Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11363 

upgraded components and would not 

contemplate maintaining and storing 

any special tooling for components that 

are no longer a part of the major system 

end item. 

F. Repricing Ongoing Programs 

Comment: A respondent stated its 

belief that ‘‘the final rule must allow 

contractors to reprice ongoing programs 

should the plans for preserving tooling 

for major defense acquisition programs 

add additional requirements on to 

existing programs.’’ 

Response: The comment is outside the 

scope of this case. Further, whenever 

new or additional requirements are 

added to a contract, it can only be 

accomplished via a bilateral 

modification and with equitable 

consideration. This contract rule is not 

unique to MDAPs or toolingpreservation requirements. Therefore, 

this case need not address such a 

circumstance specifically with regard to 

the preservation of tooling. To do so 

would add inappropriate redundancy to 

the DFARS. 

III. Executive Order 12866 

This is not a significant regulatory 

action and, therefore, was not subject to 

review by the Office of Management and 

Budget under Executive Order 12866, 

dated September 30, 1993. This rule is 

not a major rule under 5 U.S.C. 804. 

IV. Regulatory Flexibility Act 

DoD certifies that this final rule will 

not 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 rule addresses internal DoD 

procedural matters. Specifically, this 

implementation of section 815 of the 

National Defense Authorization Act for 

Fiscal Year 2009, ‘‘Preservation of 

Tooling for Major Defense Acquisition 

Programs,’’ requires that— 

1. The DoD Milestone Decision 

Authority (MDA) approve a plan for the 

preservation and storage of unique 

tooling associated with the production 

of hardware for a major defense 

acquisition program through the end of 

the service life of the end item; and 

2. The MDA periodically review the 

plan to ensure that it remains adequate 

and in the best interest of DoD. 

V. Paperwork Reduction Act 

The rule does not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under the Paperwork 

Reduction Act (44 U.S.C. chapter 35). 

List of Subjects in 48 CFR Part 207 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 207 is 

amended as follows: 

PART 207—ACQUISITION PLANNING 

■ 1. The authority citation for 48 CFR 

part 207 continues to read as follows: 

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

chapter 1. 

■ 2. Add paragraph (S–73) to section 

207.106 to read as follows: 

207.106 Additional requirements for major 

systems. 

* * * * * 

(S–73) In accordance with section 815 

of the National Defense Authorization 

Act for Fiscal Year 2009 (Pub. L. 110– 

417) and DoD policy requirements, 

acquisition plans for major weapons 

systems shall include a plan for the 

preservation and storage of special 

tooling associated with the production 

of hardware for major defense 

acquisition programs through the end of 

the service life of the related weapons 

system. The plan shall include the 

identification of any contract clauses, 

facilities, and funding required for the 

preservation and storage of such tooling. 

The Undersecretary of Defense for 

Acquisition, Technology, and Logistics 

(USD (AT&L)) may waive this 

requirement if USD (AT&L) determines 

that it is in the best interest of DoD. 

[FR Doc. 2011–4529 Filed 3–1–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209, 227, 252 

Defense Federal Acquisition 

Regulation Supplement; Government 

Support Contractor Access to 

Technical Data (DFARS Case 2009– 

D031) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 821 of 

the National Defense Authorization Act 

for Fiscal Year 2010. Section 821 

provides authority for certain types of 

Government support contractors to have 

access to proprietary technical data 

belonging to prime contractors and 

other third parties, provided that the 

technical data owner may require the 

support contractor to execute a nondisclosure agreement having certain 

restrictions and remedies. 

Additionally, this interim rule 

amends the DFARS to provide needed 

editorial changes. 

DATES: Effective date: March 2, 2011. 

Comment date: Comments on the 

interim rule should be submitted to the 

address shown below on or before May 

2, 2011, to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D031, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting 

‘‘DFARS Case 2009–D031’’ under the 

heading ‘‘Enter keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘DFARS Case 2009–D031.’’ Follow 

the instructions provided at the ‘‘Submit 

a Comment’’ screen. Please include your 

name, company name (if any), and 

‘‘DFARS Case 2009–D031’’ on your 

attached document. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D031 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy G. 

Williams, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check http://www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, 703–602–0328. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 821 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84) was enacted October 

28, 2009. Section 821 provides authority 

for certain types of Government support 

contractors to have access to proprietary 

technical data belonging to prime 

contractors and other third parties, 

provided that the technical data owner 

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11364 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

may require the support contractor to 

execute a non-disclosure agreement 

having certain restrictions and 

remedies. 

The DFARS scheme for acquiring 

rights in technical data is based on 10 

U.S.C. 2320 and 2321. Section 2320 

establishes the basic allocation of rights 

in technical data, and provides, among 

other things, that a private party is 

entitled to restrict the Government’s 

rights to release or disclose privatelydeveloped technical data outside the 

Government. This restriction is 

implemented in the DFARS as the 

‘‘limited rights’’ license, which 

essentially limits the Government’s use 

of such data only for in-house use, 

which does not include release to 

Government support contractors. 

Historically, the statutorily based 

scheme has included only two 

categorical exceptions to the basic nondisclosure requirements for such 

privately-developed data: 

• A ‘‘type’’ exception, in which the 

Government is granted unlimited rights 

in certain types of ‘‘top-level’’ data that 

are considered not to provide a 

competitive advantage by being treated 

as proprietary (e.g., form, fit, and 

function data; data necessary for 

operation, maintenance, installation, or 

training; publicly available data) 

(2320(a)(2)(C)); and 

• A ‘‘special needs’’ exception for 

certain important Government activities 

that are considered critical to 

Government operations (e.g., emergency 

repair and overhaul; evaluation by a 

foreign government), and are allowed 

only when the recipient of the data is 

made subject to strict non-disclosure 

restrictions on any further release of the 

data. (2320(a)(2)(D)) 

Section 821 amends 10 U.S.C. 2320 to 

add a new third statutory exception to 

the prohibition on release of privately 

developed data outside the Government 

that provides—‘‘notwithstanding any 

limitation upon the license rights 

conveyed under subsection (a), allowing 

a covered Government support 

contractor access to, and use of, any 

technical data delivered under a 

contract for the sole purpose of 

furnishing independent and impartial 

advice or technical assistance directly to 

the Government in support of the 

Government’s management and 

oversight of the program or effort to 

which such technical data relates.’’ 

The statute also provides a definition 

of ‘‘covered Government support 

contractor’’ to mean— 

‘‘A contractor under a contract, the primary 

purpose of which is to furnish independent 

and impartial advice or technical assistance 

directly to the Government in support of the 

Government’s management and oversight of 

a program or effort (rather than to directly 

furnish an end item or service to accomplish 

a program or effort), provided that the 

contractor— 

(1) Is not affiliated with the prime 

contractor or a first-tier subcontractor on the 

program or effort, or with any direct 

competitor of such prime contractor or any 

such first-tier subcontractor in furnishing end 

items or services of the type developed or 

produced on the program or effort; and 

(2) Executes a contract with the 

Government agreeing to and 

acknowledging— 

(A) That proprietary or nonpublic technical 

data furnished will be accessed and used 

only for the purposes stated in that contract; 

(B) That the covered Government support 

contractor will enter into a non-disclosure 

agreement with the contractor to whom the 

rights to the technical data belong; 

(C) That the covered Government support 

contractor will take all reasonable steps to 

protect the proprietary and nonpublic nature 

of the technical data furnished to the covered 

Government support contractor during the 

program or effort for the period of time in 

which the Government is restricted from 

disclosing the technical data outside of the 

Government; 

(D) That a breach of that contract by the 

covered Government support contractor with 

regard to a third party’s ownership or rights 

in such technical data may subject the 

covered Government support contractor— 

(i) To criminal, civil, administrative, and 

contractual actions in law and equity for 

penalties, damages, and other appropriate 

remedies by the United States; and 

(ii) To civil actions for damages and other 

appropriate remedies by the contractor or 

subcontractor whose technical data is 

affected by the breach; and 

(E) That such technical data provided to 

the covered Government support contractor 

under the authority of this section shall not 

be used by the covered Government support 

contractor to compete against the third party 

for Government or non-Government 

contracts. 

II. Discussion and Analysis 

Due to the significant level of detail 

in section 821, the recognition that the 

subject matter involves important 

privately-held intellectual property 

rights, and that the apparent 

congressional intent is that the private 

parties will enter into a direct legal 

relationship (e.g., a non-disclosure 

agreement) regarding protections for 

same, DoD decided to utilize the 

original statutory language and to 

preserve maximum flexibility for the 

private parties to reach mutual 

agreement—without unnecessary 

interference from the Government. 

Section 821 can be characterized as 

establishing two new requirements 

regarding DoD’s acquisition and 

exercise of rights in proprietary 

technical data. The statute— 

• Provides an exception to the 

statutorily authorized restrictions on the 

Government’s rights to release privatelydeveloped technical data outside the 

Government. The Government is now 

authorized to make limited releases of 

otherwise-proprietary data to certain 

types of support contractors that are 

supporting directly the Government’s 

management and oversight of 

programs—subject to certain 

protections. 

• Mandates specific restrictions for 

the Government support contractors that 

will receive the proprietary technical 

data, to ensure that this use does not 

threaten the data owner’s competitive 

advantage due to the proprietary 

information, and to provide the data 

owner with a more direct legal remedy 

against the support contractor for any 

breach of those use restrictions. 

A. Scope and Applicability 

Section 821 amended 10 U.S.C. 2320, 

which applies to technical data, but not 

to computer software (which is 

expressly excluded from the definition 

of technical data). There is no parallel 

statute that establishes regulatory 

requirements for DoD acquisition of 

computer software. However, it is 

longstanding Federal and DoD policy 

and practice to apply to computer 

software the same or analogous 

requirements that are used for technical 

data, whenever appropriate. Many 

issues are common to both technical 

data and computer software, and in 

such cases, conformity of coverage 

between technical data and computer 

software is desirable. 

For example, although the DFARS 

provides separate coverage for technical 

data and computer software (subparts 

227.71 and 227.72, respectively), the 

policies and procedures are identical or 

analogous in most respects. Regarding 

the allocation of rights in privatelydeveloped technologies, and the release 

restrictions and procedures used to 

protect such proprietary information 

against unauthorized release to 

Government support contractors (or any 

third party, for that matter), the DFARS 

adapts the detailed technical data 

procedures for application to 

noncommercial computer software (see 

227.7203), but does not apply those 

same detailed requirements to 

commercial computer software (see 

227.7202). Therefore, analogous 

revisions are made in this interim rule 

to the DFARS coverage for 

noncommercial software. 

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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11365 

B. Revised Licensing and New 

Requirements for Owners of Proprietary 

Information 

Section 821 creates a new exception 

to the statutory authorization for a 

private party to restrict the 

Government’s ability to release or 

disclose privately-developed technical 

data outside the Government. See 10 

U.S.C. 2320(c)(2). The Government is 

now authorized to release privatelydeveloped technical data to any support 

contractors that meet the criteria for a 

‘‘covered Government support 

contractor,’’ provided that the covered 

Government support contractor’s access 

and use of the data is for the ‘‘sole 

purpose of furnishing independent and 

impartial advice or technical assistance 

directly to the Government in support of 

the Government’s management and 

oversight of the program or effort to 

which such technical data relates.’’ 10 

U.S.C. 2320(c)(2). 

This interim rule incorporates the 

new exception into the definition of 

‘‘limited rights’’ and adds a new 

definition for ‘‘covered Government 

support contractor’’ into the following 

primary rights-allocation clauses: 

252.227–7013 (noncommercial technical 

data), 252.227–7014 (noncommercial 

software and software documentation), 

252.227–7015 (commercial technical 

data), and 252.227–7018 (Small 

Business Innovation Research (SBIR)). 

• The exception is inserted into the 

‘‘limited rights’’ definition by adding 

‘‘covered Government support 

contractors’’ to the existing lists of 

statutory exceptions to the prohibition 

against releasing limited rights data 

outside the Government. See 252.227– 

7013(a)(14) (formerly (13)); 252.227– 

7015(b)(2)(ii), which does not use the 

term ‘‘limited rights’’ but implements the 

same underlying statutory requirements; 

and 252.227–7018(a)(15) (formerly (14)). 

The revisions to 252.227–7013 and 

–7018 also required some minor 

restructuring of the listings of statutory 

exceptions. 

• The new definition for ‘‘covered 

Government support contractor’’ is 

inserted into the cited clauses as new 

252.227–7013(a)(5), 252.227–7014(a)(6), 

252.227–7015(a)(2), and 252.227– 

7018(a)(6). In each case, the insertion of 

a new definition requires the 

renumbering of all subsequent 

definitions in the affected clauses. The 

term is defined using, nearly verbatim, 

the new statutory definition at 2320(f)— 

with one key modification: Rather than 

reproducing all of the required nondisclosure restrictions in the definition, 

the definition cross-references the 

implementation of those same 

restrictions at revised 252.227–7025. 

In addition, the clauses are revised to 

incorporate specific additional 

requirements that are important to 

support and enable the implementation 

of the new exception. In particular, the 

new statutory exception establishes the 

basic requirement that the covered 

Government support contractor must 

execute a contract with the Government, 

in which the covered Government 

support contractor agrees and 

acknowledges that it ‘‘will’’ enter into a 

non-disclosure agreement directly with 

the owner of the proprietary data, and 

thus the clause must also implement 

this direct non-disclosure agreement 

requirement within the rights and 

obligations of the owner of the data. 

Since this direct non-disclosure 

agreement requirement is created with 

the intent of protecting the proprietary 

rights of the data owner, DoD has 

implemented this by providing the data 

owner the sole discretion to require 

such a direct non-disclosure agreement 

or waive the non-disclosure agreement 

requirement in writing in each 

individual case. The protection offered 

by the new direct non-disclosure 

agreement requirement should not be 

implemented in a manner that it 

becomes an unwanted and unnecessary 

burden on the party it is intended to 

protect. Thus, the data owner may 

determine that executing a direct nondisclosure agreement with every 

covered Government support contractor, 

in every individual case, is unnecessary; 

provided such determinations are made 

in view of the multi-layered protection 

scheme to ensure that the data owner’s 

rights are protected regardless of 

whether the parties execute a direct 

non-disclosure agreement, including the 

data owner already having a direct legal 

remedy against the covered Government 

support contractor for any unauthorized 

use or release pursuant to 252.227– 

7025(c)(2). 

Accordingly, the data owner is 

notified of its rights and obligations 

regarding covered Government support 

contractors in proposed new coverage at 

252.227–7013(b)(3)(iv), 252.227– 

7015(b)(3), and 252.227–7018(b)(8). In 

each case, the new coverage 

acknowledges the newly authorized 

release to covered Government support 

contractors; confirms that the data 

owner will be notified of such release; 

provides the data owner the discretion 

to require the covered Government 

support contractor to execute a direct 

non-disclosure agreement; and 

acknowledges that the data owner and 

covered Government support contractor 

may include additional terms and 

conditions in such a non-disclosure 

agreement by mutual agreement, as long 

as the basic statutory requirements for 

the non-disclosure agreement are also 

addressed (these basic statutory 

requirements are provided at 252.227– 

7025). 

In addition, these same requirements 

are also appropriate for adaptation to 

the corresponding DFARS coverage for 

noncommercial technical data. Thus, 

equivalent revisions are incorporated in 

252.227–7014, including a new 

definition of ‘‘covered Government 

support contractor’’ at paragraph (a)(6), 

a revised definition of ‘‘restricted rights’’ 

(the computer software equivalent of 

limited rights for technical data) at 

(a)(15) (formerly (14)), and the 

supporting rights and procedures at new 

(b)(3)(iii). Because there is no current 

DFARS coverage for this subject matter 

in the context of commercial computer 

software, no revisions are made to 

227.7202. 

C. New Requirements for Support 

Contractors Accessing GovernmentFurnished Proprietary Information 

As discussed previously, section 821 

allows covered Government support 

contractors to have access to third party 

proprietary technical data only when 

the covered Government support 

contractor is subject to specific 

prohibitions and requirements to protect 

that data. Although the statute 

incorporates these detailed protections 

within the definition of covered 

Government support contractor, DoD 

has implemented these protections 

within the existing DFARS coverage that 

implements use and non-disclosure 

requirements for recipients of 

Government-furnished information that 

is proprietary data or software, and has 

cross-referenced that implementation in 

the definition of covered Government 

support contractor. 

This requires adaptation of the 

current DFARS coverage governing the 

Government’s release to privatelyowned proprietary data and software, 

found primarily at 227.7103–7, and in 

the clause at 252.227–7025. There are 

two key revisions to 252.227–7025: 

• Paragraph (b)(1), regarding 

Government-furnished information 

marked with limited rights or restricted 

rights legends, is amended by adding 

new subparagraph (ii), which 

implements, nearly verbatim, the 

statutory requirements from 2320(f)(2), 

and also recognizes that the third party 

owner of the proprietary data or 

software has the sole discretion 

regarding whether a direct nondisclosure agreement will be required, 

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11366 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

disclosure agreement may incorporate 

additional terms and conditions by 

mutual agreement, provided that the 

basic statutory requirements are 

addressed. 

• New paragraph (b)(4) is added to 

cover the Government-furnished 

information marked with commercial 

restrictive legends, as necessary to 

implement the new statutory 

requirements, rights, and obligations 

related to technical data pertaining to 

commercial items, and to support the 

previously discussed revisions to 

252.227–7015. This new language 

parallels the revisions discussed above 

for noncommercial data and software at 

new (b)(1)(ii). 

D. Miscellaneous 

The revisions also require the covered 

Government support contractor to 

provide to the contracting officer, upon 

request, a copy of— 

• Any non-disclosure agreement 

executed by the covered Government 

support contractor and the proprietary 

data owner; or 

• Waiver of the non-disclosure 

agreement requirement by the 

proprietary data owner. 

See 252.227–7013(b)(3)(iv)(E), 252.227– 

7014(b)(3)(iii)(E), 252.227–7015(b)(3)(v), 

and 252.227–7025(b)(1)(ii)(E) and 

(b)(4)(ii)(E). This language was adapted 

from a similar authority at FAR 9.505– 

4(b), which mandates that contracting 

officers obtain copies of relevant nondisclosure agreements. 

Finally, to provide an appropriate link 

to these new requirements from the 

current FAR and DFARS coverage 

regarding non-disclosure agreement 

requirements for support contractors 

having access to third party proprietary 

information in performing advisory and 

assistance services, new DFARS 

209.505–4 is added. 

III. Executive Order 12866 

This rule was subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. This rule is not a 

major rule under 5 U.S.C. 804. 

IV. Regulatory Flexibility Act 

DoD does 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, et seq., but 

has nevertheless prepared an initial 

regulatory flexibility analysis, which is 

summarized as follows: 

The objective of the rule is to provide 

policy and procedures to allow certain 

types of Government support 

contractors to have access to proprietary 

technical data belonging to prime 

contractors and other third parties. 

Section 821 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84) provides the legal basis 

for the rule. 

The rule affects small businesses that 

are Government support contractors that 

need access to proprietary technical 

data belonging to prime contractors and 

other third parties. It will also affect any 

small business that is the owner of 

‘‘limited rights’’ technical data in the 

possession of the Government to which 

the support contractor will require 

access. 

The statute provides that the support 

contractor must be willing to sign a nondisclosure agreement with the owner of 

the data. The rule has implemented this 

requirement in a way that preserves 

maximum flexibility for the private 

parties to reach mutual agreement 

without unnecessary interference from 

the Government. To reduce burdens, the 

rule permits the owner of the data to 

waive the requirement for a nondisclosure agreement, since the 

Government clauses already adequately 

deal with non-disclosure. Further, the 

rule provides that the support 

contractors cannot be required to agree 

to any conditions not required by 

statute. The Government support 

contractor must provide to the 

contracting officer, upon request, a copy 

of the non-disclosure agreement or the 

waiver of the requirement for a nondisclosure agreement (consistent with 

FAR 9.505–4(b)). 

There are no known significant 

alternatives to the rule that would meet 

the requirements of the statute and 

minimize any significant economic 

impact of the rule on small entities. The 

impact of this rule on small business is 

not expected to be significant because 

the execution of a non-disclosure 

agreement is not likely to have a 

significant cost or administrative 

impact. 

V. Paperwork Reduction Act 

The Paperwork Reduction Act applies 

because the DFARS rule affects DFARS 

clauses 252.227–7013, 252.227–7014, 

252.227–7015, and 252.227–7025, 

which contain reporting or 

recordkeeping requirements that require 

the approval of the Office of 

Management and Budget under 44 

U.S.C., chapter 35. These clauses are 

covered by an approved OMB control 

number 0704–0369 in the amount of 

approximately 1.76 million hours. The 

requirement for Government support 

contractors to provide to the contracting 

officer a copy of a non-disclosure 

agreement or a waiver of the nondisclosure agreement requirement is 

only applicable if requested by the 

contracting officer. DoD has determined 

that the currently approved burden 

hours are sufficient to cover this 

minimal requirement. However, DoD 

will accept comments on how the 

interim rule would impact either the 

burden or other aspects of the approved 

information collection. 

VI. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment pursuant to 41 U.S.C. 1707 

(formerly 41 U.S.C. 418b) and FAR 

1.501–3(b). This interim rule 

implements section 821 of the National 

Defense Authorization Act for Fiscal 

Year 2010, enacted October 28, 2009. 

Section 821 provides authority for 

certain types of Government support 

contractors to have access to proprietary 

technical data belonging to prime 

contractors and other third parties, 

provided that the technical data owner 

may require the support contractor to 

execute a non-disclosure agreement 

having certain restrictions and 

remedies. Section 821 was effective 

upon enactment. This interim rule is 

necessary to provide the policies and 

procedures allowing a covered 

Government support contractor access 

to and use of any technical data 

delivered under a contract so that the 

contractor can furnish independent and 

impartial advice or technical assistance 

directly to the Government in support of 

the Government’s management and 

oversight of the program or effort to 

which such technical data relates. DoD 

will consider public comments received 

in response to this interim rule in the 

formulation of the final rule. 

List of Subjects in 48 CFR Parts 209, 

227, and 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 209, 227, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 209, 227, and 252 continues to 

read as follows: 

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

chapter 1. 

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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11367 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 2. In section 209.403, paragraph (1), 

remove ‘‘Navy—The General Counsel of 

the Department of the Navy’’ and add in 

its place ‘‘Navy—The Assistant General 

Counsel (Acquisition Integrity)’’. 

■ 3. Add sections 209.505 and 209.505– 

4 to subpart 209.5 to read as follows: 

209.505 General rules. 

209.505–4 Obtaining access to proprietary 

information. 

(b) Non-disclosure requirements for 

contractors accessing third party 

proprietary technical data or computer 

software are addressed at 227.7103–7(b), 

through use of the clause at 252.227– 

7025 as prescribed at 227.7103–6(c) and 

227.7203–6(d). Pursuant to that clause, 

covered Government support 

contractors may be required to enter 

into non-disclosure agreements directly 

with the third party asserting 

restrictions on limited rights technical 

data, commercial technical data, or 

restricted rights computer software. 

PART 227—PATENTS, DATA, AND 

COPYRIGHTS 

■ 4. Revise section 227.7102–2, 

paragraph (a), to read as follows: 

227.7102–2 Rights in technical data. 

(a) The clause at 252.227–7015, 

Technical Data—Commercial Items, 

provides the Government specific 

license rights in technical data 

pertaining to commercial items or 

processes. DoD may use, modify, 

reproduce, release, perform, display, or 

disclose data only within the 

Government. The data may not be used 

to manufacture additional quantities of 

the commercial items and, except for 

emergency repair or overhaul and for 

covered Government support 

contractors, may not be released or 

disclosed to, or used by, third parties 

without the contractor’s written 

permission. Those restrictions do not 

apply to the technical data described in 

227.7102–1(a). 

* * * * * 

■ 5. Amend section 227.7103–5 as 

follows: 

■ (a) Revise paragraph (c)(2) as set forth 

below; and 

■ (b) Revise paragraph (c)(4) as set forth 

below. 

227.7103–5 Government rights. 

* * * * * 

(c) * * * 

(2) Data in which the Government has 

limited rights may not be used, released, 

or disclosed outside the Government 

without the permission of the contractor 

asserting the restriction except for a use, 

release or disclosure that is— 

(i) Necessary for emergency repair and 

overhaul; or 

(ii) To a covered Government support 

contractor; or 

(iii) To a foreign government, other 

than detailed manufacturing or process 

data, when use, release, or disclosure is 

in the interest of the United States and 

is required for evaluational or 

informational purposes. 

* * * * * 

(4) When the person asserting limited 

rights permits the Government to 

release, disclose, or have others use the 

data subject to restrictions on further 

use, release, or disclosure, or for a 

release under paragraph (c)(2)(i), (ii), or 

(iii) of this subsection, the intended 

recipient must complete the use and 

non-disclosure agreement at 227.7103– 

7, or receive the data for performance of 

a Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends, prior to release or 

disclosure of the limited rights data. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Amend section 252.212–7001 as 

follows: 

■ (a) Amend the clause date by 

removing ‘‘(JAN 2011)’’ and adding in its 

place ‘‘(MAR 2011)’’; 

■ (b) In paragraph (b)(4), remove ‘‘(OCT 

2010)’’ and add in its place ‘‘(JAN 

2011)’’; 

■ (c) In paragraph (b)(7), remove ‘‘(JUL 

2009)’’ and add in its place ‘‘(JAN 

2011)’’; and 

■ (d) In paragraph (b)(17), remove 

‘‘(NOV 1995)’’ and add in its place 

‘‘(MAR 2011)’’. 

■ 7. Amend section 252.227–7013 as 

follows: 

■ (a) Amend the clause date by 

removing ‘‘(NOV 1995)’’ and adding in 

its place ‘‘(MAR 2011)’’; 

■ (b) Amend the introductory text of 

paragraph (a) by removing ‘‘:’’ and 

adding in its place ‘‘—‘‘; 

■ (c) Redesignate paragraphs (a)(5) 

through (a)(15) as paragraphs (a)(6) 

through (a)(16); 

■ (d) Add new paragraph (a)(5) to read 

as set forth below; 

■ (e) Revise newly designated paragraph 

(a)(14) to read as set forth below; 

■ (f) Add new paragraph (b)(3)(iv) to 

read as set forth below; 

■ (g) Amend the clause date for 

Alternate II by removing ‘‘(NOV 2009)’’ 

and adding in its place ‘‘(MAR 2011)’’; 

■ (h) Amend the introductory text of 

Alternate II by removing ‘‘(a)(16)’’ and 

adding in its place ‘‘(a)(17)’’; and 

■ (i) Redesignate paragraph (a)(16) of 

Alternate II as paragraph (a)(17). 

The additions and revisions read as 

follows: 

252.227–7013 Rights in technical data— 

noncommercial items. 

* * * * * 

(a) * * * 

(5) Covered Government support 

contractor means a contractor under a 

contract, the primary purpose of which 

is to furnish independent and impartial 

advice or technical assistance directly to 

the Government in support of the 

Government’s management and 

oversight of a program or effort (rather 

than to directly furnish an end item or 

service to accomplish a program or 

effort), provided that the contractor— 

(i) Is not affiliated with the prime 

contractor or a first-tier subcontractor on 

the program or effort, or with any direct 

competitor of such prime contractor or 

any such first-tier subcontractor in 

furnishing end items or services of the 

type developed or produced on the 

program or effort; and 

(ii) Receives access to technical data 

or computer software for performance of 

a Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends. 

* * * * * 

(14) Limited rights means the rights to 

use, modify, reproduce, release, 

perform, display, or disclose technical 

data, in whole or in part, within the 

Government. The Government may not, 

without the written permission of the 

party asserting limited rights, release or 

disclose the technical data outside the 

Government, use the technical data for 

manufacture, or authorize the technical 

data to be used by another party, except 

that the Government may reproduce, 

release, or disclose such data or 

authorize the use or reproduction of the 

data by persons outside the Government 

if— 

(i) The reproduction, release, 

disclosure, or use is— 

(A) Necessary for emergency repair 

and overhaul; or 

(B) A release or disclosure to— 

(1) A covered Government support 

contractor, for use, modification, 

reproduction, performance, display, or 

release or disclosure to authorized 

person(s) in performance of a 

Government contract; or 

(2) A foreign government, of technical 

data other than detailed manufacturing 

or process data, when use of such data 

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by the foreign government is in the 

interest of the Government and is 

required for evaluational or 

informational purposes; 

(ii) The recipient of the technical data 

is subject to a prohibition on the further 

reproduction, release, disclosure, or use 

of the technical data; and 

(iii) The contractor or subcontractor 

asserting the restriction is notified of 

such reproduction, release, disclosure, 

or use. 

* * * * * 

(b) * * * 

(3) * * * 

(iv) The Contractor acknowledges 

that— 

(A) Limited rights data is authorized 

to be released or disclosed to covered 

Government support contractors; 

(B) The Contractor will be notified of 

such release or disclosure; 

(C) The Contractor (or the party 

asserting restrictions as identified in the 

limited rights legend) may require each 

such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions) 

regarding the covered Government 

support contractor’s use of such data, or 

alternatively, that the Contractor (or 

party asserting restrictions) may waive 

in writing the requirement for a nondisclosure agreement; 

(D) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the limited rights 

data as set forth in the clause at 

252.227–7025, and shall not include any 

additional terms and conditions unless 

mutually agreed to by the parties to the 

non-disclosure agreement; and 

(E) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request. 

* * * * * 

■ 8. Amend section 252.227–7014 as 

follows: 

■ (a) Amend the clause date by 

removing ‘‘(JUN 1995)’’ and adding in its 

place ‘‘(MAR 2011)’’; 

■ (b) Amend the introductory text of 

paragraph (a) by removing ‘‘:’’ and 

adding in its place ‘‘—’’; 

■ (c) Redesignate paragraphs (a)(6) 

through (a)(15) as paragraphs (a)(7) 

through (a)(16); 

■ (d) Add new paragraph (a)(6) to read 

as set forth below; 

■ (e) Revise newly designated 

paragraphs (a)(15)(iv), (a)(15)(v)(C) and 

(D), and (a)(15)(vi)(B), and add 

(a)(15)(vii) to read as set forth below; 

■ (f) Add paragraph (b)(3)(iii) to read as 

set forth below. 

The additions and revisions read as 

follows: 

252.227–7014 Rights in noncommercial 

computer software and noncommercial 

computer software documentation. 

* * * * * 

(a) * * * 

(6) Covered Government support 

contractor means a contractor under a 

contract, the primary purpose of which 

is to furnish independent and impartial 

advice or technical assistance directly to 

the Government in support of the 

Government’s management and 

oversight of a program or effort (rather 

than to directly furnish an end item or 

service to accomplish a program or 

effort), provided that the contractor— 

(i) Is not affiliated with the prime 

contractor or a first-tier subcontractor on 

the program or effort, or with any direct 

competitor of such prime contractor or 

any such first-tier subcontractor in 

furnishing end items or services of the 

type developed or produced on the 

program or effort; and 

(ii) Receives access to technical data 

or computer software for performance of 

a Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends. 

* * * * * 

(15) * * * 

(iv) Modify computer software 

provided that the Government may— 

(A) Use the modified software only as 

provided in paragraphs (a)(15)(i) and 

(iii) of this clause; and 

(B) Not release or disclose the 

modified software except as provided in 

paragraphs (a)(15)(ii), (v), (vi), and (vii) 

of this clause; 

(v) * * * 

(C) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

pursuant to paragraph (a)(15)(iv) of this 

clause, for any other purpose; and 

(D) Such use is subject to the 

limitation in paragraph (a)(15)(i) of this 

clause; 

(vi) * * * 

(B) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

pursuant to paragraph (a)(15)(iv) of this 

clause, for any other purpose; and 

(vii) Permit covered Government 

support contractors to use, modify, 

reproduce, perform, display, or release 

or disclose the computer software to 

authorized person(s) in the performance 

of Government contracts that contain 

the clause at 252.227–7025, Limitations 

on the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends. 

* * * * * 

(b) * * * 

(3) * * * 

(iii) The Contractor acknowledges 

that— 

(A) Restricted rights computer 

software is authorized to be released or 

disclosed to covered Government 

support contractors; 

(B) The Contractor will be notified of 

such release or disclosure; 

(C) The Contractor (or the party 

asserting restrictions, as identified in 

the restricted rights legend) may require 

each such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions) 

regarding the covered Government 

support contractor’s use of such 

software, or alternatively, that the 

Contractor (or party asserting 

restrictions) may waive in writing the 

requirement for a non-disclosure 

agreement; 

(D) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the restricted rights 

software as set forth in the clause at 

252.227–7025, Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends, and shall not include any 

additional terms and conditions unless 

mutually agreed to by the parties to the 

non-disclosure agreement; and 

(E) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request. 

* * * * * 

■ 9. Amend section 252.227–7015 as 

follows: 

■ (a) Amend the clause date by 

removing ‘‘(NOV 1995)’’ and adding in 

its place ‘‘(MAR 2011)’’; 

■ (b) Revise paragraphs (a) and (b)(2), 

and add paragraph (b)(3) to read as set 

forth below; and 

■ (c) Revise Alternate I to read as set 

forth below. 

The additions and revisions read as 

follows: 

252.227–7015 Technical data— 

Commercial items. 

* * * * * 

(a) Definitions. As used in this 

clause— 

(1) Commercial item does not include 

commercial computer software. 

(2) Covered Government support 

contractor means a contractor under a 

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contract, the primary purpose of which 

is to furnish independent and impartial 

advice or technical assistance directly to 

the Government in support of the 

Government’s management and 

oversight of a program or effort (rather 

than to directly furnish an end item or 

service to accomplish a program or 

effort), provided that the contractor— 

(i) Is not affiliated with the prime 

contractor or a first-tier subcontractor on 

the program or effort, or with any direct 

competitor of such prime contractor or 

any such first-tier subcontractor in 

furnishing end items or services of the 

type developed or produced on the 

program or effort; and 

(ii) Receives access to technical data 

or computer software for performance of 

a Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends. 

(3) Form, fit, and function data means 

technical data that describes the 

required overall physical, functional, 

and performance characteristics (along 

with the qualification requirements, if 

applicable) of an item, component, or 

process to the extent necessary to permit 

identification of physically and 

functionally interchangeable items. 

(4) The term item includes 

components or processes. 

(5) Technical data means recorded 

information, regardless of the form or 

method of recording, of a scientific or 

technical nature (including computer 

software documentation). The term does 

not include computer software or data 

incidental to contract administration, 

such as financial and/or management 

information. 

(b) * * * 

(2) Except as provided in paragraph 

(b)(1) of this clause, the Government 

may use, modify, reproduce, release, 

perform, display, or disclose technical 

data within the Government only. The 

Government shall not— 

(i) Use the technical data to 

manufacture additional quantities of the 

commercial items; or 

(ii) Release, perform, display, 

disclose, or authorize use of the 

technical data outside the Government 

without the Contractor’s written 

permission unless a release, disclosure, 

or permitted use is necessary for 

emergency repair or overhaul of the 

commercial items furnished under this 

contract, or for performance of work by 

covered Government support 

contractors. 

(3) The Contractor acknowledges 

that— 

(i) Technical data covered by 

paragraph (b)(2) of this clause is 

authorized to be released or disclosed to 

covered Government support 

contractors; 

(ii) The Contractor will be notified of 

such release or disclosure; 

(iii) The Contractor (or the party 

asserting restrictions as identified in a 

restrictive legend) may require each 

such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions) 

regarding the covered Government 

support contractor’s use of such data, or 

alternatively, that the Contractor (or 

party asserting restrictions) may waive 

in writing the requirement for an nondisclosure agreement; 

(iv) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the data as set forth 

in the clause at 252.227–7025, 

Limitations on the Use or Disclosure of 

Government-Furnished Information 

Marked with Restrictive Legends, and 

shall not include any additional terms 

and conditions unless mutually agreed 

to by the parties to the non-disclosure 

agreement; and 

(v) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request. 

* * * * * 

Alternate I (Mar 2011) 

As prescribed in 227.7102–3(a)(2), 

add the following paragraphs (a)(6) and 

(b)(4) to the basic clause: 

(a)(6) Vessel design means the design of a 

vessel, boat, or craft, and its components, 

including the hull, decks, superstructure, and 

the exterior surface shape of all external 

shipboard equipment and systems. The term 

includes designs covered by 10 U.S.C. 7317, 

and designs protectable under 17 U.S.C. 

1301, et seq. 

(b)(4) Vessel designs. For a vessel design 

(including a vessel design embodied in a 

useful article) that is developed or delivered 

under this contract, the Government shall 

have the right to make and have made any 

useful article that embodies the vessel 

design, to import the article, to sell the 

article, and to distribute the article for sale 

or to use the article in trade, to the same 

extent that the Government is granted rights 

in the technical data pertaining to the vessel 

design. 

■ 10. Amend section 252.227–7018 as 

follows: 

■ (a) Amend the clause date by 

removing ‘‘(JAN 2011)’’ and adding in its 

place ‘‘(MAR 2011)’’; 

■ (b) Amend the introductory text of 

paragraph (a) by removing ‘‘:’’ and 

adding in its place ‘‘—’’; 

■ (c) Redesignate paragraphs (a)(6) 

through (a)(20) as paragraphs (a)(7) 

through (a)(21); 

■ (d) Add new paragraph (a)(6) to read 

as set forth below; 

■ (e) Revise newly designated paragraph 

(a)(15) to read as set forth below; 

■ (f) Revise newly designated 

paragraphs (a)(18)(iv) through (a)(18)(vi) 

to read as set forth below; 

■ (g) Add new paragraph (a)(18)(vii) to 

read as set forth below; and 

■ (h) Add paragraph (b)(8) to read as set 

forth below. 

The additions and revisions read as 

follows: 

252.227–7018 Rights in noncommercial 

technical data and computer software— 

small business innovation research (SBIR) 

program. 

* * * * * 

(a) * * * 

(6) Covered Government support 

contractor means a contractor under a 

contract, the primary purpose of which 

is to furnish independent and impartial 

advice or technical assistance directly to 

the Government in support of the 

Government’s management and 

oversight of a program or effort (rather 

than to directly furnish an end item or 

service to accomplish a program or 

effort), provided that the contractor— 

(i) Is not affiliated with the prime 

contractor or a first-tier subcontractor on 

the program or effort, or with any direct 

competitor of such prime contractor or 

any such first-tier subcontractor in 

furnishing end items or services of the 

type developed or produced on the 

program or effort; and 

(ii) Receives access to the technical 

data or computer software for 

performance of a Government contract 

that contains the clause at 252.227– 

7025, Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends. 

* * * * * 

(15) Limited rights means the rights to 

use, modify, reproduce, release, 

perform, display, or disclose technical 

data, in whole or in part, within the 

Government. The Government may not, 

without the written permission of the 

party asserting limited rights, release or 

disclose the technical data outside the 

Government, use the technical data for 

manufacture, or authorize the technical 

data to be used by another party, except 

that the Government may reproduce, 

release, or disclose such data or 

authorize the use or reproduction of the 

data by persons outside the Government 

if— 

(i) The reproduction, release, 

disclosure, or use is— 

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(A) Necessary for emergency repair 

and overhaul; or 

(B) A release or disclosure to— 

(1) A covered Government support 

contractor, for use, modification, 

reproduction, performance, display, or 

release or disclosure to authorized 

person(s) in performance of a 

Government contract; or 

(2) A foreign government, of technical 

data (other than detailed manufacturing 

or process data), when use of such data 

by the foreign government is in the 

interest of the Government and is 

required for evaluational or 

informational purposes; 

(ii) The recipient of the technical data 

is subject to a prohibition on the further 

reproduction, release, disclosure, or use 

of the technical data; and 

(iii) The contractor or subcontractor 

asserting the restriction is notified of 

such reproduction, release, disclosure, 

or use. 

* * * * * 

(18) Restricted rights apply only to 

noncommercial computer software and 

mean the Government’s rights to— 

* * * * * 

(iv) Modify computer software 

provided that the Government may— 

(A) Use the modified software only as 

provided in paragraphs (a)(18)(i) and 

(iii) of this clause; and 

(B) Not release or disclose the 

modified software except as provided in 

paragraphs (a)(18)(ii), (v), and (vi) of this 

clause; 

(v) Permit contractors or 

subcontractors performing service 

contracts (see 37.101 of the Federal 

Acquisition Regulation) in support of 

this or a related contract to use 

computer software to diagnose and 

correct deficiencies in a computer 

program, to modify computer software 

to enable a computer program to be 

combined with, adapted to, or merged 

with other computer programs or when 

necessary to respond to urgent tactical 

situations, provided that— 

(A) The Government notifies the party 

which has granted restricted rights that 

a release or disclosure to particular 

contractors or subcontractors was made; 

(B) Such contractors or subcontractors 

are subject to the non-disclosure 

agreement at 227.7103–7 of the Defense 

Federal Acquisition Regulation 

Supplement or are Government 

contractors receiving access to the 

software for performance of a 

Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends; 

(C) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

pursuant to paragraph (a)(18)(iv) of this 

clause, for any other purpose; and 

(D) Such use is subject to the 

limitation in paragraph (a)(18)(i) of this 

clause; 

(vi) Permit contractors or 

subcontractors performing emergency 

repairs or overhaul of items or 

components of items procured under 

this or a related contract to use the 

computer software when necessary to 

perform the repairs or overhaul, or to 

modify the computer software to reflect 

the repairs or overhaul made, provided 

that— 

(A) The intended recipient is subject 

to the non-disclosure agreement at 

227.7103–7 or is a Government 

contractor receiving access to the 

software for performance of a 

Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of Government– 

Furnished Information Marked with 

Restrictive Legends; and 

(B) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

pursuant to paragraph (a)(18)(iv) of this 

clause, for any other purpose; and 

(vii) Permit covered Government 

support contractors to use, modify, 

reproduce, perform, display, or release 

or disclose the computer software to 

authorized person(s) in the performance 

of Government contracts that contain 

the clause at 252.227–7025, Limitations 

on the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends. 

* * * * * 

(b) * * * 

(8) Covered Government support 

contractors. The Contractor 

acknowledges that— 

(i) Limited rights technical data and 

restricted rights computer software are 

authorized to be released or disclosed to 

covered Government support 

contractors; 

(ii) The Contractor will be notified of 

such release or disclosure; 

(iii) The Contractor may require each 

such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions as 

identified in a restrictive legend) 

regarding the covered Government 

support contractor’s use of such data or 

software, or alternatively that the 

Contractor (or party asserting 

restrictions) may waive in writing the 

requirement for a non-disclosure 

agreement; 

(iv) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the data or software 

as set forth in the clause at 252.227– 

7025, Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends, and shall not include any 

additional terms and conditions unless 

mutually agreed to by the parties to the 

non-disclosure agreement; and 

(v) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request. 

* * * * * 

■ 11. Amend section 252.227–7025 as 

follows: 

■ (a) Amend the clause date by 

removing ‘‘(JAN 2011)’’ and adding in its 

place ‘‘(MAR 2011)’’; and 

■ (b) Revise paragraphs (a) and (b) to 

read as set forth below. 

252.227–7025 Limitations on the use or 

disclosure of government-furnished 

information marked with restrictive legends. 

* * * * * 

(a)(1) For contracts in which the 

Government will furnish the Contractor 

with technical data, the terms ‘‘covered 

Government support contractor,’’ 

‘‘limited rights,’’ and ‘‘Government 

purpose rights’’ are defined in the clause 

at 252.227–7013, Rights in Technical 

Data—Noncommercial Items. 

(2) For contracts in which the 

Government will furnish the Contractor 

with computer software or computer 

software documentation, the terms 

‘‘covered Government support 

contractor,’’ ‘‘government purpose 

rights,’’ and ‘‘restricted rights’’ are 

defined in the clause at 252.227–7014, 

Rights in Noncommercial Computer 

Software and Noncommercial Computer 

Software Documentation. 

(3) For Small Business Innovation 

Research program contracts, the terms 

‘‘covered Government support 

contractor,’’ ‘‘limited rights,’’ and 

‘‘restricted rights’’ are defined in the 

clause at 252.227–7018, Rights in 

Noncommercial Technical Data and 

Computer Software—Small Business 

Innovation Research (SBIR) Program. 

(b) Technical data or computer 

software provided to the Contractor as 

Government-furnished information 

(GFI) under this contract may be subject 

to restrictions on use, modification, 

reproduction, release, performance, 

display, or further disclosure. 

(1) GFI marked with limited or 

restricted rights legends. 

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(i) The Contractor shall use, modify, 

reproduce, perform, or display technical 

data received from the Government with 

limited rights legends or computer 

software received with restricted rights 

legends only in the performance of this 

contract. The Contractor shall not, 

without the express written permission 

of the party whose name appears in the 

legend, release or disclose such data or 

software to any unauthorized person. 

(ii) If the Contractor is a covered 

Government support contractor, the 

Contractor further agrees and 

acknowledges that— 

(A) The data or software will be 

accessed and used only for the purposes 

stated in this contract and shall not be 

used to compete for any Government or 

non-Government contract; 

(B) The Contractor will take all 

reasonable steps to protect the technical 

data or computer software against any 

unauthorized release or disclosure; 

(C) The Contractor will ensure that 

the party whose name appears in the 

legend is notified of the Contractor’s 

access or use of such data or software; 

(D) The Contractor will enter into a 

non-disclosure agreement with the party 

whose name appears in the legend, if 

required to do so by that party, and that 

any such non-disclosure agreement will 

implement the restrictions on the 

Contractor’s use of such data or software 

as set forth in this clause, and shall not 

include any additional terms and 

conditions unless mutually agreed to by 

the parties to the non-disclosure 

agreement; 

(E) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request; and 

(F) That a breach of these obligations 

or restrictions may subject the 

Contractor to— 

(1) Criminal, civil, administrative, and 

contractual actions in law and equity for 

penalties, damages, and other 

appropriate remedies by the United 

States; and 

(2) Civil actions for damages and 

other appropriate remedies by the party 

whose name appears in the legend. 

(2) GFI marked with government 

purpose rights legends. The Contractor 

shall use technical data or computer 

software received from the Government 

with government purpose rights legends 

for government purposes only. The 

Contractor shall not, without the 

express written permission of the party 

whose name appears in the restrictive 

legend, use, modify, reproduce, release, 

perform, or display such data or 

software for any commercial purpose or 

disclose such data or software to a 

person other than its subcontractors, 

suppliers, or prospective subcontractors 

or suppliers, who require the data or 

software to submit offers for, or perform, 

contracts under this contract. Prior to 

disclosing the data or software, the 

Contractor shall require the persons to 

whom disclosure will be made to 

complete and sign the non-disclosure 

agreement at 227.7103–7. 

(3) GFI marked with specially 

negotiated license rights legends. The 

Contractor shall use, modify, reproduce, 

release, perform, or display technical 

data or computer software received from 

the Government with specially 

negotiated license legends only as 

permitted in the license. Such data or 

software may not be released or 

disclosed to other persons unless 

permitted by the license and, prior to 

release or disclosure, the intended 

recipient has completed the nondisclosure agreement at 227.7103–7. 

The Contractor shall modify paragraph 

(1)(c) of the non-disclosure agreement to 

reflect the recipient’s obligations 

regarding use, modification, 

reproduction, release, performance, 

display, and disclosure of the data or 

software. 

(4) GFI marked with commercial 

restrictive legends. 

(i) The Contractor shall use, modify, 

reproduce, perform, or display technical 

data that is or pertains to a commercial 

item and is received from the 

Government with a commercial 

restrictive legend (i.e., marked to 

indicate that such data are subject to 

use, modification, reproduction, release, 

performance, display, or disclosure 

restrictions) only in the performance of 

this contract. The Contractor shall not, 

without the express written permission 

of the party whose name appears in the 

legend, use the technical data to 

manufacture additional quantities of the 

commercial items, or release or disclose 

such data to any unauthorized person. 

(ii) If the Contractor is a covered 

Government support contractor, the 

Contractor further agrees and 

acknowledges that— 

(A) The data or software will be 

accessed and used only for the purposes 

stated in this contract and shall not be 

used to compete for any Government or 

non-Government contract; 

(B) The Contractor will take all 

reasonable steps to protect the technical 

data against any unauthorized release or 

disclosure; 

(C) The Contractor will ensure that 

the party whose name appears in the 

legend is or has been notified of the 

Contractor’s access or use of such data; 

(D) The Contractor will enter into a 

non-disclosure agreement with the party 

whose name appears in the legend, if 

required to do so by that party, and that 

any such non-disclosure agreement will 

implement the restrictions on the 

Contractor’s use of such data as set forth 

in this clause, and shall not include any 

additional terms and conditions unless 

mutually agreed to by the parties to the 

non-disclosure agreement; 

(E) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request; and 

(F) That a breach of these obligations 

or restrictions may subject the 

Contractor to— 

(1) Criminal, civil, administrative, and 

contractual actions in law and equity for 

penalties, damages, and other 

appropriate remedies by the United 

States; and 

(2) Civil actions for damages and 

other appropriate remedies by the 

contractor or subcontractor whose 

technical data is affected by the breach. 

* * * * * 

[FR Doc. 2011–4531 Filed 3–1–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 232, and 252 

RIN 0750–AG56 

Defense Federal Acquisition 

Regulation Supplement; Payments in 

Support of Emergencies and 

Contingency Operations (DFARS Case 

2009–D020) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as a final 

rule, with minor changes, an interim 

rule that amended the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement exemptions from 

the Prompt Payment Act. The interim 

rule exempted military payments 

related to contingencies and certain 

payments related to emergencies and 

the release or threatened release of 

hazardous substances. 

DATES: Effective date: March 2, 2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian E. Thrash, 703–602–0310. 

SUPPLEMENTARY INFORMATION: 

I. Background 

5 CFR part 1315 exempts from Prompt 

Payment Act compliance payments 

related to emergencies (defined in the 

WReier-Aviles on DSKGBLS3C1PROD with RULES