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[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11363-11371]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4531]

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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.

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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 non-
disclosure 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:
    [cir] 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.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2009-D031 in the 
subject line of the message.
    [cir] Fax: 703-602-0350.
    [cir] 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

[[Page 11364]]

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, which does not include release 
to Government support contractors.
    Historically, the statutorily based scheme has included only two 
categorical exceptions to the basic non-disclosure 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 privately-developed 
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 privately-
developed 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.

[[Page 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 
privately-developed 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 non-disclosure 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 non-
disclosure 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 Government-
Furnished 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 privately-owned 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 non-
disclosure agreement will be required, and that the parties to the non-

[[Page 11366]]

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 non-
disclosure 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 non-disclosure 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 non-
disclosure 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 non-disclosure 
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 non-disclosure 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:

0
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.

[[Page 11367]]

PART 209--CONTRACTOR QUALIFICATIONS

0
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)''.

0
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

0
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).
* * * * *

0
5. Amend section 227.7103-5 as follows:
0
(a) Revise paragraph (c)(2) as set forth below; and
0
(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 Government-Furnished Information Marked with 
Restrictive Legends, prior to release or disclosure of the limited 
rights data.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Amend section 252.212-7001 as follows:
0
(a) Amend the clause date by removing ``(JAN 2011)'' and adding in its 
place ``(MAR 2011)'';
0
(b) In paragraph (b)(4), remove ``(OCT 2010)'' and add in its place 
``(JAN 2011)'';
0
(c) In paragraph (b)(7), remove ``(JUL 2009)'' and add in its place 
``(JAN 2011)''; and
0
(d) In paragraph (b)(17), remove ``(NOV 1995)'' and add in its place 
``(MAR 2011)''.
0
7. Amend section 252.227-7013 as follows:
0
(a) Amend the clause date by removing ``(NOV 1995)'' and adding in its 
place ``(MAR 2011)'';
0
(b) Amend the introductory text of paragraph (a) by removing ``:'' and 
adding in its place ``--``;
0
(c) Redesignate paragraphs (a)(5) through (a)(15) as paragraphs (a)(6) 
through (a)(16);
0
(d) Add new paragraph (a)(5) to read as set forth below;
0
(e) Revise newly designated paragraph (a)(14) to read as set forth 
below;
0
(f) Add new paragraph (b)(3)(iv) to read as set forth below;
0
(g) Amend the clause date for Alternate II by removing ``(NOV 2009)'' 
and adding in its place ``(MAR 2011)'';
0
(h) Amend the introductory text of Alternate II by removing ``(a)(16)'' 
and adding in its place ``(a)(17)''; and
0
(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 Government-
Furnished 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

[[Page 11368]]

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 non-disclosure 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.
* * * * *

0
8. Amend section 252.227-7014 as follows:
0
(a) Amend the clause date by removing ``(JUN 1995)'' and adding in its 
place ``(MAR 2011)'';
0
(b) Amend the introductory text of paragraph (a) by removing ``:'' and 
adding in its place ``--'';
0
(c) Redesignate paragraphs (a)(6) through (a)(15) as paragraphs (a)(7) 
through (a)(16);
0
(d) Add new paragraph (a)(6) to read as set forth below;
0
(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;
0
(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 Government-
Furnished 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 Government-Furnished 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.
* * * * *

0
9. Amend section 252.227-7015 as follows:
0
(a) Amend the clause date by removing ``(NOV 1995)'' and adding in its 
place ``(MAR 2011)'';
0
(b) Revise paragraphs (a) and (b)(2), and add paragraph (b)(3) to read 
as set forth below; and
0
(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

[[Page 11369]]

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 Government-
Furnished 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 non-disclosure 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.

0
10. Amend section 252.227-7018 as follows:
0
(a) Amend the clause date by removing ``(JAN 2011)'' and adding in its 
place ``(MAR 2011)'';
0
(b) Amend the introductory text of paragraph (a) by removing ``:'' and 
adding in its place ``--'';
0
(c) Redesignate paragraphs (a)(6) through (a)(20) as paragraphs (a)(7) 
through (a)(21);
0
(d) Add new paragraph (a)(6) to read as set forth below;
0
(e) Revise newly designated paragraph (a)(15) to read as set forth 
below;
0
(f) Revise newly designated paragraphs (a)(18)(iv) through (a)(18)(vi) 
to read as set forth below;
0
(g) Add new paragraph (a)(18)(vii) to read as set forth below; and
0
(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--

[[Page 11370]]

    (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 
Government-Furnished Information Marked with Restrictive Legends;
    (C) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (a)(18)(iv) of this clause, for any other 
purpose; and
    (D) Such use is subject to the 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 Government-Furnished 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.
* * * * *

0
11. Amend section 252.227-7025 as follows:
0
(a) Amend the clause date by removing ``(JAN 2011)'' and adding in its 
place ``(MAR 2011)''; and
0
(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.

[[Page 11371]]

    (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 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.
    (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
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