Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 30233 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209, 227, and 252 

RIN Number 0750–AG38 

Defense Federal Acquisition 

Regulation Supplement; Government 

Support Contractor Access to 

Technical Data (DFARS 2009–D031) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has adopted as final, 

with changes, an interim rule amending 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2010 that provides authority for 

certain types of Government support 

contractors to have access to proprietary 

technical data belonging to prime 

contractors and other third parties, 

provided that the technical data owner 

may require the support contractor to 

execute a non-disclosure agreement 

having certain restrictions and 

remedies. 

DATES: Effective: May 22, 2013. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, 571–372–6099. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published an interim rule in the 

Federal Register at 76 FR 11363 on 

March 2, 2011, to implement section 

821 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84), enacted October 28, 

2009. Section 821 provides authority for 

certain types of Government support 

contractors to have access to proprietary 

technical data belonging to prime 

contractors and other third parties, 

provided that the technical data owner 

may require the support contractor to 

execute a non-disclosure agreement 

having certain restrictions and 

remedies. 

The DFARS scheme for acquiring 

rights in technical data is based on 10 

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

establishes the basic allocation of rights 

in technical data, and provides, among 

other things, that a private party is 

entitled to restrict the Government’s 

rights to release or disclose privately 

developed technical data outside the 

Government. This restriction is 

implemented in the DFARS as the 

‘‘limited rights’’ license, which 

essentially limits the Government’s use 

of such data only for in-house use and 

which does not include release to 

Government support contractors. 

Historically, the statutorily based 

scheme has included only two 

categorical exceptions to the basic 

nondisclosure requirements for such 

privately developed data: 

• A ‘‘type’’ exception, in which the 

Government is granted unlimited rights 

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

are not treated as proprietary (e.g., form, 

fit, and function data; data necessary for 

operation, maintenance, installation, or 

training; publicly available data) 

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

• A ‘‘special needs’’ exception for 

certain important Government activities 

that are considered critical to 

Government operations (e.g., emergency 

repair and overhaul; evaluation by a 

foreign government), and are allowed 

only when the recipient of the data is 

made subject to strict nondisclosure 

restrictions on any further release of the 

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

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

add a third statutory exception to the 

prohibition on release of privately 

developed data outside the Government, 

allowing a covered Government support 

contractor access to and use of any 

technical data delivered under a 

contract for the sole purpose of 

furnishing independent and impartial 

advice or technical assistance directly to 

the Government in support of the 

Government’s management and 

oversight of the program or effort to 

which such technical data relates. The 

statute also provides a definition of 

‘‘covered Government support 

contractor.’’ 

Four respondents submitted public 

comments in response to the interim 

rule. 

II. Discussion and Analysis 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Summary of Significant Changes 

1. DoD has revised DFARS 

227.7104(b) and the definition of ‘‘Small 

Business Innovation Research (SBIR) 

data rights’’ to clarify the Government’s 

limited rights in technical data and 

restricted rights in computer software 

under the SBIR data rights license 

obtained under the clause at 252.227– 

7018. 

2. DoD has deleted the requirement 

that the covered Government support 

contractor provide copies of any nondisclosure agreements (NDAs) executed 

with proprietary information owners, 

upon request of the Contracting Officer 

(see 209.505–4, 252.227– 

7013(b)(3)(iv)(E), 252.227– 

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

252.227–7018(b)(8)(v), 252.227– 

7025(b)(1)(ii)(E), and 252.227– 

7025(b)(4)(ii)(E)). This is not a statutory 

requirement, and the benefit to the 

Government in collecting these copies is 

outweighed by the administrative 

burden. 

B. Analysis of Public Comments 

1. Non-Disclosure Agreements (NDAs) 

a. Timing of NDA 

Comment: Two respondents suggested 

that proprietary information should not 

be disclosed to support contractors until 

after the owner is given notice an NDA 

is executed. The respondents stated that 

if the Government allows access to the 

proprietary information without an 

NDA in place, then the proprietary 

information owner ‘‘loses the 

opportunity to enforce its rights’’ and 

the covered Government support 

contractor would no longer be 

motivated to enter into an NDA. 

DoD Response: A covered 

Government support contractor may not 

receive access to proprietary 

information in the absence of 

appropriate legally binding nondisclosure obligations. The 

Government’s contract with a covered 

Government support contractor must 

always contain the clause at 252.227– 

7025, which places legally binding use 

and non-disclosure restrictions on the 

covered Government support contractor 

before it has access to any proprietary 

information. In addition, 252.227– 

7025(c) expressly confirms that the 

owner of the proprietary information is 

a third-party beneficiary of those use 

and non-disclosure obligations and has 

a direct cause of action against the 

covered Government support contractor 

for any breach of those obligations. 

Thus, the covered Government support 

contractor cannot receive any such 

proprietary information unless and until 

it is already subject to, at a minimum, 

the legally binding use and 

nondisclosure obligations of the clause 

at 252.227–7025, which also subjects 

the covered Government support 

contractor to a direct cause of action by 

the proprietary information owner. 

b. Use and Non-Disclosure Agreement 

(DFARS 227.7103–7) 

Comment: One respondent suggested 

that in addition to allowing a Contractor 

to enter an NDA with the covered 

Government support contractor or to 


pmangrum on DSK3VPTVN1PROD with RULES
30234 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 

waive its right to an NDA, the contractor 

should be allowed, alternatively, to 

require the covered Government support 

contractor to execute the Use and NonDisclosure Agreement in 227.7103–7. 

DoD Response: The Use and NonDisclosure Agreement at 227.7103–7 is 

an agreement between the Government 

and a private party, and is used only 

when the information is being provided 

to the private party outside of a contract 

that contains the clause at 252.227– 

7025. When the receiving party is a 

covered Government support contractor, 

then, by definition, the contract under 

which the information is being provided 

must contain the clause at 252.227– 

7025—or else the receiving contractor 

cannot qualify as a covered Government 

support contractor and would not be 

authorized to receive the proprietary 

information for that contract 

performance. Thus, in these cases, the 

clause at 252.227–7025 is already 

applicable and the NDA at 227.7103–7 

is not to be used. Moreover, the 

227.7103–7 NDA would be insufficient 

because it does not address the 

specialized restrictions for covered 

Government support contractors— 

because those restrictions are fully 

implemented in the clause at 252.227– 

7025, which must be in the contract in 

order for the recipient to qualify to 

receive the information as a covered 

Government support contractor. 

c. Non-Disclosure Agreements That 

Exceed the Terms and Conditions of 

DFARS 252.227–7025 

Comment: Two respondents suggested 

that the requirement, in the NDA 

between the contractor and the covered 

Government support contractor, 

prohibiting any additional terms and 

conditions over those present in 

252.227–7025 without mutual 

agreement of the parties, would cause 

covered Government support 

contractors to ‘‘balk’’ at signing industry 

standard NDAs which most often 

include terms and conditions that are 

not included in 252.227–7025, and that 

the restrictions set forth in the clause 

‘‘do not make a legally sufficient 

document’’. The respondents suggested 

removing the prohibition by providing 

language allowing additional terms and 

conditions. 

One respondent also noted that an 

example of a restriction that is not 

included in the clause at 252.227–7025 

but that is ‘‘particularly important for 

enforcement’’ of the proprietary 

information owner’s rights, would be a 

requirement for the covered 

Government support contractor to have 

its employees sign individual NDAs 

containing materially similar terms. 

DoD Response: Regarding the legal 

sufficiency and effect of 252.227–7025, 

that clause unequivocally establishes a 

legally sufficient and binding obligation 

on the recipient of the information, 

which expressly includes all of the 

restrictions provided in the statutory 

language, and which expressly affirms 

that the proprietary information owner 

is a third-party beneficiary of those 

clause obligations and thereby has a 

direct cause of action against the 

recipient of the proprietary information 

for any breach of those obligations. 

Additionally, the clause at 252.227– 

7025 requires that any such direct NDA 

between the covered Government 

support contractor and the proprietary 

information owner will ‘‘implement’’ 

the requirements of the clause at 

252.227–7025, which would require, at 

a minimum, terms and conditions that 

are necessary to establish a legally 

sufficient NDA that covers all of the 

restrictions and obligations contained in 

the clause at 252.227–7025. Beyond 

those minimums, the parties are also 

free to negotiate for any additional terms 

and conditions by mutual agreement, 

but neither party can require the other 

to agree to a term or condition that is 

outside of those necessary to implement 

the 252.227–7025 requirements (which 

fully implement the statutory 

requirements). 

DoD agrees with the respondent’s 

suggestion that it is important to require 

the covered Government support 

contractor to ensure that its employees 

are subject to appropriate nondisclosure obligations, and observes that 

the obligations on the recipient 

contractor in the clause at 252.227–7025 

do, in fact, create an obligation for that 

contractor to ensure that it implements 

the use and nondisclosure restrictions 

appropriately in the performance of its 

contractual duties, which would 

necessarily include ensuring that its 

employees who will have access or use 

of the proprietary information are 

subject to the applicable use and 

nondisclosure restrictions. However, to 

the extent that this may be viewed as an 

implicit obligation of the clause at 

252.227–7025, and thus potentially 

could be overlooked or less than fully 

understood, such ambiguity must be 

eliminated. Accordingly, DoD has added 

a new paragraph (d) to 252.227–7025 to 

explicitly require the recipient 

contractor to ensure that its employees 

are subject to use and non-disclosure 

obligations prior to the employees being 

provided access to or use of the 

proprietary information. 

d. Performance Assessments and Root 

Cause Analysis (PARCA) Activities 

Comment: One respondent suggested 

that DoD’s Performance Assessments 

and Root Cause Analysis (PARCA) 

activities related to utilizing a ‘‘master 

NDA’’ between the Government and 

support contractors to cover third-party 

proprietary earned value management 

data (wherein the data owner is a thirdparty beneficiary of the master NDA) 

may be inconsistent with the approach 

in this rule (i.e., which provides for 

individual ‘‘direct’’ NDAs between the 

support contractor and the proprietary 

information owner), and recommends 

internal DoD coordination to eliminate 

inconsistencies. The respondent 

acknowledged that although such 

earned value management data largely 

involves ‘‘proprietary financial, 

business, and contract performance data 

and not Limited Rights Technical Data 

or Restricted Rights Software, it would 

be most beneficial to ensure consistency 

in the processes for disclosing both 

types of data.’’ 

DoD Response: This rule requires the 

use of the clause at 252.227–7025 with 

all covered Government support 

contractors, which serves as a form of 

‘‘master NDA’’ between the Government 

and the support contractor, in which the 

proprietary information owner is a 

third-party beneficiary of that NDA and 

thereby has a direct cause of action 

against the support contractor for any 

breach of the NDA requirements. 

However, as noted by the respondent, 

earned value management data does not 

include limited rights technical data or 

restricted rights computer software, and 

thus the PARCA efforts are outside the 

scope of this rule, as well as the 

underlying statutory obligations 

regarding a direct NDA between a 

covered Government support contractor 

and the proprietary information owner. 

2. Notification Requirements 

Comment: One respondent suggested 

that a covered Government support 

contractor should be obligated to notify 

the proprietary information owner upon 

first access to the proprietary 

information and annually thereafter. 

DoD Response: The interim rule 

placed a direct obligation on the 

covered Government support contractor 

to notify the proprietary information 

owner upon first access to the 

proprietary information. 

DoD has added at 252.227– 

7025(b)(5)(iii) a requirement to provide 

a thirty (30) day period within which 

the covered Government support 

contractor must notify the Contractor of 

the release or disclosure of the 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 30235 

Contractor’s limited rights data to the 

covered Government support contractor. 

The thirty (30) day period will provide 

a reasonable time for notification. 

The recommended annual notification 

requirement would place an onerous 

administrative burden on the covered 

Government support contractor. 

Accordingly, the final rule does not 

require an annual notification. 

3. Use and Release Conditions 

Comment: One respondent suggested 

that the use and release conditions that 

a covered Government support 

contractor must agree to, as set forth in 

10 U.S.C. 2320 (f)(2)(A)–(E), be added to 

the definition of ‘‘covered Government 

support contractor’’ at 252.227– 

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

252.227–7015(a)(2)(ii), and 252.227– 

7018(a)(6)(ii). 

DoD Response: These conditions are 

present in, and applied to all covered 

Government support contractors, at 

paragraph (b)(5) of 252.227–7025, which 

is a required clause for all contracts 

when it is anticipated that the 

Government will provide the contractor, 

for performance of its contract, technical 

data marked with another contractor’s 

restrictive legend(s) (see clause 

prescriptions at 227.7103–6 (c), 

227.7104(f)(1) and 227.7203–6(d)). A 

support contractor cannot qualify as a 

covered Government support contractor 

unless it meets the definition of a 

‘‘covered Government support 

contractor,’’ which requires that the 

clause at 252.227–7025 be included in 

the covered Government support 

contractor’s contract and thereby 

applies all of the cited restrictions to the 

covered Government support 

contractor’s use of the relevant data or 

software to perform that contract. This 

structure was used to include the 

substance of the applicable use and 

release conditions within the clause that 

serves to apply the restrictions to 

contractors of any and all types, 

including covered Government support 

contractors that are receiving such 

Government-furnished information 

(GFI). Thus, these restrictions are 

included in the definition of ‘‘covered 

Government support contractor’’ by 

cross-reference. 

4. Access and Use Restrictions 

a. Clarification 

Comment: One respondent suggested 

that the rule should clarify the access 

and use restrictions on a covered 

Government support contractor by 

expressly citing the statutory purpose 

limitation of ‘‘for the sole purpose of 

furnishing independent and impartial 

advice or technical assistance directly to 

the Government in support of the 

Government’s management and 

oversight of the program or effort to 

which such [proprietary information] 

relates’’ in the definitions of ‘‘limited 

rights’’ and ‘‘restricted rights’’ at DFARS 

252.227–7013(a)(14)(i)(B)(1), 252.227– 

7014(a)(15)(vii), –7018(a)(15)(i)(B)(1), 

and 252.227–7018(a)(18)(vii), and in the 

corresponding limitations on the 

covered Government support 

contractor’s access and use of such 

information at 252.227–7025(b)(5)(i). 

DoD Response: The statutory purpose 

restrictions on the covered Government 

support contractor’s access and use of 

such proprietary information are 

expressly incorporated at 252.227– 

7025(b)(5)(i) into the access and use 

restrictions on a covered Government 

support contractor for limited rights 

technical data and restricted rights 

computer software, and also for 

technical data related to commercial 

items. 

However, DoD has clarified the 

definitions of ‘‘limited rights’’ and 

‘‘restricted rights’’ to specify that the 

Government’s authorized release to a 

covered Government support contractor 

is in the performance of a covered 

Government support contract (which 

necessarily contains the clause at 

252.227–7025). Thus no further 

revisions are necessary. This structure 

was used to include the substance of the 

applicable use and release conditions 

within the clause that serves to apply 

the restrictions to the covered 

Government support contractors. 

b. Covered Government Support 

Contractors’ ‘‘Access and Use’’ of 

Proprietary Data 

Comment: One respondent noted that 

the statute authorizes covered 

Government support contractors only to 

‘‘access and use’’ the third party 

proprietary data, and suggested the 

deletion of the additional terms 

‘‘modify, reproduce, perform, display, 

release or disclose’’ (or corresponding 

terms ‘‘modification, reproduction, 

performance, display, release or 

disclose’’) in several sections of the rule 

(e.g., 252.227–7013(a)(14)(i)(B)(1), 

252.227–7014(a)(15)(vii), 252.227– 

7018(a)(15)(i)(B)(1) and (a)(18)(vii), and 

252.227–7025(b)(4)(ii)(A)). 

DoD Response: Independently of the 

subject matter of this rule, the statutory 

language at 10 U.S.C. 2320 and 2321 

refer to a limited set of regulated 

activities relating to technical data (e.g., 

‘‘use’’ and ‘‘release’’) However, in the 

detailed implementation of the statutory 

scheme, the DFARS utilizes a more 

complete set of verbs (e.g., ‘‘use, modify, 

reproduce, modify, perform, display, 

release or disclose’’) to ensure that all 

relevant activities are covered, 

including recognizing the inherent 

elements of a generic ‘‘use’’ that are 

expressly distinguished in the U.S. 

copyright laws (see, e.g., 17 U.S.C. 106). 

The rule uses this more complete and 

detailed set of verbs to be consistent 

with long-standing conventions in 

implementing these statutory 

requirements. In addition, all of the 

covered activities are subject to the 

numerous restrictions and safeguards 

that are implemented to protect the 

interests of the owner of the proprietary 

data. 

5. Authorized Person 

Comment: Two respondents noted 

that in the definitions of ‘‘limited 

rights’’ and ‘‘restricted rights’’ the 

covered Government support contractor 

is authorized to release the proprietary 

information to an ‘‘authorized person’’ 

in performing the covered Government 

support contractor’s contract (see 

DFARS 252.227–7013(a)(14)(i)(B)(1), 

252.227–7014(a)(15)(vii) and 252.227– 

7018(a)(15)(i)(B)(1)). The respondents 

suggested that the term ‘‘authorized 

person’’ be defined to ‘‘limit the support 

contractor’s right to release or disclose— 

to within the support contractor’s 

organization, and only for the 

performance of the support contract’’ or 

‘‘only to the Government, the contractor 

that owns the proprietary data, or 

parties the support contractor has 

confirmed have entered a nondisclosure agreement, license, 

subcontract, or other agreement giving 

the owning parties’ permission for such 

disclosure.’’ 

DoD Response: To make the reference 

to ‘‘authorized person’’ more clear, DoD 

has replaced the reference to an 

‘‘authorized person’’ that was used in 

the interim rule definitions of ‘‘limited 

rights’’ and ‘‘restricted rights’’ with the 

more definitive and accurate phrases ‘‘a 

person authorized to receive limited 

rights technical data’’ and ‘‘a person 

authorized to receive restricted rights 

computer software,’’ respectively. 

6. Definition of ‘‘Restricted Rights’’ 

Comment: One respondent noted that 

the rule makes revisions to the coverage 

for restricted rights noncommercial 

computer software that are analogous to 

the revisions for limited rights technical 

data, but recommends revisions to 

recognize certain important differences 

between restricted rights computer 

software and limited rights technical 

data (e.g., that the Government’s rights 

to use and reproduce restricted rights 

software are proscribed differently and 


pmangrum on DSK3VPTVN1PROD with RULES
30236 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 

to a greater extent than for limited rights 

technical data). The respondent 

recommends revisions to ensure that the 

covered Government support 

contractor’s authorized use of restricted 

rights software is subject to all of the 

restrictions that apply to the 

Government’s use (while retaining the 

additional restrictions that further 

restrict the covered Government support 

contractor’s activities). 

DoD Response: DoD has revised the 

definition of ‘‘restricted rights’’ to 

address the concerns raised by the 

respondent, ensuring that the covered 

Government support contractor’s 

authorized uses are no greater than the 

uses authorized for the Government (see 

252.227–7014(a)(15)(v)(D), (vi)(C), and 

(vii); and 252.227–7018(a)(18)(iv)(B), 

(v)(D), (vi)(C), and (vii)). 

7. Covered Government Support 

Contractor Organizational Conflict of 

Interest 

Comment: One respondent noted that 

the rule covers situations in which a 

covered Government support contractor 

could be in competition with a 

contractor-owner of proprietary data by 

prohibiting the support contractor from 

using that data to compete for any 

contracts, but this does not cover a 

support contractor that may not be 

considered to be in competition, but 

that would have access to such 

proprietary information in the course of 

advising the Government on overall 

acquisition strategies. The respondent 

recommends that the rule be revised to 

specifically prohibit such a support 

contractor from using the data to advise 

the Government on acquisition 

strategies or overall strategies in way 

that would benefit the support 

contractor. 

One respondent commented that the 

interim rule seemed to conflict with 

DoD guidance regarding organizational 

conflicts of interest, observing that one 

part of a large defense contractor might 

provide Government support 

contracting services thus creating 

opportunities for that contractor to 

obtain proprietary data of competitors. 

The respondent stated that only in 

limited circumstances on a case-by-case 

basis should support contractors be 

looking at proprietary information from 

other contractors and noted that a more 

appropriate solution might be to reduce 

DoD dependence on contractors. 

DoD Response: Independently of this 

rule, the organizational conflict of 

interest rules restrict a support 

contractor, including a covered 

Government support contractor, from 

advising the Government on acquisition 

strategies or overall strategies, or any 

other matter, in which the support 

contractor would have a financial or 

other interest (i.e., that would qualify as 

an organizational conflict of interest). 

Those prohibitions and restrictions 

apply regardless of whether the advising 

support contractor would have access to 

any third party proprietary data in the 

course of such advising. This rule 

supplements those existing 

organizational conflict of interest 

restrictions by adding layers of 

restriction, and additional safeguards, to 

ensure that any covered Government 

support contractor’s access to a third 

party proprietary data does not result in 

any competitive harm to the third party 

data owner. 

The rule implements the statutory 

prohibition against covered Government 

support contractors having affiliations 

with the prime and first-tier subs, or any 

direct competitor of the prime or such 

first-tier sub and reflects the policy 

determinations inherent in the statute. 

Alteration of DoD policy regarding the 

extent of DoD reliance on contractors is 

beyond the scope of rulemaking for this 

statutory implementation. 

8. Lower-Tier Subcontractor Affiliations 

Comment: One respondent 

commented that the definition of 

‘‘covered Government support 

contractor’’ is limited to preclude 

affiliation only with the prime and firsttier subcontractors on the relevant 

program(s), and suggested that support 

contractors that are not covered by the 

rule can have affiliations to lower-tier 

subcontractors and would not be subject 

to the requirement to sign the direct 

NDA. The respondent suggested that the 

rule should be amended to bring such 

support contractors under the 

requirement to sign the direct NDA. 

DoD Response: The prohibition 

against covered Government support 

contractors having affiliations with the 

prime and first-tier subcontractors is a 

substantive limitation from the statutory 

definition of ‘‘covered Government 

support contractor.’’ Changing the scope 

of the definition to prohibit affiliations 

at lower tiers would narrow the scope 

of the definition of ‘‘covered 

Government support contractor’’ in a 

manner that is inconsistent with the 

statute. The statutory scheme permits 

affiliations at lower tiers, but 

established numerous restrictions and 

protections to ensure that the covered 

Government support contractor’s access 

to proprietary information does not 

result in competitive harm. This scheme 

is reinforced in all cases by the rules 

and restrictions against organizational 

conflicts of interest. Thus, a support 

contractor with affiliations at lower tiers 

may still qualify as a covered 

Government support contractor if it 

meets all other definitional criteria (see 

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

252.227–7015(a)(2), and 252.227– 

7018(a)(6)), but in all such cases the 

covered Government support contractor 

would be subject to the obligations 

regarding direct NDAs (see 252.227– 

7025(b)(1)(ii)(D), (b)(4)(ii)(D), and (d)). If 

a support contractor is not covered by 

the rule (i.e., does not meet the 

definition of ‘‘covered Government 

support contractor’’), then that support 

contractor would not be subject to that 

direct NDA requirement, but that is 

because the support contractor would 

not be authorized to receive the 

proprietary information as a covered 

Government support contractor in the 

first place. It is impossible under this 

rule for a covered Government support 

contractor to be authorized to receive 

such proprietary information and not to 

be subject to the obligations regarding 

direct NDAs. 

9. DFARS Coverage at 209.5 

Comment: One respondent 

commented that it was not clear if the 

language of DFARS 209.505–4(b) of the 

interim rule was meant to be a 

replacement or supplement for FAR 

9.505–4(b). The respondent also 

commented that DFARS 209.505–4(b) 

covers all proprietary information, 

whereas the revisions to 10 U.S.C. 2320 

cover only technical data and the 

proposed revisions cover both cases. 

DoD Response: The DFARS text at 

209.505–4(b) addresses DoD-specific 

requirements and procedures applicable 

only to third party proprietary technical 

data and computer software being 

accessed by DoD contractors, including 

covered Government support 

contractors, which provides specific 

coverage for a subset of the more generic 

coverage in the FAR. In DoD, the 

unmodified FAR coverage still applies 

to DoD contractors accessing other types 

of proprietary information in the 

performance of their contracts. The 

numbering is consistent with DFARS 

drafting conventions. 

10. Commercial Restrictive Legend 

Comment: With respect to DFARS 

252.227–7025(b)(4)(i), one respondent 

commented that there is no requirement 

for a commercial restrictive legend in 10 

U.S.C. 2320 or DFARS 252.227–7015, 

nor is that term defined in the interim 

rule. The respondent suggested deletion 

of all references to a commercial 

restrictive legend. 

DoD Response: It is correct that 

neither 10 U.S.C. 2320 nor DFARS 

252.227–7015 provides the specific 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 30237 

form, content, or format for a restrictive 

legend on technical data related to 

commercial items (or technical data that 

is a commercial item). However, in 

accordance with 252.227–7015(d), the 

Government, and other persons to 

whom the Government may have 

released or disclosed technical data 

delivered or otherwise furnished under 

a contract, shall have no liability for any 

release or disclosure of technical data 

that are not ‘‘marked to indicate that 

such data are licensed data subject to 

use, modification, reproduction, release, 

performance, display, or disclosure 

restrictions.’’ In addition, although not 

included as a separate definition in the 

paragraph (a) definitions section of the 

clause at 252.227–7025, the reference to 

‘‘commercial restrictive legend’’ is 

defined parenthetically at 252.227– 

7025(b)(4)(i) as ‘‘(i.e., marked to indicate 

that such data are subject to use, 

modification, reproduction, release, 

performance, display, or disclosure 

restrictions).’’ 

11. Technical Correction 

Comment: One respondent 

commented that in the interim rule, the 

definitions of ‘‘limited rights,’’ 

‘‘restricted rights,’’ and ‘‘government 

purpose rights’’ were renumbered in 

DFARS 252.227–7013(a) and 252.227– 

7014(a), but the renumbering was not 

accommodated in 252.227–7013(b)(4) 

and 252.227–7014(b)(4) in an apparent 

drafting error. This had the effect of 

making government purpose rights the 

minimum rights that must be provided 

to the Government in Specially 

Negotiated License Rights. 

DoD Response: The respondent is 

correct. DoD issued a technical 

amendment on February 24, 2012, to 

correct the text of 252.227–7013(b)(4) 

and (b)(6), and 252.227–7014(b)(4) and 

(b)(6) to refer respectively to 252.227– 

7013(a)(14) (limited rights) and 

252.227–7014(a)(15) (restricted rights) 

(see 77 FR 10976). DoD also corrected 

paragraph references in 252.227– 

7013(b)(2)(i)(A). 

B. Other changes 

1. Conforming changes are made to 

paragraphs (b)(20), (b)(21), (c)(2) and 

(c)(3) of the clause at 252.212–7001, 

‘‘Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders Applicable to Defense 

Acquisitions of Commercial Items,’’ to 

update the cross-references to the 

clauses modified by this final rule. 

2. 252.227–7025(b)(1)(ii) and 

252.227–7025(b)(4)(ii) now reference a 

new paragraph (b)(5), to avoid repetition 

of the restrictions in each location. The 

restrictions regarding GFI marked with 

limited or restricted rights legends and 

GFI marked with commercial restrictive 

legends respectively are revised for 

clarity. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review by the Office of 

Information and Regulatory Affairs 

under section 6(b) of E.O. 12866, 

Regulatory Planning and Review, dated 

September 30, 1993. This rule is not a 

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

IV. Regulatory Flexibility Act 

DoD has prepared a final regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

This rule amends the Defense Federal 

Acquisition Regulation Supplement 

DFARS) to implement section 821 of the 

National Defense Authorization Act for 

Fiscal Year 2010. Section 821 provides 

authority for certain types of 

Government support contractors to have 

access to proprietary technical data 

belonging to prime contractors and 

other third parties, provided that the 

technical data owner may require the 

support contractor to execute a nondisclosure agreement having certain 

restrictions and remedies. 

No public comments were received in 

response to the initial regulatory 

flexibility analysis. 

No comments were received from the 

Chief Counsel for Advocacy of the Small 

Business Administration in response to 

the rule. The rule affects small 

businesses that are Government support 

contractors that need access to 

proprietary technical data or computer 

software belonging to prime contractors 

and other third parties. It will also affect 

any small business that is the owner of 

‘‘limited rights’’ technical data or 

restricted rights computer software in 

the possession of the Government to 

which the support contractor will 

require access. 

The rule imposes no reporting, 

recordkeeping, or other information 

collection requirements. However, the 

statute provides that the support 

contractor must be willing to sign a 

nondisclosure agreement with the 

owner of the data. The rule has 

implemented this requirement in a way 

that preserves maximum flexibility for 

the private parties to reach mutual 

agreement without unnecessary 

interference from the Government. To 

reduce burdens, the rule permits the 

owner of the data to waive the 

requirement for a nondisclosure 

agreement, since the Government 

clauses already adequately deal with 

non-disclosure. Further, the rule 

provides that the support contractors 

cannot be required to agree to any 

conditions not required by statute. In 

the final rule, DoD has deleted the 

requirement to provide a copy of the 

non-disclosure agreement or waiver to 

the contracting officer, upon request. 

Other than the alternatives already 

addressed, there are no known 

significant alternatives to the rule that 

would meet the requirements of the 

statute and minimize any significant 

economic impact of the rule on small 

entities. The impact of this rule on small 

business is not expected to be 

significant because the execution of a 

non-disclosure agreement is not likely 

to have a significant cost or 

administrative impact. 

V. Paperwork Reduction Act 

The rule imposes no new reporting, 

recordkeeping, or other information 

collection requirements. DFARS clauses 

252.227–7013, 252.227–7014, 252.227– 

7015, and 252.227–7025 contain 

reporting or recordkeeping requirements 

that require the approval of the Office of 

Management and Budget under 44 

U.S.C. chapter 35. However, these 

clauses are already covered by an 

approved OMB control number 0704– 

0369 in the amount of approximately 

1.76 million hours. 

List of Subjects in 48 CFR Parts 209, 

227, and 252 

Government procurement. 

Kortnee Stewart, 

Editor, Defense Acquisition Regulations 

System 

Therefore, DoD amends 48 CFR parts 

209, 227, and 252 as follows: 

■ 1. The authority citation for parts 209 

and 252 continues to read as follows: 

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

Chapter 1. 


pmangrum on DSK3VPTVN1PROD with RULES
30238 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 2. Section 209.505–4 is revised to read 

as follows: 

209.505–4 Obtaining access to proprietary 

information. 

(b) For contractors accessing third 

party proprietary technical data or 

computer software, non-disclosure 

requirements are addressed at 

227.7103–7(b), through use of the clause 

at 252.227–7025 as prescribed at 

227.7103–6(c) and 227.7203–6(d). 

Pursuant to that clause, covered 

Government support contractors may be 

required to enter into non-disclosure 

agreements directly with the third party 

asserting restrictions on limited rights 

technical data, commercial technical 

data, or restricted rights computer 

software. The contracting officer is not 

required to obtain copies of these 

agreements or to ensure that they are 

properly executed. 

PART 227—PATENTS, DATA, AND 

COPYRIGHTS 

■ 3. The authority citation for Part 227 

is amended by removing citation ‘‘41 

U.S.C. 421 and 48 CFR Chapter 1’’ and 

adding citation ‘‘41 U.S.C. 1303 and 48 

CFR Chapter 1’’ in its place. 

227.7103–5 [Amended] 

■ 4. Section 227.7103–5 paragraph (c)(2) 

is amended by inserting a comma after 

the word ‘‘release’’. 

■ 5. Section 227.7104 is amended by 

revising paragraph (b) and (c) to read as 

follows: 

227.7104 Contracts under the Small 

Business Innovation Research (SBIR) 

Program. 

(a) * * * 

(b) Under the clause at 252.227–7018, 

the Government obtains SBIR data rights 

in technical data and computer software 

generated under the contract and 

marked with the SBIR data rights 

legend. SBIR data rights provide the 

Government limited rights in such 

technical data and restricted rights in 

such computer software during the SBIR 

data protection period commencing 

with contract award and ending five 

years after completion of the project 

under which the data were generated. 

Upon expiration of the five-year 

restrictive license, the Government has 

unlimited rights in the SBIR technical 

data and computer software. 

(c) During the SBIR data protection 

period, the Government may not release 

or disclose SBIR technical data or 

computer software to any person except 

as authorized for limited rights 

technical data or restricted rights 

computer software, respectively. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.212–7001 [Amended] 

■ 6. Section 252.212–7001 is 

amended— 

■ a. By removing the clause date ‘‘(FEB 

2013)’’ and adding ‘‘(MAY 2013)’’ in its 

place; 

■ b. In paragraph (b)(20), by removing 

the clause date ‘‘(FEB 2012)’’ and 

adding ‘‘(MAY 2013)’’ in its place; 

■ c. In paragraph (b)(21), by removing 

the clause date ‘‘(DEC 2011)’’ and 

adding ‘‘(MAY 2013)’’ in its place; 

■ d. In paragraph (c)(2,) by removing the 

clause date ‘‘(FEB 2012)’’ and adding 

‘‘(MAY 2013)’’ in its place; and 

■ e. In paragraph (c)(3,) by removing the 

clause date ‘‘(DEC 2011)’’ and adding 

‘‘(MAY 2013)’’ in its place. 

252.227–7013 [Amended] 

■ 7. Section 252.227–7013 is 

amended— 

■ a. By removing the clause date ‘‘(FEB 

2012)’’ and adding ‘‘(MAY 2013)’’ in its 

place; 

■ b. By revising paragraph 

(a)(14)(i)(B)(1); and (b)(3)(iv) to read as 

follows: 

252.227–7013 Rights in Technical Data— 

Noncommercial Items. 

* * * * * 

(a) * * * 

(14) * * * 

(i) * * * 

(B) A release or disclosure to— 

(1) A covered Government support 

contractor in performance of its covered 

Government support contract for use, 

modification, reproduction, 

performance, display, or release or 

disclosure to a person authorized to 

receive limited rights technical data; or 

* * * * * 

(b) * * * 

(3) * * * 

(iv) The Contractor acknowledges 

that— 

(A) Limited rights data are authorized 

to be released or disclosed to covered 

Government support contractors; 

(B) The Contractor will be notified of 

such release or disclosure; 

(C) The Contractor (or the party 

asserting restrictions as identified in the 

limited rights legend) may require each 

such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions) 

regarding the covered Government 

support contractor’s use of such data, or 

alternatively, that the Contractor (or 

party asserting restrictions) may waive 

in writing the requirement for a nondisclosure agreement; and 

(D) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the limited rights 

data as set forth in the clause at 

252.227–7025, Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends. The non-disclosure agreement 

shall not include any additional terms 

and conditions unless mutually agreed 

to by the parties to the non-disclosure 

agreement. 

* * * * * 

252.227–7014 [Amended] 

■ 8. Section 252.227–7014 is 

amended— 

■ a. By removing the clause date ‘‘(FEB 

2012)’’ and adding ‘‘(MAY 2013)’’ in its 

place; 

■ b. By revising paragraph (a)(15); and 

(a)(16)(b)(iii) to read as follows: 

252.227–7014 Rights in Noncommercial 

Computer Software and Noncommercial 

Computer Software Documentation. 

* * * * * 

(a) * * * 

(15) ‘‘Restricted rights’’ apply only to 

noncommercial computer software and 

mean the Government’s rights to— 

(i) Use a computer program with one 

computer at one time. The program may 

not be accessed by more than one 

terminal or central processing unit or 

time shared unless otherwise permitted 

by this contract; 

(ii) Transfer a computer program to 

another Government agency without the 

further permission of the Contractor if 

the transferor destroys all copies of the 

program and related computer software 

documentation in its possession and 

notifies the licensor of the transfer. 

Transferred programs remain subject to 

the provisions of this clause; 

(iii) Make the minimum number of 

copies of the computer software 

required for safekeeping (archive), 

backup, or modification purposes; 

(iv) Modify computer software 

provided that the Government may— 

(A) Use the modified software only as 

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

(iii) of this clause; and 

(B) Not release or disclose the 

modified software except as provided in 

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

of this clause; 

(v) Permit contractors or 

subcontractors performing service 

contracts (see 37.101 of the Federal 

Acquisition Regulation) in support of 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 30239 

this or a related contract to use 

computer software to diagnose and 

correct deficiencies in a computer 

program, to modify computer software 

to enable a computer program to be 

combined with, adapted to, or merged 

with other computer programs or when 

necessary to respond to urgent tactical 

situations, provided that— 

(A) The Government notifies the party 

which has granted restricted rights that 

a release or disclosure to particular 

contractors or subcontractors was made; 

(B) Such contractors or subcontractors 

are subject to the use and nondisclosure agreement at 227.7103–7 of 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) or are 

Government contractors receiving 

access to the software for performance 

of a Government contract that contains 

the clause at DFARS 252.227–7025, 

Limitations on the Use or Disclosure of 

Government-Furnished Information 

Marked with Restrictive Legends; 

(C) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

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

clause, for any other purpose; and 

(D) Such use is subject to the 

limitations in paragraphs (a)(15)(i) 

through (iii) of this clause; 

(vi) Permit contractors or 

subcontractors performing emergency 

repairs or overhaul of items or 

components of items procured under 

this or a related contract to use the 

computer software when necessary to 

perform the repairs or overhaul, or to 

modify the computer software to reflect 

the repairs or overhaul made, provided 

that— 

(A) The intended recipient is subject 

to the use and non-disclosure agreement 

at DFARS 227.7103–7 or is a 

Government contractor receiving access 

to the software for performance of a 

Government contract that contains the 

clause at DFARS 252.227–7025, 

Limitations on the Use or Disclosure of 

Government-Furnished Information 

Marked with Restrictive Legends; 

(B) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

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

clause, for any other purpose; and 

(C) Such use is subject to the 

limitations in paragraphs (a)(15)(i) 

through (iii) of this clause; and 

(vii) Permit covered Government 

support contractors in the performance 

of covered Government support 

contracts that contain the clause at 

252.227–7025, Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends, to use, modify, reproduce, 

perform, display, or release or disclose 

the computer software to a person 

authorized to receive restricted rights 

computer software, provided that— 

(A) The Government shall not permit 

the covered Government support 

contractor to decompile, disassemble, or 

reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

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

clause, for any other purpose; and 

(B) Such use is subject to the 

limitations in paragraphs (a)(15)(i) 

through (iv) of this clause. 

(16) * * * 

(b) * * * 

(3) * * * 

(iii) The Contractor acknowledges 

that— 

(A) Restricted rights computer 

software is authorized to be released or 

disclosed to covered Government 

support contractors; 

(B) The Contractor will be notified of 

such release or disclosure; 

(C) The Contractor (or the party 

asserting restrictions, as identified in 

the restricted rights legend) may require 

each such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions) 

regarding the covered Government 

support contractor’s use of such 

software, or alternatively, that the 

Contractor (or party asserting 

restrictions) may waive in writing the 

requirement for a non-disclosure 

agreement; and 

(D) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the restricted rights 

software as set forth in the clause at 

252.227–7025, Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends. The non-disclosure agreement 

shall not include any additional terms 

and conditions unless mutually agreed 

to by the parties to the non-disclosure 

agreement. 

* * * * * 

■ 9. Section 252.227–7015 is 

amended— 

■ a. By removing the clause date ‘‘(DEC 

2011)’’ and adding ‘‘(MAY 2013)’’ in its 

place; 

■ b. By revising paragraph (b)(3) to read 

as follows: 

252.227–7015 Technical Data— 

Commercial Items. 

* * * * * 

(b) * * * 

(3) The Contractor acknowledges 

that— 

(i) Technical data covered by 

paragraph (b)(2) of this clause are 

authorized to be released or disclosed to 

covered Government support 

contractors; 

(ii) The Contractor will be notified of 

such release or disclosure; 

(iii) The Contractor (or the party 

asserting restrictions as identified in a 

restrictive legend) may require each 

such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions) 

regarding the covered Government 

support contractor’s use of such data, or 

alternatively, that the Contractor (or 

party asserting restrictions) may waive 

in writing the requirement for an nondisclosure agreement; and 

(iv) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the data as set forth 

in the clause at 252.227–7025, 

Limitations on the Use or Disclosure of 

Government-Furnished Information 

Marked with Restrictive Legends. The 

non-disclosure agreement shall not 

include any additional terms and 

conditions unless mutually agreed to by 

the parties to the non-disclosure 

agreement. 

* * * * * 

■ 10. Section 252.227–7018 is 

amended— 

■ a. By removing the clause date ‘‘(MAR 

2011)’’ and adding ‘‘(MAY 2013)’’ in its 

place; 

■ b. By revising paragraphs (a)(15); 

(a)(18); (a)(19); (b)(4); (b)(5); and (b)(8) to 

read as follows: 

252.227–7018 Rights in Noncommercial 

Technical Data and Computer Software— 

Small Business Innovation Research (SBIR) 

Program. 

(a) * * * 

(15) ‘‘Limited rights’’ means the rights 

to use, modify, reproduce, release, 

perform, display, or disclose technical 

data, in whole or in part, within the 

Government. The Government may not, 

without the written permission of the 

party asserting limited rights, release or 

disclose the technical data outside the 

Government, use the technical data for 

manufacture, or authorize the technical 

data to be used by another party, except 

that the Government may reproduce, 

release, or disclose such data or 

authorize the use or reproduction of the 

data by persons outside the Government 

if— 

(i) The reproduction, release, 

disclosure, or use is— 


pmangrum on DSK3VPTVN1PROD with RULES
30240 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 

(A) Necessary for emergency repair 

and overhaul; or 

(B) A release or disclosure to— 

(1) A covered Government support 

contractor in performance of its covered 

Government support contracts for use, 

modification, reproduction, 

performance, display, or release or 

disclosure to a person authorized to 

receive limited rights technical data; or 

(2) A foreign government, of technical 

data other than detailed manufacturing 

or process data, when use of such data 

by the foreign government is in the 

interest of the Government and is 

required for evaluational or 

informational purposes; 

(ii) The recipient of the technical data 

is subject to a prohibition on the further 

reproduction, release, disclosure, or use 

of the technical data; and 

(iii) The contractor or subcontractor 

asserting the restriction is notified of 

such reproduction, release, disclosure, 

or use. 

* * * * * 

(18) ‘‘Restricted rights’’ apply only to 

noncommercial computer software and 

mean the Government’s rights to— 

(i) Use a computer program with one 

computer at one time. The program may 

not be accessed by more than one 

terminal or central processing unit or 

time shared unless otherwise permitted 

by this contract; 

(ii) Transfer a computer program to 

another Government agency without the 

further permission of the Contractor if 

the transferor destroys all copies of the 

program and related computer software 

documentation in its possession and 

notifies the licensor of the transfer. 

Transferred programs remain subject to 

the provisions of this clause; 

(iii) Make the minimum number of 

copies of the computer software 

required for safekeeping (archive), 

backup, or modification purposes; 

(iv) Modify computer software 

provided that the Government may— 

(A) Use the modified software only as 

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

(iii) of this clause; and 

(B) Not release or disclose the 

modified software except as provided in 

paragraphs (a)(18)(ii), (v), (vi), and (vii) 

of this clause; 

(v) Permit contractors or 

subcontractors performing service 

contracts (see 37.101 of the Federal 

Acquisition Regulation) in support of 

this or a related contract to use 

computer software to diagnose and 

correct deficiencies in a computer 

program, to modify computer software 

to enable a computer program to be 

combined with, adapted to, or merged 

with other computer programs or when 

necessary to respond to urgent tactical 

situations, provided that— 

(A) The Government notifies the party 

which has granted restricted rights that 

a release or disclosure to particular 

contractors or subcontractors was made; 

(B) Such contractors or subcontractors 

are subject to the non-disclosure 

agreement at 227.7103–7 of the Defense 

Federal Acquisition Regulation 

Supplement or are Government 

contractors receiving access to the 

software for performance of a 

Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends; 

(C) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

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

clause, for any other purpose; and 

(D) Such use is subject to the 

limitations in paragraphs (a)(18)(i) 

through (iii) of this clause; 

(vi) Permit contractors or 

subcontractors performing emergency 

repairs or overhaul of items or 

components of items procured under 

this or a related contract to use the 

computer software when necessary to 

perform the repairs or overhaul, or to 

modify the computer software to reflect 

the repairs or overhaul made, provided 

that— 

(A) The intended recipient is subject 

to the non-disclosure agreement at 

227.7103–7 or is a Government 

contractor receiving access to the 

software for performance of a 

Government contract that contains the 

clause at 252.227–7025, Limitations on 

the Use or Disclosure of Government 

Furnished Information Marked with 

Restrictive Legends; 

(B) The Government shall not permit 

the recipient to decompile, disassemble, 

or reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

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

clause, for any other purpose; and 

(C) Such use is subject to the 

limitations in paragraphs (a)(18)(i) 

through (iii) of this clause; and 

(vii) Permit covered Government 

support contractors in the performance 

of Government contracts that contain 

the clause at 252.227–7025, Limitations 

on the Use or Disclosure of GovernmentFurnished Information Marked with 

Restrictive Legends, to use, modify, 

reproduce, perform, display, or release 

or disclose the computer software to a 

person authorized to receive restricted 

rights computer software, provided 

that— 

(A) The Government shall not permit 

the covered Government support 

contractor to decompile, disassemble, or 

reverse engineer the software, or use 

software decompiled, disassembled, or 

reverse engineered by the Government 

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

clause, for any other purpose; and 

(B) Such use is subject to the 

limitations in paragraphs (a)(18)(i) 

through (iv) of this clause. 

(19) ‘‘SBIR data rights’’ means the 

Government’s rights during the SBIR 

data protection period (specified in 

paragraph (b)(4) of this clause) to use, 

modify, reproduce, release, perform, 

display, or disclose technical data or 

computer software generated a SBIR 

award as follows: 

(i) Limited rights in such SBIR 

technical data; and 

(ii) Restricted rights in such SBIR 

computer software. 

* * * * * 

(b) * * * 

(4) SBIR data rights. Except for 

technical data, including computer 

software documentation, or computer 

software in which the Government has 

unlimited rights under paragraph (b)(1) 

of this clause, the Government shall 

have SBIR data rights in all technical 

data or computer software generated 

under this contract during the period 

commencing with contract award and 

ending upon the date five years after 

completion of the project from which 

such data were generated. 

(5) Specifically negotiated license 

rights. The standard license rights 

granted to the Government under 

paragraphs (b)(1) through (b)(4) of this 

clause may be modified by mutual 

agreement to provide such rights as the 

parties consider appropriate but shall 

not provide the Government lesser 

rights in technical data, including 

computer software documentation, than 

are enumerated in paragraph (a)(15) of 

this clause or lesser rights in computer 

software than are enumerated in 

paragraph (a)(18) of this clause. Any 

rights so negotiated shall be identified 

in a license agreement made part of this 

contract. 

(6) * * * 

(7) * * * 

(8) Covered Government support 

contractors. The Contractor 

acknowledges that— 

(i) Limited rights technical data and 

restricted rights computer software are 

authorized to be released or disclosed to 

covered Government support 

contractors; 

(ii) The Contractor will be notified of 

such release or disclosure; 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 30241 

(iii) The Contractor may require each 

such covered Government support 

contractor to enter into a non-disclosure 

agreement directly with the Contractor 

(or the party asserting restrictions as 

identified in a restrictive legend) 

regarding the covered Government 

support contractor’s use of such data or 

software, or alternatively that the 

Contractor (or party asserting 

restrictions) may waive in writing the 

requirement for a non-disclosure 

agreement; and 

(iv) Any such non-disclosure 

agreement shall address the restrictions 

on the covered Government support 

contractor’s use of the data or software 

as set forth in the clause at 252.227– 

7025, Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends. The non-disclosure agreement 

shall not include any additional terms 

and conditions unless mutually agreed 

to by the parties to the non-disclosure 

agreement. 

* * * * * 

252.227–7025 [Amended] 

■ 11. Section 252.227–7025 is revised as 

follows: 

252.227–7025 Limitations on the Use or 

Disclosure of Government-Furnished 

Information Marked with Restrictive 

Legends. 

As prescribed in 227.7103–6(c), 

227.7104(f)(1), or 227.7203–6(d), use the 

following clause: 

Limitations on the Use or Disclosure of 

Government-Furnished Information 

Marked With Restrictive Legends (May 

2013) 

(a)(1) For contracts in which the 

Government will furnish the Contractor with 

technical data, the terms ‘‘covered 

Government support contractor,’’ ‘‘limited 

rights,’’ and ‘‘Government purpose rights’’ 

are defined in the clause at 252.227–7013, 

Rights in Technical Data–Noncommercial 

Items. 

(2) For contracts in which the Government 

will furnish the Contractor with computer 

software or computer software 

documentation, the terms ‘‘covered 

Government support contractor,’’ 

‘‘government purpose rights,’’ and ‘‘restricted 

rights’’ are defined in the clause at 252.227– 

7014, Rights in Noncommercial Computer 

Software and Noncommercial Computer 

Software Documentation. 

(3) For Small Business Innovation Research 

program contracts, the terms ‘‘covered 

Government support contractor,’’ ‘‘limited 

rights,’’ ‘‘restricted rights,’’ and ‘‘SBIR data 

rights’’ are defined in the clause at 252.227– 

7018, Rights in Noncommercial Technical 

Data and Computer Software—Small 

Business Innovation Research (SBIR) 

Program. 

(b) Technical data or computer software 

provided to the Contractor as Governmentfurnished information (GFI) under this 

contract may be subject to restrictions on use, 

modification, reproduction, release, 

performance, display, or further disclosure. 

(1) GFI marked with limited rights, 

restricted rights, or SBIR data rights legends. 

(i) The Contractor shall use, modify, 

reproduce, perform, or display technical data 

received from the Government with limited 

rights legends, computer software received 

with restricted rights legends, or SBIR 

technical data or computer software received 

with SBIR data rights legends (during the 

SBIR data protection period) only in the 

performance of this contract. The Contractor 

shall not, without the express written 

permission of the party whose name appears 

in the legend, release or disclose such data 

or software to any unauthorized person. 

(ii) If the Contractor is a covered 

Government support contractor, the 

Contractor is also subject to the additional 

terms and conditions at paragraph (b)(5) of 

this clause 

(2) GFI marked with government purpose 

rights legends. The Contractor shall use 

technical data or computer software received 

from the Government with government 

purpose rights legends for government 

purposes only. The Contractor shall not, 

without the express written permission of the 

party whose name appears in the restrictive 

legend, use, modify, reproduce, release, 

perform, or display such data or software for 

any commercial purpose or disclose such 

data or software to a person other than its 

subcontractors, suppliers, or prospective 

subcontractors or suppliers, who require the 

data or software to submit offers for, or 

perform, contracts under this contract. Prior 

to disclosing the data or software, the 

Contractor shall require the persons to whom 

disclosure will be made to complete and sign 

the non-disclosure agreement at 227.7103–7. 

(3) GFI marked with specially negotiated 

license rights legends. 

(i) The Contractor shall use, modify, 

reproduce, release, perform, or display 

technical data or computer software received 

from the Government with specially 

negotiated license legends only as permitted 

in the license. Such data or software may not 

be released or disclosed to other persons 

unless permitted by the license and, prior to 

release or disclosure, the intended recipient 

has completed the non-disclosure agreement 

at 227.7103–7. The Contractor shall modify 

paragraph (1)(c) of the non-disclosure 

agreement to reflect the recipient’s 

obligations regarding use, modification, 

reproduction, release, performance, display, 

and disclosure of the data or software. 

(ii) If the Contractor is a covered 

Government support contractor, the 

Contractor may also be subject to some or all 

of the additional terms and conditions at 

paragraph (b)(5) of this clause, to the extent 

such terms and conditions are required by 

the specially negotiated license. 

(4) GFI technical data marked with 

commercial restrictive legends. 

(i) The Contractor shall use, modify, 

reproduce, perform, or display technical data 

that is or pertains to a commercial item and 

is received from the Government with a 

commercial restrictive legend (i.e., marked to 

indicate that such data are subject to use, 

modification, reproduction, release, 

performance, display, or disclosure 

restrictions) only in the performance of this 

contract. The Contractor shall not, without 

the express written permission of the party 

whose name appears in the legend, use the 

technical data to manufacture additional 

quantities of the commercial items, or release 

or disclose such data to any unauthorized 

person. 

(ii) If the Contractor is a covered 

Government support contractor, the 

Contractor is also subject to the additional 

terms and conditions at paragraph (b)(5) of 

this clause 

(5) Covered Government support 

contractors. If the Contractor is a covered 

Government support contractor receiving 

technical data or computer software marked 

with restrictive legends pursuant to 

paragraphs (b)(1)(ii), (b)(3)(ii), or (b)(4)(ii) of 

this clause, the Contractor further agrees and 

acknowledges that— 

(i) The technical data or computer software 

will be accessed and used for the sole 

purpose of furnishing independent and 

impartial advice or technical assistance 

directly to the Government in support of the 

Government’s management and oversight of 

the program or effort to which such technical 

data or computer software relates, as stated 

in this contract, and shall not be used to 

compete for any Government or nonGovernment contract; 

(ii) The Contractor will take all reasonable 

steps to protect the technical data or 

computer software against any unauthorized 

release or disclosure; 

(iii) The Contractor will ensure that the 

party whose name appears in the legend is 

notified of the access or use within thirty (30) 

days of the Contractor’s access or use of such 

data or software; 

(iv) The Contractor will enter into a nondisclosure agreement with the party whose 

name appears in the legend, if required to do 

so by that party, and that any such nondisclosure agreement will implement the 

restrictions on the Contractor’s use of such 

data or software as set forth in this clause. 

The non-disclosure agreement shall not 

include any additional terms and conditions 

unless mutually agreed to by the parties to 

the non-disclosure agreement; and 

(v) That a breach of these obligations or 

restrictions may subject the Contractor to— 

(A) Criminal, civil, administrative, and 

contractual actions in law and equity for 

penalties, damages, and other appropriate 

remedies by the United States; and 

(B) Civil actions for damages and other 

appropriate remedies by the party whose 

name appears in the legend. 

(c) Indemnification and creation of third 

party beneficiary rights. The Contractor 

agrees— 

(1) To indemnify and hold harmless the 

Government, its agents, and employees from 

every claim or liability, including attorneys 

fees, court costs, and expenses, arising out of, 

or in any way related to, the misuse or 

unauthorized modification, reproduction, 

release, performance, display, or disclosure 


pmangrum on DSK3VPTVN1PROD with RULES
30242 Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Rules and Regulations 

of technical data or computer software 

received from the Government with 

restrictive legends by the Contractor or any 

person to whom the Contractor has released 

or disclosed such data or software; and 

(2) That the party whose name appears on 

the restrictive legend, in addition to any 

other rights it may have, is a third party 

beneficiary who has the right of direct action 

against the Contractor, or any person to 

whom the Contractor has released or 

disclosed such data or software, for the 

unauthorized duplication, release, or 

disclosure of technical data or computer 

software subject to restrictive legends. 

(d) The Contractor shall ensure that its 

employees are subject to use and nondisclosure obligations consistent with this 

clause prior to the employees being provided 

access to or use of any GFI covered by this 

clause. 

[FR Doc. 2013–12055 Filed 5–21–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 120918468–3111–02] 

RIN 0648–XC675 

Fisheries of the Economic Exclusive 

Zone Off Alaska; Deep-Water Species 

Fishery by Vessels Using Trawl Gear in 

the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for species that comprise the 

deep-water species fishery by vessels 

using trawl gear in the Gulf of Alaska 

(GOA). This action is necessary because 

the second seasonal apportionment of 

the Pacific halibut bycatch allowance 

specified for the deep-water species 

fishery in the GOA has been reached. 

DATES: Effective 1200 hours, Alaska 

local time (A.l.t.), May 18, 2013, through 

1200 hours, A.l.t., July 1, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The second seasonal apportionment 

of the Pacific halibut bycatch allowance 

specified for the deep-water species 

fishery in the GOA is 296 metric tons as 

established by the final 2013 and 2014 

harvest specifications for groundfish of 

the GOA (78 FR 13162, February 26, 

2013), for the period 1200 hours, A.l.t., 

April 1, 2013, through 1200 hours, 

A.l.t., July 1, 2013. 

In accordance with § 679.21(d)(7)(i), 

the Administrator, Alaska Region, 

NMFS, has determined that the second 

seasonal apportionment of the Pacific 

halibut bycatch allowance specified for 

the trawl deep-water species fishery in 

the GOA has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for the deep-water 

species fishery by vessels using trawl 

gear in the GOA. The species and 

species groups that comprise the deepwater species fishery include sablefish, 

rockfish, deep-water flatfish, rex sole, 

and arrowtooth flounder. This closure 

does not apply to fishing by vessels 

participating in the cooperative fishery 

in the Rockfish Program for the Central 

GOA. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Acting Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of the deep-water 

species fishery by vessels using trawl 

gear in the GOA. NMFS was unable to 

publish a notice providing time for 

public comment because the most 

recent, relevant data only became 

available as of May 16, 2013. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.21 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: May 17, 2013. 

Kara Meckley, 

Acting Deputy Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2013–12195 Filed 5–17–13; 4:15 pm] 

BILLING CODE 3510–22–P 


pmangrum on DSK3VPTVN1PROD with RULES