the SBIR/
STTR programs. This is also expected to reduce the burden and confusion
on contracting officers because the protection period will have a clear
start and end date. Previously, the start date was four years from the
date of acceptance of all deliverables. The triggers for the protection
period were not always clear. This proposed rule changes the start date
of the protection period to the date of award, which is something that
is clearly noted on the contract itself. Therefore there is no reason
for confusion. The proposed rule also provides explicit direction on
the records retention period for contracts subject to the FAR clause.
This will benefit the Government by ensuring contract files are
retained long enough for the Government to comply with the data rights
requirements, enforce its data rights, and defend itself in the event
of litigation.
V. 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 under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VI. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because
small business contractors
[[Page 20825]]
under the SBIR/STTR Programs represent less than one percent of all
small businesses that are looking for Federal contract opportunities.
However, an Initial Regulatory Flexibility Analysis (IRFA) has been
performed and is summarized as follows:
DoD, GSA, and NASA are proposing to revise the FAR to implement
changes related to data rights in the Small Business
Administration's Policy Directive for the Small Business Innovation
Research (SBIR) and Small Business Technology Transfer (STTR)
Programs, published in the Federal Register on April 2, 2019 (84 FR
12794).
The objective of this rule is to update the FAR coverage related
to the SBIR and STTR Programs to be consistent with the 2019 changes
SBA made to the Policy Directive governing those Programs. In
addition, this rule is intended to implement competition
requirements unique to Phase II and III awards under the SBIR/STTR
Programs.
Section 9 of the Small Business Act (15 U.S.C. 638) requires SBA
to issue a policy directive setting forth guidance to the Federal
agencies participating in the SBIR/STTR Programs. In addition, 15
U.S.C. 638(r)(4) authorizes sole-source awards under phase III of
the SBIR and STTR Programs.
Prior to SBA's 2019 revision of the Policy Directive, there were
different terminology and data rights allocations for SBIR/STTR data
contained in SBA's Policy Directive, the FAR, and DoD's supplement
to the FAR, the Defense Federal Acquisition Regulation Supplement.
This inconsistency may have led to confusion and created a burden on
small businesses to understand three different data rights regimes
for the same programs. SBA's intent when revising the data rights
provisions of the Policy Directive was to create uniformity and
clarity regarding the Government's rights in SBIR/STTR data. To
achieve this goal the FAR must be updated to adopt the terminology,
definitions, and data rights allocations described in the most
recent update of the Policy Directive.
The proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning
of the Regulatory Flexibility Act, 5 U.S.C. 601-612. As of January
2022, there were over 415,000 small business registrants in the
System for Award Management. This rule will impact entities awarded
contracts under the SBIR/STTR Programs. Based on data from the
Federal Procurement Data System (FPDS) for fiscal years 2020 through
2022, there were approximately 12,736 contract awards made to 4,961
unique entities under the SBIR and STTR Programs. Of those 4,961
unique entities, 4,882 were small businesses. While past awards
under the SBIR and STTR Programs are not a perfect indicator of all
small entities that may be impacted by this rule (i.e., there may be
more, fewer, or different small entities that receive future awards
under the Programs than the entities that received the awards in the
past), considering the combined data from three fiscal years is a
reasonable estimator of the scope/scale of the rule's likely impact.
The 4,882 small business contractors under the SBIR and STTR
Programs represent approximately 1 percent of all small businesses
that are looking for Federal contract opportunities.
Of the limited number of small businesses to which this rule
will apply, there is expected to be positive economic impact. Beyond
standardizing and clarifying terminology, this rule also implements
the change in the Policy Directive, which extends the data rights
protection period from 4 years to 20 years. This longer protection
period benefits small businesses by providing the timeframe
necessary for many technologies to be commercialized and by
mirroring the length of the patent protection period.
This proposed rule does not include any new substantive
reporting, recordkeeping, or other compliance requirements for small
businesses. The rule does not impose additional information
collection requirements to the paperwork burden previously approved
by the Office of Management and Budget (OMB) under the Paperwork
Reduction Act (44 U.S.C. 3501-3521), Control Number 9000-0090,
Rights in Data and Copyrights. The existing information collection
already accounts for the reporting associated with the requirement
to affix a notice to SBIR/STTR data delivered under the contract.
The notice already requires the contractor to fill in the contract
and subcontract number; this rule proposes the notice to also
include a fill-in for the contract award date. The burden associated
with the additional fill-in is considered de minimis.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
DoD, GSA, and NASA were unable to identify any alternatives to
the rule that would reduce the impact on small entities and still
implement requirements consistent with the 2019 SBA Policy
Directive.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA, and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2020-010),
in correspondence.
VII. Paperwork Reduction Act
This rule affects the information collection requirements in the
clause at FAR 52.227-20, currently approved under OMB Control Number
9000-0090, Rights in Data and Copyrights, in accordance with the
Paperwork Reduction Act (44 U.S.C. 3501-3521). The impact, however, is
negligible. The existing information collection already accounts for
the reporting associated with the requirement to affix a notice to
SBIR/STTR data delivered under the contract. The notice already
requires the contractor to fill in the contract and subcontract number;
this rule proposes the notice to also include a fill-in for the
contract award date. The burden associated with the additional fill-in
is considered de minimis.
List of Subjects in 48 CFR Parts 2, 4, 6, 27, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 4,
6, 27, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 4, 6, 27, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101, in paragraph (b)(2), by:
0
a. Revising the definition ``Computer database or database'';
0
b. Adding in alphabetic order the definition ``Computer program''; and
0
c. Revising the definition ``Computer software''.
The addition and revisions read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
* * * * *
Computer database or database means a collection of data recorded
in a form capable of being processed by a computer. The term does not
include computer software.
Computer program means a set of instructions, rules, or routines
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae, and related material that would enable the
software to be reproduced, recreated, or recompiled.
[[Page 20826]]
Computer software does not include computer databases or computer
software documentation.
* * * * *
PART 4--ADMINISTRATIVE AND INFORMATION MATTERS
0
3. Amend section 4.805 by revising paragraphs (c) introductory text and
(c)(1) and adding paragraph (c)(9) to read as follows:
4.805 Storage, handling, and contract files.
* * * * *
(c) An agency that requires a shorter retention period than those
identified in Table 4-1, except for contracts involving data rights
under the Small Business Innovation Research (SBIR) Program or Small
Business Technology Transfer (STTR) Program (see paragraph (c)(1) of
this section for minimum contract retention period), shall request
approval from NARA through the agency's records officer.
Table 4-1--Retention Periods
------------------------------------------------------------------------
Record Retention period
------------------------------------------------------------------------
(1) Contracts (and related records or 6 years after final payment.
documents, including successful and
unsuccessful proposals, except see
paragraph (c)(2) of this section
regarding contractor payrolls
submitted under construction contracts
and see paragraph (c)(9) of this
section regarding contracts under the
SBIR Program or STTR Program.).
* * * * * * *
(9) Contracts involving SBIR/STTR data 20 years after contract award,
rights which include FAR clause 52.227- or at the end of the
20. protection period as specified
in FAR 52.227-20 as it appears
in the contract, whichever is
later.
------------------------------------------------------------------------
PART 6--COMPETITION REQUIREMENTS
0
4. Amend section 6.203 by revising the second sentence of paragraph (a)
to read as follows:
6.203 Set-asides for small business concerns.
(a) * * * This includes contract actions conducted under the Small
Business Innovation Research (SBIR) or Small Business Technology
Transfer (STTR) Program established under 15 U.S.C. 638.
* * * * *
0
5. Amend section 6.302-5 by adding paragraph (b)(8), and revising
paragraph (c)(2)(i) to read as follows:
6.302-5 Authorized or required by statute.
* * * * *
(b) * * *
(8)(i) Sole-source awards under phase III of the Small Business
Innovation Research (SBIR) or Small Business Technology Transfer (STTR)
programs (15 U.S.C. 638(r)(4)).
(ii) One sequential sole-source award under phase II if the award
follows a competitive phase II award (15 U.S.C. 638(ff) and section
(4)(b)(5) of the SBA ``Small Business Innovation Research (SBIR) and
Small Business Technology Transfer (STTR) Program Policy Directive''
(published April 2, 2019; see https://www.sbir.gov), as amended).
(c) * * *
(2) * * *
(i) Contracts awarded under paragraph (a)(2)(ii), (b)(2), or (b)(8)
of this section;
* * * * *
PART 27--PATENTS, DATA, AND COPYRIGHTS
0
6. Amend section 27.401 by revising the first sentence in the
definition ``Data'', and revising the definition ``Unlimited rights''
to read as follows:
27.401 Definitions.
* * * * *
Data means all recorded information, regardless of the form, method
of recording, or the media on which it may be recorded. * * *
* * * * *
Unlimited rights means the rights of the Government to use, modify,
prepare derivative works, reproduce, release, perform, display,
disclose, or distribute data in whole or in part, in any manner and for
any purpose whatsoever, and to have or permit others to do so.
27.409 [Redesignated as section 27.410]
0
7. Redesignate section 27.409 as section 27.410.
0
8. Add a new section 27.409 to read as follows:
27.409 Small Business Innovation Research (SBIR) and Small Business
Technology Transfer (STTR) programs.
(a) The purpose of the SBIR and STTR programs is to strengthen the
role of innovative small business concerns in Federally-funded research
or research and development. Certain agencies are required to
participate in the SBIR/STTR programs.
(b) The SBIR and STTR programs are authorized by 15 U.S.C. 638. The
statute directs the Small Business Administration (SBA) to issue a
Policy Directive. SBA published its Policy Directive in the Federal
Register; SBA keeps the Policy Directive updated by publishing
revisions in the Federal Register. The current Policy Directive is
available online at https://www.sbir.gov.
(c) The programs have three phases of awards. The purpose of Phase
I awards is to establish technical merit, feasibility, and commercial
potential. Phase II awards continue the research and development
efforts initiated in Phase I. The purpose of Phase III awards is to
pursue commercialization objectives for future sale or use by the
Federal Government or commercial markets.
(d) Solicitations and contracts awarded under the SBIR/STTR
programs must include clause 52.227-20, Rights in Data--Small Business
Innovation Research (SBIR) and Small Business Technology Transfer
(STTR) Programs (see 27.410(h)).
(1) The period of time during which the Government is obligated to
protect SBIR/STTR data against unauthorized use and disclosure, i.e.,
the SBIR/STTR protection period, begins at award of a SBIR/STTR
contract and ends not less than 20 years from that date. After award of
the contract, the contractor and the contracting officer may negotiate
a different SBIR/STTR protection period. If a different SBIR/STTR
protection period is negotiated, paragraph (d) of clause 52.227-20
requires the contractor to revise the SBIR/STTR Rights Notice to
reflect the negotiated protection period.
(2) With regard to the release or disclosure of SBIR/STTR data
outside the Government, as referenced in the definitions of ``SBIR/STTR
computer
[[Page 20827]]
software rights'' and ``SBIR/STTR technical data rights'' in paragraph
(a) of clause 52.227-20, contracting officers shall require prohibition
against further use and disclosure by support service contractors or
their subcontractors (e.g., by using a nondisclosure agreement). For
terms required to be included in the prohibition, consult section 8(c)
of the Small Business Innovation Research (SBIR) and Small Business
Technology Transfer (STTR) Program Policy Directive (84 FR 12794, April
2, 2019; see https://www.sbir.gov), as amended.
0
9. Amend the newly redesignated section 27.410 by revising paragraph
(h) to read as follows:
27.410 Solicitation provisions and contract clauses
* * * * *
(h) If the contract is a SBIR or STTR contract, insert the clause
at 52.227-20, Rights in Data--Small Business Innovation Research (SBIR)
and Small Business Technology Transfer (STTR) Programs, in all Phase I,
Phase II, and Phase III contracts awarded under the SBIR or STTR
Program established pursuant to 15 U.S.C. 638. This clause implements
15 U.S.C. 638 and the Small Business Administration's ``Small Business
Innovation Research (SBIR) and Small Business Technology Transfer
(STTR) Program Policy Directive'' (84 FR 12794, April 2, 2019; see
https://www.sbir.gov).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
10. Amend section 52.227-14 by--
0
a. Removing from the introductory text the phrase ``27.409'' and adding
``27.410'' in its place;
0
b. Revising the date of the clause;
0
c. In paragraph (a):
0
i. Revising the definition ``Computer database or database'';
0
ii. Adding in alphabetical order the definition ``Computer program'';
0
iii. Revising the definition ``Computer software'';
0
iv. Revising the first sentence in the definition of ``Data'';
0
v. Revising the definition ``Unlimited rights''; and
0
d. Removing from the introductory text of Alternate I through V the
phrase ``27.409'' and adding ``27.410'' in its place.
The revisions and addition read as follows:
52.227-14 Rights in Data--General
* * * * *
Rights in Data--General (Date)
(a) * * *
Computer database or database means a collection of data recorded
in a form capable of being processed by a computer. The term does not
include computer software.
Computer program means a set of instructions, rules, or routines
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae, and related material that would enable the
software to be reproduced, recreated, or recompiled. Computer software
does not include computer databases or computer software documentation.
Data means all recorded information, regardless of the form, method
of recording, or the media on which it may be recorded. * * *
* * * * *
Unlimited rights means the rights of the Government to use, modify,
prepare derivative works, reproduce, release, perform, display,
disclose, or distribute data in whole or in part, in any manner and for
any purpose whatsoever, and to have or permit others to do so.
* * * * *
52.227-15 [Amended]
0
11. Amend section 52.227-15 by removing from the introductory text
``27.409'' and adding ``27.410'' in its place.
52.227-16 [Amended]
0
12. Amend section 52.227-16 by removing from the introductory text the
phrase ``27.409'' and adding ``27.410'' in its place.
0
13. Amend section 52.227-17 by--
0
a. Removing from the introductory text the phrase ``27.409'' and adding
``27.410'' in its place;
0
b. Revising the date of the clause;
0
c. In paragraph (a):
0
i. Revising the first sentence in the definition of ``Data''; and
0
ii. Revising the definition ``Unlimited rights''.
The revisions read as follows:
52.227-17 Rights in Data--Special Works.
* * * * *
Rights in Data--Special Works (Date)
(a) * * *
Data means all recorded information, regardless of the form, method
of recording, or the media on which it may be recorded. * * *
* * * * *
Unlimited rights means the rights of the Government to use, modify,
prepare derivative works, reproduce, release, perform, display,
disclose, or distribute data in whole or in part, in any manner and for
any purpose whatsoever, and to have or permit others to do so.
* * * * *
52.227-18 [Amended]
0
14. Amend section 52.227-18 by removing from the introductory text the
phrase ``27.409'' and adding ``27.410'' in its place.
52.227-19 [Amended]
0
15. Amend section 52.227-19 by removing from the introductory text the
phrase ``27.409'' and adding ``27.410'' in its place.
0
16. Amend section 52.227-20 by--
0
a. Revising the section heading;
0
b. Removing from the introductory text the phrase ``27.409'' and adding
``27.410'' in its place;
0
c. Revising the date and title of the clause;
0
d. In paragraph (a):
0
i. Revising the definition ``Computer database or database'';
0
ii. Adding in alphabetic order the definition ``Computer program'';
0
iii. Revising the definition ``Computer software'';
0
iv. Revising the first sentence in the definition of ``Data'';
0
v. Adding in alphabetic order the definitions ``Government purpose'',
``Government purpose rights'', ``Operations, maintenance, installation,
or training purposes (OMIT) data'', and ``SBIR/STTR computer software
rights'';
0
vi. Revising the paragraph headings and text of the definitions of
``SBIR data'' and ``SBIR rights'';
0
vii. Adding in alphabetic order the definitions ``SBIR/STTR protection
period'', ``SBIR/STTR technical data'', and ``SBIR/STTR technical data
rights''; and
0
viii. Revising the definition of ``Unlimited rights'';
0
e. In paragraph (b):
0
i. Redesignating paragraphs (b)(1) and (2) as paragraphs (b)(2) and
(3), and adding a new paragraph (b)(1);
0
ii. In the newly redesignated paragraph (b)(2) revising the
introductory text, and paragraphs (b)(2)(iii) and (b)(2)(iv);
0
iii. In the newly redesignated paragraph (b)(3)(ii) removing the phrase
``SBIR rights in SBIR data'' and adding ``SBIR/STTR data rights in
SBIR/STTR data'' in its place; and
0
iv. In the newly redesignated paragraph (b)(3)(iii) removing the phrase
``SBIR rights'' and adding ``SBIR/STTR data rights'' in its place;
0
f. Revising paragraph (d);
[[Page 20828]]
0
g. Removing from paragraph (f) the phrase ``(b)(1)(i)'' and adding
``(b)(2)(i)'' in its place; and
0
h. Revising the paragraph (g) heading.
The revisions and additions read as follows:
52.227-20 Rights in Data--Small Business Innovation Research (SBIR)
and Small Business Technology Transfer (STTR) Programs.
* * * * *
Rights in Data--Small Business Innovation Research (SBIR) and Small
Business Technology Transfer (STTR) Programs (DATE)
(a) * * *
Computer database or database means a collection of data recorded
in a form capable of being processed by a computer. The term does not
include computer software.
Computer program means a set of instructions, rules, or routines
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae, and related material that would enable the
software to be reproduced, recreated, or recompiled. Computer software
does not include computer databases or computer software documentation.
* * * * *
Data means all recorded information, regardless of the form, method
of recording, or the media on which it may be recorded. * * *
* * * * *
Government purpose means any activity in which the U.S. Government
or a Federally Funded Research and Development Center is a party,
including cooperative agreements with international or multi-national
defense organizations or sales or transfers by the U.S. Government to
foreign governments or international organizations. Government purposes
include competitive procurement, but do not include the rights to use,
modify, reproduce, release, perform, display, or disclose technical
data or computer software for commercial purposes or authorize others
to do so.
Government purpose rights means the Government's royalty-free
license, after the SBIR/STTR protection period, to use, modify,
reproduce, release, perform, display, or disclose SBIR/STTR data within
the Government without restriction; and release or disclose SBIR/STTR
data outside the Government and authorize persons to whom release or
disclosure has been made to use, modify, reproduce, release, perform,
display, or disclose that data for Government purposes.
* * * * *
Operations, maintenance, installation, or training purposes (OMIT)
data means data that is necessary for operation, maintenance,
installation, or training purposes (but not including detailed
manufacturing or process data).
* * * * *
SBIR/STTR computer software rights means the Government's rights
during the SBIR/STTR protection period (for the Government's rights
after the protection period see the definition of ``government purpose
rights'' in this clause) to--
(1) Use, modify, reproduce, release, perform, display, or disclose
SBIR/STTR data that are computer software within the Government for the
following purposes:
(i) Use in Government computer(s);
(ii) Archival or backup;
(iii) Modify, adapt, or combine with other computer software,
provided that the modified, adapted or combined portion of the software
incorporating any of the delivered, restricted computer software shall
be subject to the same SBIR/STTR computer software rights; or
(iv) Distribute to another agency if, prior to the distribution,
the Contractor is notified of the distribution and the identity of the
recipient, and a copy of the SBIR/STTR computer software rights is
provided to the recipient.
(2) Release or disclose SBIR/STTR data that are computer software
outside the Government to support service contractors or their
subcontractors for purposes described in paragraphs (1)(i) through
(1)(iii) of this definition, including evaluation, repair, overhaul,
and adaptation, combination, or integration with other computer
software, and subject to prohibition against further use and
disclosure.
SBIR/STTR data means all data first produced by a Contractor in the
performance of an SBIR or STTR award, including technical data and
computer software developed or generated in the performance of an SBIR
or STTR award. The term does not include publicly available
information, information otherwise available to the Government, or
information incidental to contract administration, such as financial,
administrative, cost or pricing or management information.
SBIR/STTR data rights means the Government's royalty-free license
rights in properly marked SBIR/STTR data during the SBIR/STTR
protection period as follows: SBIR/STTR technical data rights and SBIR/
STTR computer software rights. Upon expiration of the protection period
for SBIR/STTR data, the Government has government purpose rights in
perpetuity in the SBIR/STTR data, and is relieved of disclosure
prohibitions related to such government purposes and assumes no
liability for unauthorized use of these data by third parties.
SBIR/STTR protection period means the period of time during which
the Government is obligated to protect SBIR/STTR data against
unauthorized use and disclosure in accordance with SBIR/STTR data
rights. The SBIR/STTR protection period begins at award of an SBIR or
STTR contract and ends not less than 20 years from that date, unless
negotiated otherwise after award. (See section 8(b)(4) of the SBIR and
STTR Policy Directive, https://www.sbir.gov).
SBIR/STTR technical data means SBIR/STTR data that is technical
data.
SBIR/STTR technical data rights means the Government's rights to
use SBIR/STTR technical data during the SBIR/STTR protection period
(for the Government's rights after the protection period see the
definition of ``government purpose rights'' in this clause) to--
(1) Use, modify, reproduce, release, perform, display, or disclose
SBIR/STTR technical data within the Government, except for procurement,
manufacturing, or commercial purposes without written permission of the
Contractor; and
(2) Release or disclose outside the Government, subject to
prohibition against further use and disclosure (e.g., nondisclosure
agreement), for the following purposes:
(i) Use (except for manufacturing, procurement or commercial use)
by Government support service contractors in performance of a
Government support services contract for internal Government use, i.e.,
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, such as providing evaluation, diagnosis, or
modification;
(ii) Evaluation; or
(iii) Release to a foreign government, if required to serve the
interests of the U.S. Government, for informational and evaluation
purposes.
* * * * *
Unlimited rights means the rights of the Government to use, modify,
prepare derivative works, reproduce, release,
[[Page 20829]]
perform, display, disclose, or distribute data in whole or in part, in
any manner and for any purpose whatsoever, and to have or permit others
to do so.
(b) Allocation of rights.(1) The SBIR/STTR data rights are to be
interpreted consistent with SBA's SBIR and STTR policy directive.
However, if there is an inconsistency between this clause and the SBIR
and STTR policy directive, this clause governs.
(2) Except as provided in paragraph (c) of this clause regarding
copyright, the Government shall have unlimited rights both during and
after the protection period in--
* * * * *
(iii) Data delivered under this contract (except for restricted
computer software) that constitute manuals or instructional and
training material for installation, operation, or routine maintenance
and repair of items, components, or processes delivered or furnished
for use under this contract, i.e., OMIT data; and
(iv) All other data delivered under this contract unless provided
otherwise for SBIR/STTR data in accordance with paragraph (d) of this
clause or for limited rights data or restricted computer software in
accordance with paragraph (f) of this clause.
* * * * *
(d) Rights to and marking of SBIR/STTR data. (1) The Contractor is
authorized to affix the following ``SBIR/STTR Data Rights Notice'' to
SBIR/STTR data delivered under this contract and the Government will
treat the data, subject to the provisions of paragraphs (e) and (f) of
this clause, in accordance with the notice:
SBIR/STTR Data Rights Notice (DATE)
These SBIR/STTR data are furnished with SBIR/STTR data rights under
Contract number _, date of award _ (and subcontract number _, if
appropriate). For a period of 20 years, starting from the date of
award, the Government will have SBIR/STTR technical data rights or
SBIR/STTR computer software rights in these data as defined in
paragraph (a) of the clause 52.227-20 Rights in Data--Small Business
Innovation Research (SBIR) and Small Business Technology Transfer
(STTR) Programs, included in the above identified contract, and they
shall not be disclosed outside the Government (including disclosure for
procurement purposes) during such period without permission of the
Contractor (unless specifically permitted elsewhere in the contract
pursuant to post-award negotiations), except that, subject to the
foregoing use and disclosure prohibitions, these data may be disclosed
for use by support Contractors. After the SBIR/STTR protection period
ends, the Government has Government purpose rights in this data as
defined in paragraph (a) of 52.227-20. This notice shall be affixed to
any reproductions of these data, in whole or in part.
(End of Notice)
(2) If the Contractor and the contracting officer negotiate a
different SBIR/STTR protection period after award of the contract, the
Contractor shall revise the SBIR/STTR Data Rights Notice to reflect the
negotiated protection period.
(3) The Government's sole obligation with respect to any SBIR/STTR
data shall be as set forth in this paragraph (d).
* * * * *
(g) Subcontracts. * * *
* * * * *
52.227-21 [Amended]
0
17. Amend section 52.227-21 by removing from the introductory text
``27.409'' and adding ``27.410'' in its place.
52.227-22 [Amended]
0
18. Amend section 52.227-22 by removing from the introductory text
``27.409'' and adding ``27.410'' in its place.
52.227-23 [Amended]
0
19. Amend section 52.227-23 by removing from the introductory text
``27.409'' and adding ``27.410'' in its place.
[FR Doc. 2023-06420 Filed 4-6-23; 8:45 am]
BILLING CODE 6820-EP-P
