Defense Federal Acquisition Regulation Supplement: Update of Challenge Period for Validation of Asserted Restrictions on Technical Data and Computer Software (DFARS Case 2022-D016), 31686-31690 [2024-08438]

Download as PDF 31686 Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Proposed Rules (a) * * * Covered vessel means a vessel— (1) Owned, operated, or controlled by the offeror; and (2) Qualified to engage in the carriage of cargo in the coastwise or noncontiguous trade under 46 U.S.C. 12112 and 50501 and 46 U.S.C. chapter 551. Foreign shipyard means a shipyard that is not located in the United States. * * * * * [FR Doc. 2024–08436 Filed 4–24–24; 8:45 am] BILLING CODE 6001–FR–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 252 [Docket DARS–2022–0030] RIN 0750–AL67 Defense Federal Acquisition Regulation Supplement: Update of Challenge Period for Validation of Asserted Restrictions on Technical Data and Computer Software (DFARS Case 2022–D016) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. AGENCY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2012, which addresses the validation of proprietary data restrictions. In addition to the request for written comments, DoD will hold a public meeting to hear the views of interested parties. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before June 24, 2024, to be considered in the formation of a final rule. Public Meeting: A virtual public meeting will be held on May 17, 2024, from 1:00 p.m. to 5:00 p.m. Eastern time. The public meeting will end at the stated time, or when the discussion ends, whichever comes first. Registration: Registration to attend the public meeting must be received no later than close of business on May 9, 2024. Information on how to register for the public meeting is provided under the SUPPLEMENTARY INFORMATION section of this proposed rule. ADDRESSES: Public Meeting: A virtual public meeting will be held using Zoom video conferencing software. lotter on DSK11XQN23PROD with PROPOSALS1 SUMMARY: VerDate Sep<11>2014 16:45 Apr 24, 2024 Jkt 262001 Submission of Comments: Submit comments identified by DFARS Case 2022–D016, using either of the following methods: Æ Federal eRulemaking Portal: https:// www.regulations.gov. Search for DFARS Case 2022–D016. Select ‘‘Comment’’ and follow the instructions to submit a comment. Please include ‘‘DFARS Case 2022–D016’’ on any attached documents. Æ Email: osd.dfars@mail.mil. Include DFARS Case 2022–D016 in the subject line of the message. Comments received generally will be posted without change to https:// www.regulations.gov, including any personal information provided. 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: David Johnson, telephone 202–913– 5764. SUPPLEMENTARY INFORMATION: I. Background DoD is proposing to revise the DFARS to implement section 815(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 (Pub. L. 112–81). Section 815(b) amended 10 U.S.C. 2321 (currently 10 U.S.C. 3782) by increasing the validation period for asserted restrictions from three years to six years. Section 815(b) also amended 10 U.S.C. 2321 to provide an exception to the prescribed time limit for validation of asserted restrictions if the technical data involved are the subject of a fraudulently asserted use or release restriction. DoD published an advance notice of proposed rulemaking (ANPR) in the Federal Register on December 16, 2022, at 87 FR 77055, providing draft DFARS revisions and requesting written public comments. DoD hosted a public meeting to obtain the views of interested parties regarding the ANPR on January 26, 2023. The preamble to the ANPR provided detailed explanations of revisions related to— • The validation period for asserted restrictions; and • The new statutory exception to the prescribed time limit for validation of asserted restrictions. One respondent submitted public comments in response to the ANPR. II. Public Meeting DoD is interested in continuing a dialogue with experts and interested parties in the Government and the PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 private sector regarding amending the DFARS to implement section 815(b) of the NDAA for FY 2012. Registration: Individuals wishing to participate in the virtual meeting must register by May 9, 2024, to facilitate entry to the meeting. Interested parties may register for the meeting by sending the following information via email to osd.dfars@mail.mil and include ‘‘Public Meeting, DFARS Case 2022–D016’’ in the subject line of the message: • Full name. • Valid email address, which will be used for admittance to the meeting. • Valid telephone number, which will serve as a secondary connection method. Registrants must provide the telephone number they plan on using to connect to the virtual meeting. • Company or organization name. • Whether the individual desires to make a presentation. Pre-registered individuals will receive instructions for connecting using the Zoom video conferencing software not more than one week before the meeting is scheduled to commence. Presentations: Presentations will be limited to 5 minutes per company or organization. This limit may be subject to adjustment, depending on the number of entities requesting to present, in order to ensure adequate time for discussion. If you wish to make a presentation, please submit an electronic copy of your presentation via email to osd.dfars@mail.mil no later than the registration date for the meeting. Each presentation should be in PowerPoint to facilitate projection during the public meeting and should include the presenter’s name, title, organization affiliation, telephone number, and email address on the cover page. Correspondence, Comments, and Presentations: Please cite ‘‘Public Meeting, DFARS Case 2022–D016’’ in all correspondence related to the public meeting. There will be no transcription at the meeting. The submitted presentations will be posted to the following website at the conclusion of the public meeting: https:// www.acq.osd.mil/dpap/dars/technical_ data_rights.html. III. Discussion and Analysis DoD reviewed the public comments in response to the ANPR in the development of the proposed rule. No changes are made in this proposed rule text as a result of the public comments. A discussion of the comments is provided, as follows: E:\FR\FM\25APP1.SGM 25APP1 Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Proposed Rules A. Analysis of Public Comments B. Other Changes 1. Virtual Public Meetings The proposed rule includes other changes to align the language in the clauses at DFARS 252.227–7019, Validation of Asserted Restrictions— Computer Software, and DFARS 252.227–7037, Validation of Restrictive Markings on Technical Data. In addition, editorial changes were made, including updates to comport with DFARS content and drafting conventions. For example, the proposed rule includes changes to the clauses to consistently refer to validation of ‘‘asserted restrictions’’ (rather than ‘‘restrictive markings’’), thereby aligning this language with the scope and purpose of the clauses and the underlying statutes (10 U.S.C 3781– 3786). In addition, the proposed rule includes revisions to the clauses to ensure consistent syntax in instances where the clause refers to striking or correcting a restrictive marking. Furthermore, the proposed rule corrects all references to the ‘‘United States Claims Court’’ to read as the ‘‘United States Court of Federal Claims’’, to reflect the correct name of the applicable court. Comment: The respondent thanked DoD for the opportunity to participate in the rulemaking process and provide input. Response: DoD acknowledges the respondent’s comment. 2. Definition of Fraud Comment: The respondent requested clarification with respect to when a use or release restriction would be considered ‘‘fraudulently asserted.’’ In particular, the respondent asked whether there is a knowledge requirement on behalf of the contractor asserting restrictions. Response: The statutory revisions being implemented in DFARS Case 2022–D016 do not establish a specialized definition of ‘‘fraudulently asserted’’ or a knowledge requirement. DoD will rely upon the common meaning of the terminology used in the statute and regulatory implementation, informed by applicable procurement statutes, other applicable statutes, and case precedent. lotter on DSK11XQN23PROD with PROPOSALS1 3. Deferred Ordering and the Challenge Period Comment: The respondent requested clarification regarding applicability to deferred ordering situations. The respondent asked if the period related to final payment resets when a payment is made on a deferred ordering basis. Response: The proposed rule includes the following language related to technical data: ‘‘During the period within 6 years of final payment on a contract or within 6 years of delivery of the technical data to the Government, whichever is later, the Contracting Officer may review and make a written determination to challenge the restriction.’’ It also includes the following language regarding software: ‘‘the Government may exercise this right only within 6 years after the date(s) the software is delivered or otherwise furnished to the Government, or 6 years following final payment under this contract, whichever is later.’’ Invocation of the deferred ordering clause institutes new technical data or software delivery requirements; these deliverables may be delivered under the original contract (in which the clause was incorporated) or another contract. Accordingly, the expiration of the challenge period will depend upon the date the data is furnished or the date of final payment under the contract where the technical data or software is delivered, whichever is later. VerDate Sep<11>2014 16:45 Apr 24, 2024 Jkt 262001 IV. Applicability to Contracts at or Below the Simplified Acquisition Threshold, for Commercial Products (Including Commercially Available Offthe-Shelf Items), and for Commercial Services This proposed rule amends the clauses at DFARS 252.227–7019, Validation of Asserted Restrictions— Computer Software, and DFARS 252.227–7037, Validation of Restrictive Markings on Technical Data. However, this proposed rule does not impose any new requirements on contracts at or below the SAT, for commercial products including COTS items, or for commercial services. The clause will continue to apply to acquisitions at or below the SAT, to acquisitions of commercial products including COTS items, and to acquisitions of commercial services. V. Expected Impact of the Rule The proposed rule includes changes to lengthen the validation period for asserted restrictions from three years to six years. The proposed rule also provides an exception to the prescribed time limit for validation of asserted restrictions if the technical data or computer software involved are the subject of a fraudulently asserted restriction. Therefore, the proposed rule, when finalized, may increase the number of challenges to which contractors must respond. However, PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 31687 DoD cannot quantify the estimated number of the additional challenges at this time. VI. 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, as amended. VII. Regulatory Flexibility Act DoD does not expect this proposed rule, when finalized, to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the statutory requirements only lengthen the challenge period for asserted restrictions. However, an initial regulatory flexibility analysis has been performed and is summarized as follows: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 815(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012, which addresses the time period for validation of proprietary data restrictions. The objective of the rule is to implement section 815(b) of the NDAA for FY 2012 (Pub. L. 112–81), which is the legal basis for the rule. Section 815(b) amended 10 U.S.C. 2321 (currently 10 U.S.C. 3782) by increasing the validation period for asserted restrictions from three years to six years. Section 815(b) also amended 10 U.S.C. 2321 to provide an exception to the prescribed time limit for validation of asserted restrictions if the technical data involved are the subject of a fraudulently asserted use or release restriction. This proposed rule, when finalized, will ensure that the Government has adequate opportunity to challenge discrepancies or inaccuracies in contractor assertions of data and software rights. This proposed rule will apply to small entities that have contracts with DoD requiring delivery of data, including E:\FR\FM\25APP1.SGM 25APP1 31688 Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Proposed Rules technical data and computer software. DoD obtained data for fiscal years 2020 through 2022 from the Procurement Business Intelligence Service for all contracts and modifications that include one or more of the following DFARS clauses: 252.227–7013, Rights in Technical Data—Other Than Commercial Products or Commercial Services; 252.227–7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation; 252.227–7015, Technical Data—Commercial Products and Commercial Services; and 252.227– 7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program. DoD awarded on average 54,255 contract actions per year that included one or more of the listed clauses to 9,550 unique entities, of which 28,657 contract awards (53 percent) were made to 6,033 unique small entities (63 percent). This proposed rule does not impose any new reporting, recordkeeping, or other compliance requirements for small entities. This proposed rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known alternatives that would accomplish the stated objectives of the applicable statute. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2022–D016), in correspondence. lotter on DSK11XQN23PROD with PROPOSALS1 VIII. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this proposed rule. However, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved by the Office of Management and Budget (OMB) under OMB Control Number 0704–0369, entitled ‘‘DFARS Subpart 227.71, Rights in Technical Data; and Subpart 227.72, Rights in Computer Software and Computer Software Documentation, and related provisions and clauses.’’ VerDate Sep<11>2014 16:45 Apr 24, 2024 Jkt 262001 List of Subjects in 48 CFR Part 252 Government procurement. Jennifer D. Johnson, Editor/Publisher, Defense Acquisition Regulations System. Therefore, 48 CFR part 252 is proposed to be amended as follows: PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 1. The authority citation for part 252 continues to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 2. Amend section 252.227–7019— a. By revising the date of the clause; b. By revising paragraph (b); c. In paragraph (d)(2)(i)(B) by revising the second sentence; ■ d. In paragraph (e)(1) by revising the second sentence; ■ e. In paragraph (f)(1)(ii) by removing ‘‘within sixty (60)’’ and adding ‘‘in writing within 60’’ in its place; ■ f. In paragraph (f)(1)(iv) by removing ‘‘three-year’’ and adding ‘‘3-year’’ in its place; ■ g. In paragraph (g)(1)(i) by removing ‘‘ninety (90)’’ and adding ‘‘90’’ in its place; ■ h. In paragraph (g)(1)(ii) by removing ‘‘one’’ and ‘‘ninety (90)’’ and adding ‘‘1’’ and ‘‘90’’ in their places, respectively; ■ i. In paragraph (g)(1)(iii) by removing ‘‘suit an appropriate’’, ‘‘ninety (90)’’ wherever it appears, and ‘‘one’’ and adding ‘‘suit in an appropriate’’, ‘‘90’’, and ‘‘1’’ in their places, respectively; ■ j. In paragraph (g)(2)(i) and (ii) by removing ‘‘ninety (90)’’ and adding ‘‘90’’ in its place; ■ k. In paragraph (g)(2)(iii) removing ‘‘one’’ and ‘‘ninety (90)’’ and adding ‘‘1’’ and ‘‘90’’ in their places, respectively; and ■ l. In paragraph (g)(3) removing ‘‘government’’ wherever it appears and ‘‘non-disclosure’’ and adding ‘‘Government’’ and ‘‘nondisclosure’’ in their places, respectively. The revisions read as follows: ■ ■ ■ ■ 252.227–7019 Validation of Asserted Restrictions-Computer Software. * * * * * Validation Of Asserted Restrictions— Computer Software (DATE) * * * * * (b) Justification. The Contractor shall maintain records sufficient to justify the validity of any asserted restrictions on the Government’s rights to use, modify, reproduce, perform, display, release, or disclose computer software delivered, required to be delivered, or otherwise PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 provided to the Government under this contract and shall be prepared to furnish to the Contracting Officer a written justification for such asserted restrictions in response to a request for information under paragraph (d) of this clause or a challenge under paragraph (f) of this clause. * * * * * (d) * * * (2) * * * (i) * * * (B) * * * If the Contractor fails to correct or strike the unjustified marking and return the corrected software to the Contracting Officer within 60 days following receipt of the software, the Contracting Officer may correct the strike the marking at the Contractor’s expense. * * * * * (e) * * * (1) * * * Except for software that is publicly available, has been furnished to the Government without restrictions, has been otherwise made available without restrictions, or is the subject of a fraudulently asserted use or release restriction, the Government may exercise this right only within 6 years after the date(s) the software is delivered or otherwise furnished to the Government, or 6 years following final payment under this contract, whichever is later. * * * * * ■ 3. Amend section 252.227–7037— ■ a. By revising the section heading, and the heading and date of the clause; ■ b. By revising paragraphs (c), and (d); ■ c. By revising paragraph (e)(1) introductory text; ■ d. In paragraph (e)(1)(i) removing ‘‘services,’’ and adding ‘‘services, with’’ in its place; ■ e. By revising paragraph (e)(1)(iii); ■ f. In paragraph (e)(4) by removing ‘‘restrictive markings’’ and adding ‘‘asserted restrictions’’ in its place; ■ g. By revising paragraph (g)(1); ■ h. In paragraph (g)(2)(i) by removing ‘‘restrictive marking’’ and ‘‘In order to’’ and adding ‘‘asserted restriction’’ and ‘‘To’’ in their places, respectively; ■ i. By revising paragraphs (g)(2)(ii), (iii), and (iv); ■ j. In paragraph (h)(1)(i) by removing ‘‘marking’’ and adding ‘‘marking that is based on the asserted restriction’’ in its place; ■ k. In paragraph (h)(1)(ii) by removing ‘‘restrictive marking’’ wherever it appears and ‘‘marking’’ and adding ‘‘asserted restriction’’ in their places; ■ l. By revising paragraph (i); and ■ m. In paragraph (k) by removing ‘‘restrictive marking’’ and ‘‘subcontractors’’ and adding E:\FR\FM\25APP1.SGM 25APP1 Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Proposed Rules ‘‘restrictions’’ and ‘‘subcontractor’’ in their places, respectively. The revisions read as follows: 252.227–7037 Validation of Asserted Restrictions on Technical Data. * * * * * Validation of Asserted Restrictions on Technical Data (DATE) lotter on DSK11XQN23PROD with PROPOSALS1 * * * * * (c) Justification. The Contractor or subcontractor at any tier is responsible for maintaining records sufficient to justify the validity of its asserted restrictions on the rights of the Government and others to use, duplicate, release, or disclose technical data delivered, required to be delivered, or otherwise provided to the Government under the contract or subcontract. Except as provided in paragraph (b) of this clause, the Contractor or subcontractor shall be prepared to furnish to the Contracting Officer a written justification for such asserted restrictions in response to a challenge under paragraph (e) of this clause. (d) Prechallenge request for information. (1) The Contracting Officer may request the Contractor or subcontractor to furnish a written explanation for any asserted restriction on the right of the United States or others to use, disclose, or release technical data. If, upon review of the explanation submitted, the Contracting Officer cannot determine the basis of the asserted restriction, the Contracting Officer may further request the Contractor or subcontractor to furnish additional information in the records of, or otherwise in the possession of or reasonably available to, the Contractor or subcontractor to justify the validity of any asserted restriction on technical data delivered, to be delivered, or otherwise provided to the Government under the contract or subcontract (e.g., a statement of facts accompanied with supporting documentation). The Contractor or subcontractor shall submit such written data as requested by the Contracting Officer within the time required or such longer period as may be mutually agreed. (2) If the Contracting Officer, after reviewing the written data furnished pursuant to paragraph (d)(1) of this clause, or any other available information pertaining to the validity of an asserted restriction, determines that reasonable grounds exist to question the current validity of the asserted restriction and that continued adherence to the asserted restriction would make impracticable the VerDate Sep<11>2014 16:45 Apr 24, 2024 Jkt 262001 subsequent competitive acquisition of the item or process to which the technical data relates, the Contracting Officer will follow the procedures in paragraph (e) of this clause. (3) If the Contractor or subcontractor fails to respond to the Contracting Officer’s request for information under paragraph (d)(1) of this clause, and the Contracting Officer determines that continued adherence to the asserted restriction would make impracticable the subsequent competitive acquisition of the item or process to which the technical data relates, the Contracting Officer may challenge the validity of the asserted restriction as described in paragraph (e) of this clause. (e) * * * (1) Notwithstanding any provision of this contract concerning inspection and acceptance, if the Contracting Officer determines that a challenge to the asserted restriction is warranted, the Contracting Officer will send a written challenge notice to the Contractor or subcontractor making the asserted restriction. The challenge notice and all related correspondence shall be subject to handling procedures for classified information and controlled unclassified information. Such challenge shall— * * * * * (iii) State that a Contracting Officer’s final decision, issued pursuant to paragraph (g) of this clause, sustaining the validity of a prior asserted restriction identical to the current asserted restriction, within the 3-year period preceding the current challenge, shall serve as justification for the current asserted restriction if the prior validated restriction was asserted by the same Contractor or subcontractor (or any licensee of such Contractor or subcontractor) to which such notice is being provided; and * * * * * (g) * * * (1) If the Contracting Officer determines that the Contractor or subcontractor has justified the validity of the asserted restriction, the Contracting Officer will issue a final decision to the Contractor or subcontractor that sustains the validity of the asserted restriction and that states that the Government will continue to be bound by the asserted restriction. The Contracting Officer will issue this final decision within 60 days after receipt of the Contractor’s or subcontractor’s response to the challenge notice, or within such longer period that the Contracting Officer has notified the Contractor or subcontractor that the Government will require. The Contracting Officer will provide PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 31689 notification of any longer period for issuance of a final decision within 60 days after receipt of the response to the challenge notice. (2) * * * (i) * * * (ii) The Government agrees that it will continue to be bound by the asserted restriction for a period of 90 days from the issuance of the Contracting Officer’s final decision under paragraph (g)(2)(i) of this clause. The Contractor or subcontractor agrees that, if it intends to file suit in the United States Court of Federal Claims, it will provide a notice of intent to file suit to the Contracting Officer within 90 days from the issuance of the Contracting Officer’s final decision under paragraph (g)(2)(i) of this clause. If the Contractor or subcontractor fails to appeal, file suit, or provide a notice of intent to file suit to the Contracting Officer within the 90day period, the Government may cancel or ignore the restrictive markings that are based on the asserted restrictions, and the failure of the Contractor or subcontractor to take the required action constitutes agreement with such Government action. (iii) The Government agrees that it will continue to be bound by the asserted restriction where a notice of intent to file suit in the United States Court of Federal Claims is provided to the Contracting Officer within 90 days from the issuance of the final decision under paragraph (g)(2)(i) of this clause. The Government will no longer be bound, and the Contractor or subcontractor agrees that the Government may strike or ignore the restrictive marking that is based on the asserted restriction, if the Contractor or subcontractor fails to file its suit within 1 year after issuance of the final decision. Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, that urgent or compelling circumstances will not permit waiting for the filing of a suit in the United States Court of Federal Claims, the Contractor or subcontractor agrees that the agency may, following notice to the Contractor or subcontractor, authorize release or disclosure of the technical data. Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor’s or subcontractor’s right to damages against the United States where its asserted restrictions are ultimately upheld or to pursue other relief, if any, as may be provided by law. (iv) The Government agrees that it will be bound by the asserted restrictions where an appeal or suit is filed pursuant to the Contract Disputes E:\FR\FM\25APP1.SGM 25APP1 31690 Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Proposed Rules statute until final disposition by an agency Board of Contract Appeals or the United States Court of Federal Claims. Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, following notice to the Contractor that urgent or compelling circumstances will not permit awaiting the decision by such Board of Contract Appeals or the United States Court of Federal Claims, the Contractor or subcontractor agrees that the agency may authorize release or disclosure of the technical data. Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor’s or subcontractor’s right to damages against the United States where its asserted restrictions are ultimately upheld or to pursue other relief, if any, as may be provided by law. * * * * * (i) Duration of right to challenge. (1) The Government may review the validity of any restriction on technical data, delivered or to be delivered under a contract, asserted by the Contractor or subcontractor. During the period within 6 years of final payment on a contract or within 6 years of delivery of the technical data to the Government, whichever is later, the Contracting Officer may review and make a written determination to challenge the restriction. The Government may, however, challenge a restriction on the release, disclosure, or use of technical data at any time if such technical data— (i) Are publicly available; (ii) Have been furnished to the United States without restriction; (iii) Have been otherwise made available without restriction; or (iv) Are the subject of a fraudulently asserted use or release restriction. (2) Only the Contracting Officer’s final decision resolving a formal challenge by sustaining the validity of a restrictive marking constitutes ‘‘validation’’ as addressed in 10 U.S.C. 3785(c). * * * * * [FR Doc. 2024–08438 Filed 4–24–24; 8:45 am] lotter on DSK11XQN23PROD with PROPOSALS1 BILLING CODE 6001–FR–P VerDate Sep<11>2014 16:45 Apr 24, 2024 Jkt 262001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 260 [Docket No. 240412–0106] RIN 0648–BH37 Inspection and Certification of Establishments, Fishery Products, and Other Marine Ingredients National Marine Fisheries Service (NMFS or Agency), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: The NMFS Office of International Affairs, Trade, and Commerce proposes to revise its current implementing regulations to improve the uniformity and reliability of seafood inspection services by adopting recognized best practices for inspection. NMFS has not significantly revised or updated the existing regulations since first issuing them in 1971, though it has modified many operating procedures since implementation of the current regulations. NMFS anticipates that these revisions will benefit the seafood industry by streamlining seafood inspection services and providing improved, more accurate inspection results, as described below. DATES: Written comments must be received by May 28, 2024. ADDRESSES: Written comments on this action, identified by NOAA–NMFS– 2024–0022, may be submitted by either of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov/document/ NOAA-NMFS-240412-0106, click the ‘‘Comment’’ icon, complete the required fields, and enter or attach your comments. • Mail: Steven Wilson, Chief, Seafood Inspection Program, Office of International Affairs, Trade, and Commerce, 1315 East-West Highway, Silver Spring, MD 20910. All comments received are a part of the public record and will generally be posted to https:// www.regulations.gov without change. All personal identifying information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. SUMMARY: PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 NMFS will accept anonymous comments. Enter N/A in the required fields if you wish to remain anonymous. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (PDF) formats only. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the NMFS Office of International Affairs, Trade, and Commerce and by email to: OIRA_ Submission@omb.eop.gov or fax to (202) 395–7285. FOR FURTHER INFORMATION CONTACT: Steven Wilson, Chief, Seafood Inspection Program, by email at Steven.Wilson@noaa.gov or by phone at 301–427–8312. SUPPLEMENTARY INFORMATION: Background Under the authority of the Agricultural Marketing Act (AMA) of 1946 (7 U.S.C. 1621 et seq.), and in accordance with the Reorganization Plan Number 4 of 1970 (84 Stat. 2090), NOAA administers a voluntary Seafood Inspection Program (SIP or Program) which offers inspection and grading services for seafood and other marine products, as well as audit and consultative services to domestic and international processors, importers, and international competent food safety authorities. SIP also authorizes the use of certain marks and shields to processors meeting specific safety, quality, and other program requirements. The existing regulations codified at 50 CFR part 260 have not been significantly revised or updated since NMFS first issued them in 1971, 36 FR 21037 (November 3, 1971), and currently do not reflect the changes in industry practices or the expanding role of SIP since that time. On October 15, 2019, NMFS issued an advance notice of proposed rulemaking (ANPR) requesting input from stakeholders and interested parties on focused areas of the Seafood Inspection Program regulations. Based on the eight public comments received and NMFS’ overall assessment of the current program, NMFS proposes these comprehensive updates to the existing regulations. NMFS looks forward to receiving comments on the updates and modernizations proposed here. The revisions proposed herein incorporate the significant changes and updates that SIP has already made and those that it still needs to implement to simplify its administrative, inspection, and certification procedures. These changes and updates will lead to E:\FR\FM\25APP1.SGM 25APP1

Agencies

[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Proposed Rules]
[Pages 31686-31690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08438]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

[Docket DARS-2022-0030]
RIN 0750-AL67


Defense Federal Acquisition Regulation Supplement: Update of 
Challenge Period for Validation of Asserted Restrictions on Technical 
Data and Computer Software (DFARS Case 2022-D016)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2012, which addresses the 
validation of proprietary data restrictions. In addition to the request 
for written comments, DoD will hold a public meeting to hear the views 
of interested parties.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before June 24, 2024, to be considered in 
the formation of a final rule.
    Public Meeting: A virtual public meeting will be held on May 17, 
2024, from 1:00 p.m. to 5:00 p.m. Eastern time. The public meeting will 
end at the stated time, or when the discussion ends, whichever comes 
first.
    Registration: Registration to attend the public meeting must be 
received no later than close of business on May 9, 2024. Information on 
how to register for the public meeting is provided under the 
SUPPLEMENTARY INFORMATION section of this proposed rule.

ADDRESSES: Public Meeting: A virtual public meeting will be held using 
Zoom video conferencing software.
    Submission of Comments: Submit comments identified by DFARS Case 
2022-D016, using either of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for DFARS Case 2022-D016. Select ``Comment'' and follow the 
instructions to submit a comment. Please include ``DFARS Case 2022-
D016'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2022-D016 in 
the subject line of the message.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. 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: David Johnson, telephone 202-913-5764.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to revise the DFARS to implement section 815(b) of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 
(Pub. L. 112-81). Section 815(b) amended 10 U.S.C. 2321 (currently 10 
U.S.C. 3782) by increasing the validation period for asserted 
restrictions from three years to six years. Section 815(b) also amended 
10 U.S.C. 2321 to provide an exception to the prescribed time limit for 
validation of asserted restrictions if the technical data involved are 
the subject of a fraudulently asserted use or release restriction.
    DoD published an advance notice of proposed rulemaking (ANPR) in 
the Federal Register on December 16, 2022, at 87 FR 77055, providing 
draft DFARS revisions and requesting written public comments. DoD 
hosted a public meeting to obtain the views of interested parties 
regarding the ANPR on January 26, 2023.
    The preamble to the ANPR provided detailed explanations of 
revisions related to--
     The validation period for asserted restrictions; and
     The new statutory exception to the prescribed time limit 
for validation of asserted restrictions.
    One respondent submitted public comments in response to the ANPR.

II. Public Meeting

    DoD is interested in continuing a dialogue with experts and 
interested parties in the Government and the private sector regarding 
amending the DFARS to implement section 815(b) of the NDAA for FY 2012.
    Registration: Individuals wishing to participate in the virtual 
meeting must register by May 9, 2024, to facilitate entry to the 
meeting. Interested parties may register for the meeting by sending the 
following information via email to [email protected] and include 
``Public Meeting, DFARS Case 2022-D016'' in the subject line of the 
message:
     Full name.
     Valid email address, which will be used for admittance to 
the meeting.
     Valid telephone number, which will serve as a secondary 
connection method. Registrants must provide the telephone number they 
plan on using to connect to the virtual meeting.
     Company or organization name.
     Whether the individual desires to make a presentation.
    Pre-registered individuals will receive instructions for connecting 
using the Zoom video conferencing software not more than one week 
before the meeting is scheduled to commence.
    Presentations: Presentations will be limited to 5 minutes per 
company or organization. This limit may be subject to adjustment, 
depending on the number of entities requesting to present, in order to 
ensure adequate time for discussion. If you wish to make a 
presentation, please submit an electronic copy of your presentation via 
email to [email protected] no later than the registration date for the 
meeting. Each presentation should be in PowerPoint to facilitate 
projection during the public meeting and should include the presenter's 
name, title, organization affiliation, telephone number, and email 
address on the cover page.
    Correspondence, Comments, and Presentations: Please cite ``Public 
Meeting, DFARS Case 2022-D016'' in all correspondence related to the 
public meeting. There will be no transcription at the meeting. The 
submitted presentations will be posted to the following website at the 
conclusion of the public meeting: https://www.acq.osd.mil/dpap/dars/technical_data_rights.html.

III. Discussion and Analysis

    DoD reviewed the public comments in response to the ANPR in the 
development of the proposed rule. No changes are made in this proposed 
rule text as a result of the public comments. A discussion of the 
comments is provided, as follows:

[[Page 31687]]

A. Analysis of Public Comments

1. Virtual Public Meetings
    Comment: The respondent thanked DoD for the opportunity to 
participate in the rulemaking process and provide input.
    Response: DoD acknowledges the respondent's comment.
2. Definition of Fraud
    Comment: The respondent requested clarification with respect to 
when a use or release restriction would be considered ``fraudulently 
asserted.'' In particular, the respondent asked whether there is a 
knowledge requirement on behalf of the contractor asserting 
restrictions.
    Response: The statutory revisions being implemented in DFARS Case 
2022-D016 do not establish a specialized definition of ``fraudulently 
asserted'' or a knowledge requirement. DoD will rely upon the common 
meaning of the terminology used in the statute and regulatory 
implementation, informed by applicable procurement statutes, other 
applicable statutes, and case precedent.
3. Deferred Ordering and the Challenge Period
    Comment: The respondent requested clarification regarding 
applicability to deferred ordering situations. The respondent asked if 
the period related to final payment resets when a payment is made on a 
deferred ordering basis.
    Response: The proposed rule includes the following language related 
to technical data: ``During the period within 6 years of final payment 
on a contract or within 6 years of delivery of the technical data to 
the Government, whichever is later, the Contracting Officer may review 
and make a written determination to challenge the restriction.'' It 
also includes the following language regarding software: ``the 
Government may exercise this right only within 6 years after the 
date(s) the software is delivered or otherwise furnished to the 
Government, or 6 years following final payment under this contract, 
whichever is later.''
    Invocation of the deferred ordering clause institutes new technical 
data or software delivery requirements; these deliverables may be 
delivered under the original contract (in which the clause was 
incorporated) or another contract. Accordingly, the expiration of the 
challenge period will depend upon the date the data is furnished or the 
date of final payment under the contract where the technical data or 
software is delivered, whichever is later.

B. Other Changes

    The proposed rule includes other changes to align the language in 
the clauses at DFARS 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, and DFARS 252.227-7037, Validation of 
Restrictive Markings on Technical Data. In addition, editorial changes 
were made, including updates to comport with DFARS content and drafting 
conventions. For example, the proposed rule includes changes to the 
clauses to consistently refer to validation of ``asserted 
restrictions'' (rather than ``restrictive markings''), thereby aligning 
this language with the scope and purpose of the clauses and the 
underlying statutes (10 U.S.C 3781-3786). In addition, the proposed 
rule includes revisions to the clauses to ensure consistent syntax in 
instances where the clause refers to striking or correcting a 
restrictive marking. Furthermore, the proposed rule corrects all 
references to the ``United States Claims Court'' to read as the 
``United States Court of Federal Claims'', to reflect the correct name 
of the applicable court.

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold, for Commercial Products (Including Commercially Available 
Off-the-Shelf Items), and for Commercial Services

    This proposed rule amends the clauses at DFARS 252.227-7019, 
Validation of Asserted Restrictions--Computer Software, and DFARS 
252.227-7037, Validation of Restrictive Markings on Technical Data. 
However, this proposed rule does not impose any new requirements on 
contracts at or below the SAT, for commercial products including COTS 
items, or for commercial services. The clause will continue to apply to 
acquisitions at or below the SAT, to acquisitions of commercial 
products including COTS items, and to acquisitions of commercial 
services.

V. Expected Impact of the Rule

    The proposed rule includes changes to lengthen the validation 
period for asserted restrictions from three years to six years. The 
proposed rule also provides an exception to the prescribed time limit 
for validation of asserted restrictions if the technical data or 
computer software involved are the subject of a fraudulently asserted 
restriction. Therefore, the proposed rule, when finalized, may increase 
the number of challenges to which contractors must respond. However, 
DoD cannot quantify the estimated number of the additional challenges 
at this time.

VI. 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, as amended.

VII. Regulatory Flexibility Act

    DoD does not expect this proposed rule, when finalized, to have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq., because the statutory requirements only lengthen the challenge 
period for asserted restrictions. However, an initial regulatory 
flexibility analysis has been performed and is summarized as follows:
    DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement section 815(b) of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012, 
which addresses the time period for validation of proprietary data 
restrictions.
    The objective of the rule is to implement section 815(b) of the 
NDAA for FY 2012 (Pub. L. 112-81), which is the legal basis for the 
rule. Section 815(b) amended 10 U.S.C. 2321 (currently 10 U.S.C. 3782) 
by increasing the validation period for asserted restrictions from 
three years to six years. Section 815(b) also amended 10 U.S.C. 2321 to 
provide an exception to the prescribed time limit for validation of 
asserted restrictions if the technical data involved are the subject of 
a fraudulently asserted use or release restriction. This proposed rule, 
when finalized, will ensure that the Government has adequate 
opportunity to challenge discrepancies or inaccuracies in contractor 
assertions of data and software rights.
    This proposed rule will apply to small entities that have contracts 
with DoD requiring delivery of data, including

[[Page 31688]]

technical data and computer software. DoD obtained data for fiscal 
years 2020 through 2022 from the Procurement Business Intelligence 
Service for all contracts and modifications that include one or more of 
the following DFARS clauses: 252.227-7013, Rights in Technical Data--
Other Than Commercial Products or Commercial Services; 252.227-7014, 
Rights in Other Than Commercial Computer Software and Other Than 
Commercial Computer Software Documentation; 252.227-7015, Technical 
Data--Commercial Products and Commercial Services; and 252.227-7018, 
Rights in Other Than Commercial Technical Data and Computer Software--
Small Business Innovation Research (SBIR) Program. DoD awarded on 
average 54,255 contract actions per year that included one or more of 
the listed clauses to 9,550 unique entities, of which 28,657 contract 
awards (53 percent) were made to 6,033 unique small entities (63 
percent).
    This proposed rule does not impose any new reporting, 
recordkeeping, or other compliance requirements for small entities.
    This proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    There are no known alternatives that would accomplish the stated 
objectives of the applicable statute.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this proposed rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2022-
D016), in correspondence.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this 
proposed rule. However, these changes to the DFARS do not impose 
additional information collection requirements to the paperwork burden 
previously approved by the Office of Management and Budget (OMB) under 
OMB Control Number 0704-0369, entitled ``DFARS Subpart 227.71, Rights 
in Technical Data; and Subpart 227.72, Rights in Computer Software and 
Computer Software Documentation, and related provisions and clauses.''

List of Subjects in 48 CFR Part 252

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 252 is proposed to be amended as follows:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
1. The authority citation for part 252 continues to read as follows:

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

0
2. Amend section 252.227-7019--
0
a. By revising the date of the clause;
0
b. By revising paragraph (b);
0
c. In paragraph (d)(2)(i)(B) by revising the second sentence;
0
d. In paragraph (e)(1) by revising the second sentence;
0
e. In paragraph (f)(1)(ii) by removing ``within sixty (60)'' and adding 
``in writing within 60'' in its place;
0
f. In paragraph (f)(1)(iv) by removing ``three-year'' and adding ``3-
year'' in its place;
0
g. In paragraph (g)(1)(i) by removing ``ninety (90)'' and adding ``90'' 
in its place;
0
h. In paragraph (g)(1)(ii) by removing ``one'' and ``ninety (90)'' and 
adding ``1'' and ``90'' in their places, respectively;
0
i. In paragraph (g)(1)(iii) by removing ``suit an appropriate'', 
``ninety (90)'' wherever it appears, and ``one'' and adding ``suit in 
an appropriate'', ``90'', and ``1'' in their places, respectively;
0
j. In paragraph (g)(2)(i) and (ii) by removing ``ninety (90)'' and 
adding ``90'' in its place;
0
k. In paragraph (g)(2)(iii) removing ``one'' and ``ninety (90)'' and 
adding ``1'' and ``90'' in their places, respectively; and
0
l. In paragraph (g)(3) removing ``government'' wherever it appears and 
``non-disclosure'' and adding ``Government'' and ``nondisclosure'' in 
their places, respectively.
    The revisions read as follows:


252.227-7019  Validation of Asserted Restrictions-Computer Software.

* * * * *

Validation Of Asserted Restrictions--Computer Software (DATE)

* * * * *
    (b) Justification. The Contractor shall maintain records sufficient 
to justify the validity of any asserted restrictions on the 
Government's rights to use, modify, reproduce, perform, display, 
release, or disclose computer software delivered, required to be 
delivered, or otherwise provided to the Government under this contract 
and shall be prepared to furnish to the Contracting Officer a written 
justification for such asserted restrictions in response to a request 
for information under paragraph (d) of this clause or a challenge under 
paragraph (f) of this clause.
* * * * *
    (d) * * *
    (2) * * *
    (i) * * *
    (B) * * * If the Contractor fails to correct or strike the 
unjustified marking and return the corrected software to the 
Contracting Officer within 60 days following receipt of the software, 
the Contracting Officer may correct the strike the marking at the 
Contractor's expense.
* * * * *
    (e) * * *
    (1) * * * Except for software that is publicly available, has been 
furnished to the Government without restrictions, has been otherwise 
made available without restrictions, or is the subject of a 
fraudulently asserted use or release restriction, the Government may 
exercise this right only within 6 years after the date(s) the software 
is delivered or otherwise furnished to the Government, or 6 years 
following final payment under this contract, whichever is later.
* * * * *
0
3. Amend section 252.227-7037--
0
a. By revising the section heading, and the heading and date of the 
clause;
0
b. By revising paragraphs (c), and (d);
0
c. By revising paragraph (e)(1) introductory text;
0
d. In paragraph (e)(1)(i) removing ``services,'' and adding ``services, 
with'' in its place;
0
e. By revising paragraph (e)(1)(iii);
0
f. In paragraph (e)(4) by removing ``restrictive markings'' and adding 
``asserted restrictions'' in its place;
0
g. By revising paragraph (g)(1);
0
h. In paragraph (g)(2)(i) by removing ``restrictive marking'' and ``In 
order to'' and adding ``asserted restriction'' and ``To'' in their 
places, respectively;
0
i. By revising paragraphs (g)(2)(ii), (iii), and (iv);
0
j. In paragraph (h)(1)(i) by removing ``marking'' and adding ``marking 
that is based on the asserted restriction'' in its place;
0
k. In paragraph (h)(1)(ii) by removing ``restrictive marking'' wherever 
it appears and ``marking'' and adding ``asserted restriction'' in their 
places;
0
l. By revising paragraph (i); and
0
m. In paragraph (k) by removing ``restrictive marking'' and 
``subcontractors'' and adding

[[Page 31689]]

``restrictions'' and ``subcontractor'' in their places, respectively.
    The revisions read as follows:


252.227-7037  Validation of Asserted Restrictions on Technical Data.

* * * * *

Validation of Asserted Restrictions on Technical Data (DATE)

* * * * *
    (c) Justification. The Contractor or subcontractor at any tier is 
responsible for maintaining records sufficient to justify the validity 
of its asserted restrictions on the rights of the Government and others 
to use, duplicate, release, or disclose technical data delivered, 
required to be delivered, or otherwise provided to the Government under 
the contract or subcontract. Except as provided in paragraph (b) of 
this clause, the Contractor or subcontractor shall be prepared to 
furnish to the Contracting Officer a written justification for such 
asserted restrictions in response to a challenge under paragraph (e) of 
this clause.
    (d) Prechallenge request for information.
    (1) The Contracting Officer may request the Contractor or 
subcontractor to furnish a written explanation for any asserted 
restriction on the right of the United States or others to use, 
disclose, or release technical data. If, upon review of the explanation 
submitted, the Contracting Officer cannot determine the basis of the 
asserted restriction, the Contracting Officer may further request the 
Contractor or subcontractor to furnish additional information in the 
records of, or otherwise in the possession of or reasonably available 
to, the Contractor or subcontractor to justify the validity of any 
asserted restriction on technical data delivered, to be delivered, or 
otherwise provided to the Government under the contract or subcontract 
(e.g., a statement of facts accompanied with supporting documentation). 
The Contractor or subcontractor shall submit such written data as 
requested by the Contracting Officer within the time required or such 
longer period as may be mutually agreed.
    (2) If the Contracting Officer, after reviewing the written data 
furnished pursuant to paragraph (d)(1) of this clause, or any other 
available information pertaining to the validity of an asserted 
restriction, determines that reasonable grounds exist to question the 
current validity of the asserted restriction and that continued 
adherence to the asserted restriction would make impracticable the 
subsequent competitive acquisition of the item or process to which the 
technical data relates, the Contracting Officer will follow the 
procedures in paragraph (e) of this clause.
    (3) If the Contractor or subcontractor fails to respond to the 
Contracting Officer's request for information under paragraph (d)(1) of 
this clause, and the Contracting Officer determines that continued 
adherence to the asserted restriction would make impracticable the 
subsequent competitive acquisition of the item or process to which the 
technical data relates, the Contracting Officer may challenge the 
validity of the asserted restriction as described in paragraph (e) of 
this clause.
    (e) * * *
    (1) Notwithstanding any provision of this contract concerning 
inspection and acceptance, if the Contracting Officer determines that a 
challenge to the asserted restriction is warranted, the Contracting 
Officer will send a written challenge notice to the Contractor or 
subcontractor making the asserted restriction. The challenge notice and 
all related correspondence shall be subject to handling procedures for 
classified information and controlled unclassified information. Such 
challenge shall--
* * * * *
    (iii) State that a Contracting Officer's final decision, issued 
pursuant to paragraph (g) of this clause, sustaining the validity of a 
prior asserted restriction identical to the current asserted 
restriction, within the 3-year period preceding the current challenge, 
shall serve as justification for the current asserted restriction if 
the prior validated restriction was asserted by the same Contractor or 
subcontractor (or any licensee of such Contractor or subcontractor) to 
which such notice is being provided; and
* * * * *
    (g) * * *
    (1) If the Contracting Officer determines that the Contractor or 
subcontractor has justified the validity of the asserted restriction, 
the Contracting Officer will issue a final decision to the Contractor 
or subcontractor that sustains the validity of the asserted restriction 
and that states that the Government will continue to be bound by the 
asserted restriction. The Contracting Officer will issue this final 
decision within 60 days after receipt of the Contractor's or 
subcontractor's response to the challenge notice, or within such longer 
period that the Contracting Officer has notified the Contractor or 
subcontractor that the Government will require. The Contracting Officer 
will provide notification of any longer period for issuance of a final 
decision within 60 days after receipt of the response to the challenge 
notice.
    (2) * * *
    (i) * * *
    (ii) The Government agrees that it will continue to be bound by the 
asserted restriction for a period of 90 days from the issuance of the 
Contracting Officer's final decision under paragraph (g)(2)(i) of this 
clause. The Contractor or subcontractor agrees that, if it intends to 
file suit in the United States Court of Federal Claims, it will provide 
a notice of intent to file suit to the Contracting Officer within 90 
days from the issuance of the Contracting Officer's final decision 
under paragraph (g)(2)(i) of this clause. If the Contractor or 
subcontractor fails to appeal, file suit, or provide a notice of intent 
to file suit to the Contracting Officer within the 90-day period, the 
Government may cancel or ignore the restrictive markings that are based 
on the asserted restrictions, and the failure of the Contractor or 
subcontractor to take the required action constitutes agreement with 
such Government action.
    (iii) The Government agrees that it will continue to be bound by 
the asserted restriction where a notice of intent to file suit in the 
United States Court of Federal Claims is provided to the Contracting 
Officer within 90 days from the issuance of the final decision under 
paragraph (g)(2)(i) of this clause. The Government will no longer be 
bound, and the Contractor or subcontractor agrees that the Government 
may strike or ignore the restrictive marking that is based on the 
asserted restriction, if the Contractor or subcontractor fails to file 
its suit within 1 year after issuance of the final decision. 
Notwithstanding the foregoing, where the head of an agency determines, 
on a nondelegable basis, that urgent or compelling circumstances will 
not permit waiting for the filing of a suit in the United States Court 
of Federal Claims, the Contractor or subcontractor agrees that the 
agency may, following notice to the Contractor or subcontractor, 
authorize release or disclosure of the technical data. Such agency 
determination may be made at any time after issuance of the final 
decision and will not affect the Contractor's or subcontractor's right 
to damages against the United States where its asserted restrictions 
are ultimately upheld or to pursue other relief, if any, as may be 
provided by law.
    (iv) The Government agrees that it will be bound by the asserted 
restrictions where an appeal or suit is filed pursuant to the Contract 
Disputes

[[Page 31690]]

statute until final disposition by an agency Board of Contract Appeals 
or the United States Court of Federal Claims. Notwithstanding the 
foregoing, where the head of an agency determines, on a nondelegable 
basis, following notice to the Contractor that urgent or compelling 
circumstances will not permit awaiting the decision by such Board of 
Contract Appeals or the United States Court of Federal Claims, the 
Contractor or subcontractor agrees that the agency may authorize 
release or disclosure of the technical data. Such agency determination 
may be made at any time after issuance of the final decision and will 
not affect the Contractor's or subcontractor's right to damages against 
the United States where its asserted restrictions are ultimately upheld 
or to pursue other relief, if any, as may be provided by law.
* * * * *
    (i) Duration of right to challenge.
    (1) The Government may review the validity of any restriction on 
technical data, delivered or to be delivered under a contract, asserted 
by the Contractor or subcontractor. During the period within 6 years of 
final payment on a contract or within 6 years of delivery of the 
technical data to the Government, whichever is later, the Contracting 
Officer may review and make a written determination to challenge the 
restriction. The Government may, however, challenge a restriction on 
the release, disclosure, or use of technical data at any time if such 
technical data--
    (i) Are publicly available;
    (ii) Have been furnished to the United States without restriction;
    (iii) Have been otherwise made available without restriction; or
    (iv) Are the subject of a fraudulently asserted use or release 
restriction.
    (2) Only the Contracting Officer's final decision resolving a 
formal challenge by sustaining the validity of a restrictive marking 
constitutes ``validation'' as addressed in 10 U.S.C. 3785(c).
* * * * *
[FR Doc. 2024-08438 Filed 4-24-24; 8:45 am]
BILLING CODE 6001-FR-P
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