15138 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules

PART 1258—FEES

1. The authority citation for part 1258

continues to read as follows:

Authority: 44 U.S.C. 2116(c).

2. Section 1258.2 is amended by

revising paragraphs (c)(1)and (c)(3)

through (c)(5), adding paragraph

(c)(6)(v), and removing paragraph (c)(10)

to read as follows:

§ 1258.2 Applicability.

* * * * *

(c) * * *

(1) National Archives Trust Fund

Board publications, including microfilm

publications. Prices are available from

the Product Sales Section (NWPS), 700

Pennsylvania Ave., NW., Room G–9,

Washington, DC 20408.

* * * * *

(3) Motion picture, sound recording,

and video holdings of the National

Archives and Presidential libraries.

Information on the availability of and

prices for reproduction of these

materials are available from the Motion

Picture, Sound, and Video Branch

(NWDNM), 8601 Adelphi Rd., Room

3340, College Park, MD 20740–6001, or

from the Presidential library which has

such materials (see § 1253.3 of this

chapter for addresses).

(4) Electronic records. Information on

the availability of and prices for

duplication are available from the

Center for Electronic Records (NWRE),

8601 Adelphi Rd., Room 5320, College

Park, MD 20740–6001, or from the

Presidential library which has such

materials (see § 1253.3 of this chapter

for addresses).

(5) Still photography, including aerial

film, and oversize maps and drawings.

Information on the availability and

prices of reproductions of records held

in the Still Pictures Branch (NWDNS)

and the Cartographic and Architectural

Branch (NWDNC), both located at the

National Archives at College Park

facility, 8601 Adelphi Rd., College Park,

MD 20740–6001, and in the Presidential

libraries and regional records services

facility (see §§ 1253.3 and 1253.7 of this

chapter for addresses) should be

obtained from the unit which has the

original records.

(6) * * *

(v) Land entry records (order form

NATF 84)—$10.

* * * * *

3. The introductory text of § 1258.4(f)

is revised to read:

§ 1258.4 Exclusions.

* * * * *

(f) For records center records only:

* * * * *

4. Section 1258.10 is amended by

revising paragraph (a) to read:

§ 1258.10 Mail orders.

(a) There is a minimum fee of $10 per

order for reproductions which are sent

by mail to the customer.

* * * * *

§ 1258.11 [Removed]

5. Section 1258.11 is removed.

6. Section 1258.12 is amended by

revising paragraphs (a) through (f),

removing paragraph (g), and

redesignating paragraphs (h) and (i) as

paragraphs (g) and (h), respectively, to

read:

§ 1258.12 Fee schedule.

(a) Certification: $10.

(b) Electrostatic copying: (1) Paper-topaper copies (up to and including 11 in.

by 17 in.) made by the customer on a

NARA self-service copier: $0.10 per

copy.

(2) Paper-to-paper copies (up to and

including 11 in. by 17 in.) made by

NARA staff:

(i) At a Presidential library; at a

regional records services facility; and,

when ordered on a same-day ‘‘cash and

carry’’ basis, at a Washington, DC, area

facility: $0.50 per copy.

(ii) All other orders placed at a

Washington, DC, area facility: $10 for

the first 1–20 copies; $5 for each

additional block of up to 10 copies.

(3) Oversized electrostatic copies (per

linear foot): $2.50.

(4) Electrostatic copies (22 in. by 34

in.): $2.50.

(5) Microfilm or microfiche to paper

copies made by the customer on a

NARA self-service copier: $0.25.

(6) Microfilm or microfiche to paper

copies made by NARA staff: $1.75.

(c) Microfilm. (1) Original negative

microfilm (paper-to-microfilm): $10 for

the first 1–15 images; $14 for each

additional block of up to 20 pages.

(2) Direct duplicate copy of

accessioned microfilm: $34.00 per roll.

(3) Positive copy of accessioned

microfilm: $34.00 per roll.

(d) Diazo microfiche duplication (per

fiche): $2.10.

(e) Self-service video copying in the

Motion Picture, Sound and Video

Research Room: (1) Initial 90-min use of

video copying station with 120-minute

videocassette: $20.

(2) Additional 90-minute use of video

copying station with no videocassette:

$14.

(3) Blank 120-minute VHS

videocassette: $6.

(f) Self-service Polaroid prints: $9 per

print.

* * * * *

7. Section 1258.16 is revised to read:

§ 1258.16 Effective date.

The fees in § 1258.12 are effective on

July 1, 1997.

Dated: March 24, 1997.

John W. Carlin,

Archivist of the United States.

[FR Doc. 97–7898 Filed 3–28–97; 8:45 am]

BILLING CODE 7515–01–P

DEPARTMENT OF ENERGY

48 CFR Parts 915, 927, 952, and 970

RIN 1991–AB33

Revisions to Rights in Data

Regulations

AGENCY: Department of Energy.

ACTION: Proposed rule.

SUMMARY: The Department of Energy

(DOE) proposes to amend its

Acquisition Regulation to effect changes

to its rights in technical data regulations

to reflect a greater reliance upon the

rights in technical data coverage in the

Federal Acquisition Regulation and the

requirements relating to technology

transfer activities at certain DOE

laboratories.

DATES: Written comments must be

submitted no later than May 30, 1997.

ADDRESSES: Comments (three copies)

should be addressed to: Robert M.

Webb, U.S. Department of Energy,

Office of Procurement and Assistance

Management, Office of Policy, HR–51,

Room 8H–023, 1000 Independence

Avenue, SW., Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT:

Robert M. Webb, U.S. Department of

Energy, Office of Procurement and

Assistance Management, 1000

Independence Avenue, SW.,

Washington, D.C. 20585, (202) 586–

8264

Judson Hightower, U.S. Department of

Energy, Office of Assistant General

Counsel for Technology Transfer and

Intellectual Property, 1000

Independence Avenue, SW.,

Washington, D.C. 20585, (202) 586–

2813.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Discussion.

III. Public Comments.

A. Consideration and Availability of

Comments.

B. Public Hearing Determination.

IV. Procedural Requirements.

A. Review Under Executive order 12866.

B. Review Under Executive order 12988.

C. Review Under the Regulatory Flexibility

Act.

D. Review Under the Paperwork Reduction

Act.
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules 15139

E. Review Under the National

Environmental Policy Act.

F. Review Under Executive Order 12612.

I. Background

The Department has in place policy,

reflected in Acquisition Letter 87–5,

instructing its contracting officers to

rely substantially on the rights in

technical data coverage in the Federal

Acquisition Regulation (FAR).

Congress enacted the National

Competitiveness Technology Transfer

Act of 1989 (Pub. L. 101–189) which

had the effect of establishing technology

transfer missions for certain of DOE’s

management and operating contractors.

Acquisition Letters 88–1 and 91–8 were

issued on this subject, and on December

22, 1995 (60 FR 66510), the Department

promulgated technology transfer

regulations to implement that Act.

The purpose of this proposed rule is

to codify the policies in the acquisition

letters and provide an up-to-date

uniform treatment of the subject of

rights in technical data, including

provision for technology transfer.

II. Discussion

a. General

This proposed rule proposes to delete

the existing coverage of rights in

technical data, including regulations,

solicitation provisions, and contract

clauses currently in the Department of

Energy Acquisition Regulation (DEAR).

The proposed coverage would rely

substantially on the rights in technical

data regulations, provisions, and clauses

in the Federal Acquisition Regulation

(FAR), except where additional coverage

would be necessary to fulfill DOE’s

statutory duties to disseminate data

produced in its research, development

and demonstration programs. Also, the

coverage in Subpart 970.27 of the DEAR

is proposed to be rewritten to reflect the

considerations relating to and use of

proposed versions of the two alternate

rights in technical data clauses intended

for DOE’s management and operating

contracts.

b. Section-by-Section Analysis

The proposed rule would amend

subpart 915.4 of the DEAR by revising

subsection 915.413–2 to provide for the

use of non-Federal personnel in the

evaluation of competitive proposals.

That subsection would implement the

provisions of subsection 15.413–2 of the

FAR. In addition, that subsection would

supplement the FAR coverage at 37.204,

which implements sec. 6002 of Pub. L.

103–355, the Federal Acquisition

Streamlining Act of 1994, to provide

DOE’s process for determining that

neither sufficient DOE personnel nor

personnel from other Federal agencies

are available to evaluate proposals,

leading to the use of non-Federal

personnel for that purpose. The

coverage would include a standard

agreement to be executed by the nonFederal evaluator, stating his or her

responsibilities in the treatment of

proposal data. The current source of

regulatory coverage on this subject,

Subpart 927.70, would be deleted. That

same subpart also contains provisions

dealing with the Government’s rights in

proposal data and holding proposal data

in confidence. The proposed rule would

rely on the FAR coverage on these

subjects.

Subsection 915.608(d) would be

added to provide a reference to the

DEAR provision proposed to deal with

the use of non-Federal evaluators.

Subsection 927.303(b) is proposed to be

amended to include reference to DOE’s

patent waiver regulations now

promulgated at 10 CFR Part 784. In this

latter regard, section 927.370 has been

deleted because it is duplicative of those

patent waiver regulations. Portions of

sections 927.401 through 927.403 have

been proposed for deletion. A new

section 927.404 has been proposed to be

added. It would supplement the FAR

coverage at 27.404 by adding a

paragraph (k) on the subcontract

flowdown obligations under the rights

in technical data clause at FAR 52.227–

14, adding paragraph (l) to obtain, in

appropriate situations, the right for DOE

to require the contractor to license

proprietary data relating to the subject

of an individual contract to DOE or

others and adding (m) dealing with a

modification of the FAR clause in

contracts where access to DOE restricted

data is contemplated.

The proposed rule would add a

section 927.408 to make clear that, as a

result of DOE’s statutes that require

dissemination, this Department may not

apply the provisions of FAR 27.408 to

cosponsored or cost shared contracts.

The proposed rule would also add a

section 927.409 to supplement the FAR

with regard to the requirement of

contracting officers to include the FAR

rights in technical data clause at

52.227–14. In the Department of Energy,

Alternates I and V will always be used.

The proposed rule would substitute

definitions for use by DOE that simplify

and shorten the FAR definitions. The

only change to the definitions worthy of

note is that computer data bases would

be considered technical data and not

computer software. This reflects more

accurately the nature of computer data

bases. They are, in fact, a form of

technical data. The accurate depiction

of computer data bases becomes

increasingly important as a result of

DOE’s, the Government’s, and our

society’s increasing reliance on

computers and computer software. This

change has a beneficial result in that it

would create an enhanced opportunity

to prepare data bases in common

languages, not computer program

dependent. As a result more data bases

created under DOE contracts may

receive wider dissemination than when

data bases are considered computer

software. We have also proposed a

minor change to the definition of

unlimited rights, also taking into

account our increasing dependence on

computer networks, stating expressly,

what is implicit, that unlimited rights

include the right to disseminate data by

electronic means.

The Additional Data Requirements

clause at FAR 52.227–16 would be

required for use in all contracts for

research, development, and

demonstration except those with

universities or colleges for basic or

applied research of $500,000 or less.

The various existing provisions and

clauses from 952.227 would be deleted

from the DEAR with the intention that

DOE’s Contracting Officers use the

provisions and clauses on the same

subject that appear in FAR Subpart

52.227.

The proposed rule would insert into

the DEAR Alternate VI, dealing with

contractor licensing and Alternate VII,

dealing with contractor access to DOE

restricted data. Those alternates would

be used in conjunction with the FAR

Rights in Technical Data clause at

52.227–14.

The solicitation provision at

Subsection 952.227–84 would be

amended to make references consistent

with the DEAR.

In DEAR part 970 sections 970.2705

and 970.2706 would be revised to

describe the use of and the general

content of the two rights in technical

data clauses that would be used

alternatively in DOE management and

operating contracts.

The proposed rule would add a new

section 970.2707 to instruct the

appropriate use of the management and

operating contract rights in technical

data clauses.

Finally, the proposed rule would add

a rights in technical data clause,

970.5204–XX, for DOE management and

operating contracts that do not have a

technology transfer mission and

another, 970.5204–YY, for those

management and operating contracts

that do have a technology transfer

mission.
15140 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules

III. Public Comments

A. Consideration and Availability of

Comments

Interested persons are invited to

participate by submitting data, views, or

arguments with respect to the proposed

Department of Energy Acquisition

Regulation amendments set forth in this

notice. Three copies of written

comments should be submitted to the

address indicated in the ADDRESS

section of this notice. All written

comments received by the date

indicated in the DATES section of this

notice and all other relevant information

in the record will be carefully assessed

and fully considered prior to

publication of the final rule. All

comments received will be available for

public inspection in the DOE Reading

Room, Room 1E–190, Forrestal

Building, 1000 Independence Avenue,

SW., Washington, D.C. 20585, between

the hours of 9 am and 4 pm, Monday

through Friday, except Federal holidays.

Any information considered to be

confidential must be so identified and

submitted in writing, one copy only.

DOE reserves the right to determine the

confidential status of the information

and to treat it according to our

determination (See 10 CFR Part

1004.11).

B. Public Hearing Determination

The Department has concluded that

this proposed rule does not involve a

substantial issue of fact or law and that

the proposed rule should not have

substantial impact on the nation’s

economy or a large number of

individuals or businesses. Therefore,

pursuant to Public Law 95–91, the DOE

Organization Act, and the

Administrative Procedure Act (5 U.S.C.

553), the Department does not plan to

hold a public hearing on this proposed

rule. However, should a sufficient

number of people request a public

hearing, the Department will reconsider

its determination.

IV. Procedural Requirements

A. Review Under Executive Order 12866

Today’s regulatory action has been

determined not to be a ‘‘significant

regulatory action’’ under Executive

Order 12866, ‘‘Regulatory Planning and

Review,’’ (58 FR 51735, October 4,

1993). Accordingly, this action was not

subject to review under that Executive

Order by the Office of Information and

Regulatory Affairs of the Office of

Management and Budget (OMB).

B. Review Under Executive Order 12988

With respect to the review of existing

regulations and the promulgation of

new regulations, section 3(a) of

Executive Order 12988, ‘‘Civil Justice

Reform,’’ 61 FR 4729 (February 7, 1996),

imposes on Executive agencies the

general duty to adhere to the following

requirements: (1) eliminate drafting

errors and ambiguity; (2) write

regulations to minimize litigation; and

(3) provide a clear legal standard for

affected conduct rather than a general

standard and promote simplification

and burden reduction. With regard to

the review required by section 3(a),

section 3(b) of Executive Order 12988

specifically requires that Executive

agencies make every reasonable effort to

ensure that the regulation: (1) clearly

specifies the preemptive effect, if any;

(2) clearly specifies any effect on

existing Federal law or regulation; (3)

provides a clear legal standard for

affected conduct while promoting

simplification and burden reduction; (4)

specifies the retroactive effect, if any; (5)

adequately defines key terms; and (6)

addresses other important issues

affecting clarity and general

draftsmanship under any guidelines

issued by the Attorney General. Section

3(c) of Executive Order 12988 requires

Executive agencies to review regulations

in light of applicable standards in

section 3(a) and section 3(b) to

determine whether they are met or it is

unreasonable to meet one or more of

them. DOE has completed the required

review and determined that, to the

extent permitted by law, the proposed

regulations meet the relevant standards

of Executive Order 12988.

C. Review Under the Regulatory

Flexibility Act

This proposed rule has been reviewed

under the Regulatory Flexibility Act of

1980, Public Law 96–354, that requires

preparation of an initial regulatory

flexibility analysis for any rule that is

likely to have significant economic

impact on a substantial number of small

entities. The contracts to which this

rulemaking would apply are agreements

that contemplate the creation of

technical data. Normally, such

contracts, and any resulting

subcontracts, would be cost

reimbursement type contracts. Thus,

there would not be an adverse economic

impact on contractors or subcontractors.

Accordingly, DOE certifies that this

proposed rule, if adopted, would not

have a significant economic impact on

a substantial number of small entities,

and, therefore, no regulatory flexibility

analysis has been prepared.

D. Review Under the Paperwork

Reduction Act

No additional information or

recordkeeping requirements are

proposed to be imposed by this

rulemaking. Accordingly, no OMB

clearance is required under the

Paperwork Reduction Act of 1980 (44

U.S.C. 3501 et seq.).

E. Review Under the National

Environmental Policy Act

DOE has concluded that promulgation

of this proposed rule falls into a class of

actions which would not individually or

cumulatively have significant impact on

the human environment, as determined

by DOE’s regulations (10 CFR Part 1021,

Subpart D) implementing the National

Environmental Policy Act (NEPA) of

1969 (42 U.S.C. 4321 et seq.).

Specifically, this proposed rule is

categorically excluded from NEPA

review because the proposed

amendments to the DEAR would be

strictly procedural (categorical

exclusion A6). Therefore, this proposed

rule does not require an environmental

impact statement or environmental

assessment pursuant to NEPA.

F. Review Under Executive Order 12612

Executive Order 12612, (52 FR 41685,

October 30, 1987), requires that

regulations, rules, legislation, and any

other policy actions be reviewed for any

substantial direct effects on States, on

the relationship between the Federal

government and the States, or in the

distribution of power and

responsibilities among the various

levels of Government. If there are

sufficient substantial direct effects, then

the Executive Order requires the

preparation of a federalism assessment

to be used in all decisions involved in

promulgating and implementing a

policy action. This proposed rule, when

finalized, would merely reflect current

practice relating to rights in technical

data. States which contract with DOE

will be subject to this rule. However,

DOE has determined that this rule will

not have a substantial direct effect on

the institutional interests or traditional

functions of the States.

List of Subjects in 48 CFR Parts 915,

927, 952, and 970

Government Procurement.

Issued in Washington, D.C. on March 18,

1997.

Richard H. Hopf,

Deputy Assistant Secretary for Procurement

and Assistance Management.

For the reasons set out in the

preamble, Chapter 9 of Title 48 of the
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules 15141

Code of Federal Regulations is proposed

to be amended as set forth below.

PART 915—CONTRACTING BY

NEGOTIATION

1. The authority citation for Part 915

continues to read as follows:

Authority: 42 U.S.C. 7254; 40 U.S.C.

486(c).

2. Subsection 915.413–2 is revised to

read as follows:

915.413–2 Evaluation of Proposals. (DOE

coverage-paragraphs (e) and (f))

(e) In order to maintain the integrity

of the procurement process and to

assure that the propriety of proposals

will be respected, the notice at FAR

15.413–2(e) for solicited proposals and

FAR 15.509(d) for unsolicited proposals

shall be affixed to a cover sheet attached

to each proposal upon receipt by DOE.

Use of the notice neither alters any

obligation of the Government, nor

diminishes any rights in the

Government to use or disclose data or

information.

(f)(1) Normally, evaluations of

proposals shall be performed only by

employees of the Department of Energy.

As used in this section, ‘‘proposals’’

includes the offers in response to

requests for proposals, sealed bids,

program opportunity announcements,

program research and development

announcements, or any other method of

solicitation where the review of

proposals or bids is to be performed by

other than peer review. In certain cases,

in order to gain necessary expertise,

employees of other agencies may be

used in instances in which they will be

available and committed during the

period of evaluation. Evaluators or

advisors who are not Federal

employees, including employees of DOE

management and operating contractors

may be used where necessary. Where

such non-Federal employees are used as

evaluators, they may only participate as

members of technical evaluation

committees. They may not serve as

members of the Source Evaluation

Board or equivalent board or committee.

(2)(i) Pursuant to section 6002 of

Public Law 103–355, a determination is

required for every competitive

procurement as to whether sufficient

DOE personnel with the necessary

training and capabilities are available to

evaluate the proposals that will be

received. This determination, discussed

at FAR 37.204, shall be made in the

memorandum appointing the technical

evaluation committee by the Source

Selection Official, in the case of Source

Evaluation Board procurements, or by

the Contracting Officer in all other

procurements.

(ii) Where it is determined such

qualified personnel are not available

within DOE but are available from other

Federal agencies, a determination to that

effect shall be made by the same

officials in the same memorandum.

Should such qualified personnel not be

available, a determination to use nonFederal evaluators or advisors must be

made in accordance with paragraph

(f)(3) of this subsection.

(3) The decision to employ nonFederal evaluators or advisors,

including employees of DOE

management and operating contractors,

in Source Evaluation Board

procurements must be made by the

Source Selection Official with the

concurrence of the Head of the

Contracting Activity. In all other

procurements, the decision shall be

made by the senior program official or

designee with the concurrence of the

Head of the Contracting Activity. In a

case where multiple solicitations are

part of a single program and would call

for the same resources for evaluation, a

class determination to use non-Federal

evaluators may be made by the DOE

Procurement Executive.

(4) Where such non-Federal

evaluators or advisors are to be used, the

solicitation shall contain a provision

informing prospective offerors that nonFederal personnel may be used in the

evaluation of proposals.

(5) The nondisclosure agreement as it

appears in paragraph (f)(6) of this

subsection shall be signed before DOE

furnishes a copy of the proposal to nonFederal evaluators or advisors, and care

should be taken that the required

handling notice described in paragraph

(e) of this subsection is affixed to a

cover sheet attached to the proposal

before it is disclosed to the participant.

In all instances, such persons will be

required to comply with nondisclosure

of information requirements and

requirements involving Procurement

Integrity, see FAR 3.104; with

requirements to prevent the potential for

personal conflicts of interest; or, where

a non-Federal evaluator or advisor are

acquired under a contract with an entity

other than the individual, with

requirements to prevent the potential for

organizational conflicts of interest.

(6) Non-Federal evaluators or advisors

shall be required to sign the following

agreement prior to having access to any

proposal:

Nondisclosure Agreement

Whenever DOE furnishes a proposal for

evaluation, I, the recipient, agree to use the

information contained in the proposal only

for DOE evaluation purposes and to treat the

information obtained in confidence. This

requirement for confidential treatment does

not apply to information obtained from any

source, including the proposer, without

restriction. Any notice or restriction placed

on the proposal by either DOE or the

originator of the proposal shall be

conspicuously affixed to any reproduction or

abstract thereof and its provisions strictly

complied with. Upon completion of the

evaluation, it is agreed all copies of the

proposal and abstracts, if any, shall be

returned to the DOE office which initially

furnished the proposal for evaluation. Unless

authorized by the contracting officer, I agree

that I shall not contact the originator of the

proposal concerning any aspect of its

elements.

Recipient: llllllllllllllll

Date: llllllllllllllllll

(End of Agreement)

3. Subpart 915.6, Source Selection, is

added to read as follows:

Subpart 915.6—Source Selection

915.608 Proposal evaluation. (DOE

coverage-paragraph (d))

(d) Personnel from DOE, other

Government agencies, consultants, and

contractors, including those who

manage or operate Government-owned

facilities, may be used in the evaluation

process as advisors when their services

are necessary and available. When

personnel outside the Government,

including those of contractors who

operate or manage Government-owned

facilities, are to be used as advisors or

as evaluators, approval and

nondisclosure procedures as required by

48 CFR (DEAR) 915.413–2 shall be

followed and a notice of the use of nonFederal evaluators shall be included in

the solicitation. In all instances, such

personnel will be required to comply

with DOE conflict of interest and

nondisclosure requirements.

PART 927—PATENTS, DATA, AND

COPYRIGHTS

4. The authority citation for Part 927

continues to read as follows:

Authority: Sec. 644 of the Department of

Energy Organization Act, Pub. L. 95–91 (42

U.S.C. 7254); Sec. 148 of the Atomic Energy

Act of 1954, as amended (42 U.S.C. 2168);

Federal Nonnuclear Energy Research and

Development Act of 1974, Sec. 9, (42 U.S.C.

5908); Atomic Energy Act of 1954, as

amended, Sec. 152, (42 U.S.C. 2182);

Department of Energy National Security and

Military Applications of Nuclear Energy

Authorization Act of 1987, as amended, Sec.

3131(a), (42 U.S.C. 7261a.)

927.300 [Amended]

5. Section 927.300(b) is amended by

replacing the phrase ‘‘41 CFR 9–9.109’’
15142 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules

as it appears in the second sentence

with ‘‘10 CFR part 784.’’

927.303 [Amended]

6. Section 927.303(b) is amended by

inserting the phrase ‘‘, pursuant to 10

CFR part 784,’’ after ‘‘advance waiver’’

in the first sentence and after

‘‘identified invention’’ in the second

sentence.

927.370 [Removed and reserved]

7. Remove and reserve section

927.370.

927.401 [Removed]

8. Section 927.401 is removed.

927.402–1 [Amended]

9. In section 927.402–1, paragraphs (c)

through (g) are removed, and paragraph

(h) is redesignated as paragraph (c).

927.402–3 [Removed]

10. Section 927.402–3 is removed.

11. Section 927.404 is added to read

as follows:

927.404 Rights in Technical Data in

Subcontracts. (DOE coverage—paragraphs

(g), (k), (l), and (m))

(g)(4) Contractors are required by

paragraph (d)(3) of the clause at FAR

52.227–14, as modified pursuant to 48

CFR 927.409(a)(1) to acquire permission

from DOE to assert copyright in any

computer software first produced in the

performance of the contract. This

requirement reflects DOE’s established

software distribution program,

recognized at FAR 27.404(g)(2), and the

Department’s statutory dissemination

obligations. When a contractor requests

permission to assert copyright in

accordance with paragraph (d)(3) of the

Rights in Data-General clause as

prescribed for use at 48 CFR

927.409(a)(1), patent counsel shall

predicate its decision on the policy and

procedures reflected in paragraph (e) of

the clause at 48 CFR 970.5204–YY

Rights in Data-Technology Transfer.

(k) Subcontracts. (1)(i) It is the

responsibility of prime contractors and

higher tier subcontractors, in meeting

their obligations with respect to contract

data, to obtain from their subcontractor

the rights in, access to, and delivery of

such data on behalf of the Government.

Accordingly, subject to the policy set

forth in this section, and subject to the

approval of the contracting officer,

where required, selection of appropriate

technical data provisions for

subcontracts is the responsibility of the

prime contractors or higher-tier

subcontractors. In many but not all

instances, use of the Rights in Technical

Data clause of FAR 52.227–14 in a

subcontract will provide for sufficient

Government rights in and access to

technical data. The inspection rights

afforded in Alternate V of that clause

normally should be obtained only in

first-tier subcontracts having as a

purpose the conduct of research,

development, or demonstration work or

the furnishing of supplies for which

there are substantial technical data

requirements as reflected in the prime

contract.

(ii) If a subcontractor refuses to accept

technical data provisions affording

rights in and access to technical data on

behalf of the Government, the contractor

shall so inform the Contracting Officer

in writing and not proceed with the

award of the subcontract without

written authorization of the Contracting

Officer.

(iii) In prime contracts (or higher-tier

subcontracts) which contain the

Additional Technical Data

Requirements clause at FAR 52.227–16,

it is the further responsibility of the

contractor (or higher-tier subcontractor)

to determine whether inclusion of such

clause in a subcontract is required to

satisfy technical data requirements of

the prime contract (or higher-tier

subcontract).

(2) As is the case for DOE in its

determination of technical data

requirements, the Additional Technical

Data Requirements clause at FAR

52.227–16 should not be used at any

subcontracting tier where the technical

data requirements are fully known.

Normally the clause will be used only

in subcontracts having as a purpose the

conduct of research, development, or

demonstration work. Prime contractors

and higher-tier subcontractors shall not

use their power to award subcontracts

as economic leverage to inequitably

acquire rights in the subcontractor’s

confidential data developed at private

expense for their private use, and they

shall not acquire rights to confidential

data developed at private expense on

behalf of the Government for standard

commercial items unless required by the

prime contract.

(l) Contractor licensing. In many

contracting situations the achievement

of DOE’s objectives would be frustrated

if the Government, at the time of

contracting, did not obtain on behalf of

responsible third parties and itself

limited license rights in and to

confidential data developed at private

expense necessary to the practice of

subject inventions or data first produced

or delivered in the performance of the

contract. Where the purpose of the

contract is research, development, or

demonstration, contracting officers

should consult with program officials

and patent counsel to consider whether

such rights should be acquired. No such

rights should be obtained from a small

business or non-profit organization,

unless similar rights in background

inventions of the small business or nonprofit organization have been

authorized. In all cases when the

contractor has agreed to include a

provision assuring commercial

availability of background patents,

consideration should be given to

securing for the Government and

responsible third parties at reasonable

royalties and under appropriate

restrictions, co-extensive license rights

for data which are proprietary data.

When such a license right is deemed

necessary, the Rights in Data-General

clause at FAR 52.227–14 should be

supplemented by the addition of

Alternate VI as provided at 48 CFR

952.227–14. Alternate VI will normally

be sufficient to cover proprietary

contract data for items and processes

that were used in the contract and are

necessary in order to insure widespread

commercial use or practical utilization

of a subject of the contract. The

expression ‘‘subject of the contract’’ is

intended to limit the licensing required

in Alternate VI to the fields of

technology specifically contemplated in

the contract effort and may be replaced

by a more specific statement of the

fields of technology intended to be

covered in the manner described in the

patent clause at 48 CFR 952.227–13

pertaining to ‘‘Background Patents.’’

Where, however, proprietary contract

data cover the main purpose or basic

technology of the research,

development, or demonstration effort of

the contract, rather than

subcomponents, products, or processes

which are ancillary to the contract

effort, the limitations set forth in

paragraphs (j)(1) through (j)(4) of

Alternate VI of 48 CFR 952.227–14

should be modified or deleted.

Paragraph (j) of 48 CFR 952.227–14

further provides that technical data may

be specified in the contract as being

excluded from or not subject to the

licensing requirements thereof. This

exclusion can be implemented by

limiting the applicability of the

provisions of paragraph (j) of 48 CFR

952.227–14 to only those classes or

categories of proprietary data

determined as being essential for

licensing. Although contractor licensing

may be required under paragraph (j) of

FAR 52.227–14, the final resolution of

questions regarding the scope of such

licenses the terms thereof, including

provisions for confidentiality, and

reasonable royalties, is then left to the

negotiation of the parties.
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules 15143

(m) Access to restricted data. In

contracts involving access to certain

categories of DOE-owned Category C–24

restricted data, as set forth in 10 CFR

part 725, DOE has reserved the right to

receive reasonable compensation for the

use of its inventions and discoveries,

including its related data and

technology. Accordingly, in contracts

where access to such restricted data is

to be provided to contractors, Alternate

VII shall be incorporated into the

appropriate rights in technical data

clause of the contract in accordance

with the instructions at 48 CFR

952.227–14. In addition, in any other

types of contracting situations in which

the contractor may be given access to

restricted data, appropriate limitations

on the use of such data must be

specified.

12. Subsection 927.404–70 is added to

read as follows:

927.404–70 Statutory Programs.

Occasionally Congress enacts

legislation that authorizes or requires

the Department to protect from public

disclosure specific data first produced

in the performance of the contract.

Examples of such programs are ‘‘the

Metals Initiative’’ and section 3001(d) of

the Energy Policy Act. In such cases

DOE Patent Counsel is responsible for

providing the appropriate contractual

provisions for protecting the data in

accordance with the statute. Generally,

such clauses will be based upon the

Rights in Data-General clause prescribed

for use at 48 CFR 927.409(a) with

appropriate modifications to define and

protect the ‘‘protected data’’ in

accordance with the applicable statute.

When contracts under such statutes are

to be awarded, contracting officers must

acquire from patent counsel the

appropriate contractual provisions.

Additionally, the Contracting Officer

must consult with DOE program

personnel and patent counsel to identify

data first produced in the performance

of the contract that will be recognized

by the parties as protected data and

what protected data will be made

available to the public notwithstanding

the statutory authority to withhold the

data from public dissemination.

13. Section 927.408 is added to read

as follows:

927.408 Cosponsored research and

development activities.

Because of the Department of Energy’s

statutory duties to disseminate data first

produced under its contracts for

research, development, and

demonstration, the provisions of FAR

27.408 do not apply to cosponsored or

cost shared contracts.

14. Section 927.409 is added to read

as follows:

927.409 Solicitation provisions and

contract clauses. (DOE coverage—

paragraphs (a), (h), (s), and (t)).

(a)(1) The contracting officer shall

insert the clause at FAR 52.227–14,

Rights in Data-General, substituting the

following paragraph (a) and including

the following paragraph (d)(3), Alternate

I, and Alternate V in solicitations and

contracts if it is contemplated that data

will be produced, furnished, or acquired

under the contract:

(a) Definitions.

(1) Computer data bases, as used in this

clause, means a collection of data in a form

capable of, and for the purpose of, being

stored in, processed, and operated on by a

computer. The term does not include

computer software.

(2) Computer software, as used in this

clause, means (i) computer programs which

are data comprising a series of instructions,

rules, routines, or statements, regardless of

the media in which recorded, that allow or

cause a computer to perform a specific

operation or series of operations and (ii) data

comprising source code listings, design

details, algorithms, processes, flow charts,

formulae, and related material that would

enable the computer program to be produced,

created, or compiled. The term does not

include computer data bases.

(3) Data, as used in this clause, means

recorded information, regardless of form or

the media on which it may be recorded. The

term includes technical data and computer

software.

(4) Limited rights data, as used in this

clause, means data, other than computer

software, developed at private expense that

embody trade secrets or are commercial or

financial and confidential or privileged. The

Government’s rights to use, duplicate, or

disclose limited rights data are as set forth in

the Limited Rights Notice of paragraph (g)(2)

if included in this clause.

(5) Restricted computer software, as used

in this clause, means computer software

developed at private expense and that is a

trade secret; is commercial or financial and

is confidential or privileged; or is published

copyrighted computer software, including

minor modifications of any such computer

software. The Government’s rights to use,

duplicate, or disclose Restricted Computer

Software are as set forth in the Restricted

Rights Notice of subparagraph (g)(3) if

included in this clause.

(6) Technical data, as used in this clause,

means recorded data, regardless of form or

characteristic, that are of a scientific or

technical nature. Technical data does not

include computer software, but does include

manuals and instructional materials and

technical data formatted as a computer data

base. Technical data does not include data

incidental to the administration of this

contract, such as financial, administrative,

cost and pricing, or management information.

(7) Unlimited rights, as used in this clause,

means the rights of the Government to use,

disclose, reproduce, prepare derivative

works, distribute copies to the public,

including by electronic means, and perform

publicly and display publicly, in any

manner, including by electronic means, and

for any purpose whatsoever, and to have or

permit others to do so.

* * * * *

(d)(3) The Contractor agrees not to

establish claim to copyright in computer

software first produced in the performance of

this contract without prior written

permission of the patent counsel assisting the

contracting activity. When such permission

is granted, the patent counsel shall specify

appropriate terms, conditions, and

submission requirements to assure

utilization, dissemination, and

commercialization of the data. The

Contractor, when requested, shall promptly

deliver to patent counsel a duly executed and

approved instrument fully confirmatory of all

rights to which the Government is entitled.

(2) However, rights in data in these

specific situations will be treated as

described, where the contract is—

(i) For the production of special works

of the type set forth in FAR 27.405(a),

but the clause at FAR 52.227–14, Rights

in Data-General, shall be included in the

contract and made applicable to data

other than special works, as appropriate

(See paragraph (i) of FAR 27.409);

(ii) For the acquisition of existing data

works, as described in FAR 27.405(b)

(See paragraph (j) of FAR 27.409);

(iii) To be performed outside the

United States, its possessions, and

Puerto Rico, in which case agencies may

prescribe different clauses (See

paragraph (n) of FAR 27.409);

(iv) For architect-engineer services or

construction work, in which case

contracting officers shall utilize the

clause at FAR 52.227–17, Rights in DataSpecial Works;

(v) A Small Business Innovation

Research contract (See paragraph (l) of

FAR 27.409);

(vi) For management and operating of

a DOE facility or the production of data

necessary for the management or

operation of a DOE facility (See

970.2705); or

(vii) Awarded pursuant to a statute

expressly providing authority for the

protection of data first produced

thereunder from disclosure or

dissemination. (See 927.404–70).

(h) The contracting officer shall insert

the clause at FAR 52.227–16, Additional

Data Requirements, in solicitations and

contracts involving experimental,

developmental, research, or

demonstration work (other than basic or

applied research to be performed solely

by a university or college where the

contract amount will be $500,000 or

less) unless all the requirements for data

are believed to be known at the time of

contracting and specified in the
15144 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules

contract. See FAR 27.406(b). This clause

may also be used in other contracts

when considered appropriate.

* * * * *

(s) Contracting officers shall

incorporate the solicitation provision at

FAR 52.227–23, Rights to Proposal Data

(Technical), in all requests for

proposals.

(t) Contracting officers shall include

the solicitation provision at 952.227–84

in all solicitations involving research,

development, or demonstration work.

Subpart 927.70 [Removed and Reserved]

15. Subpart 927.70 (Secs. 927.7000

through 927.7005) is removed and

reserved.

PART 952—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

16. The authority citation for Part 952

continues to read as follows:

Authority: 42 U.S.C. 7254; 40 U.S.C.

486(c).

§ 952.227–13 [Amended]

17. Subsection 952.227–13 is

amended in paragraph (a) of the clause

by inserting the sentence ‘‘See 10 CFR

part 784.’’ at the end of the definition of

‘‘DOE patent waiver regulations’’ and in

paragraph (c)(1)(ii) of the clause by

inserting ‘‘(10 CFR part 784)’’ after the

phrase ‘‘patent waiver regulations’’.

18. Subsection 952.227–14 of part 952

is added to read as follows:

952.227–14 Rights in data—general. (DOE

coverage alternates VI and VII)

Alternate VI (XXX 1997)

As prescribed at 48 CFR 927.404(l) insert

Alternate VI to require the contractor to

license data regarded as limited rights data or

restricted computer software to DOE and

third parties at reasonable royalties upon

request by the Department of Energy.

(j) Contractor Licensing. Except as may be

otherwise specified in this contract as data

not subject to this paragraph, the contractor

agrees that upon written application by DOE,

it will grant to the Government and

responsible third parties, for purposes of

practicing a subject of this contract, a

nonexclusive license in any limited rights

data or restricted rights software on terms

and conditions reasonable under the

circumstances including appropriate

provisions for confidentiality; provided,

however, the contractor shall not be obliged

to license any such data if the contractor

demonstrates to the satisfaction of the

Secretary of Energy or designee that:

(1) Such data are not essential to the

manufacture or practice of hardware

designed or fabricated, or processes

developed, under this contract;

(2) Such data, in the form of results

obtained by their use, have a commercially

competitive alternate available or readily

introducible from one or more other sources;

(3) Such data, in the form of results

obtained by their use, are being supplied by

the contractor or its licensees in sufficient

quantity and at reasonable prices to satisfy

market needs, or the contractor or its

licensees have taken effective steps or within

a reasonable time are expected to take

effective steps to so supply such data in the

form of results obtained by their use; or

(4) Such data, in the form of results

obtained by their use, can be furnished by

another firm skilled in the art of

manufacturing items or performing processes

of the same general type and character

necessary to achieve the contract results.

(End of Alternate)

Alternate VII (XXX 1997)

As prescribed in 48 CFR 927.404(m) insert

Alternate VII to limit the contractor’s use of

DOE restricted data.

Insert the parenthetical phrase ‘‘(except

Restricted Data in category C–24, 10 CFR 725,

in which DOE has reserved the right to

receive reasonable compensation for the use

of its inventions and discoveries, including

related data and technology).’’ after the

phrase ‘‘data first produced or specifically

used by the Contractor in the performance of

this contract’’ in paragraph (b)(2)(i) of the

clause at FAR 52.227–14.

(End of Alternate)

952.227–73 through 952.227–83

[Removed]

19. In part 952, subsections 952.227–

73, 952.227–75, 952.227–76, 952.227–

77, 952.227–78, 952.227–79, 952.227–

80, 952.227–81, 952.227–82, and

952.227–83 are removed.

20. Subsection 952.227–84 is revised

to read as follows:

952.227–84 Notice of right to request

patent waiver.

Include this provision in all

appropriate solicitations in accordance

with 48 CFR 927.409(t).

Right To Request Patent Waiver (XXX 1997)

Offerors have the right to request a waiver

of all or any part of the rights of the United

States in inventions conceived or first

actually reduced to practice in performance

of the contract that may be awarded as a

result of this solicitation, in advance of or

within 30 days after the effective date of

contracting. Even where such advance waiver

is not requested or the request is denied, the

contractor will have a continuing right under

the contract to request a waiver of the rights

of the United States in identified inventions,

i.e., individual inventions conceived or first

actually reduced to practice in performance

of the contract. Domestic small businesses

and domestic nonprofit organizations

normally will receive the patent rights clause

at 952.227–13 which permits the contractor

to retain title to such inventions, except

under contracts for management or operation

of a Government-owned research and

development facility or under contracts

involving exceptional circumstances or

intelligence activities. Therefore, small

businesses and nonprofit organizations

normally need not request a waiver. See the

patent rights clause in the draft contract in

this solicitation. See DOE’s patent waiver

regulations at 10 CFR part 784.

(End of Provision)

PART 970—DOE MANAGEMENT AND

OPERATING CONTRACTS

21. The authority citation for Part 970

continues to read:

Authority: Sec. 161 of the Atomic Energy

Act of 1954 (42 U.S.C. 2201), sec. 644 of the

Department of Energy Organization Act,

Pub. L. 95–91 (42 U.S.C. 7254).

22. Section 970.2705 is revised to read

as follows:

970.2705 Rights in Data—General.

(a) Rights in data relating to the

performance of the contract and to all

facilities are significant in assuring

continuity of the management and

operation of DOE facilities. It is crucial

in assuring DOE’s continuing ability to

perform its statutory missions that DOE

obtain rights to all data produced or

specifically used by its management and

operating contractors and their

subcontractors. In order to obtain the

necessary rights in technical data, DOE

contracting officers shall assure that

management and operating contracts

contain either the Rights in Data clause

at 48 CFR 970.5204–XX or the clause at

48 CFR 970.5204–YY. Selection of the

appropriate clause is dependent upon

whether technology transfer is a mission

of the management and operating

contract. If technology transfer is not a

mission of the management and

operating contractor, the clause at 48

CFR 970.5204–XX will be used. In those

instances in which technology transfer

is a mission, the clause at 48 CFR

970.5204–YY will be used.

(b) Employees of the management and

operating contractor may not be used to

assist in the preparation of a proposal or

bid for the performance of services,

which are similar or related to those

being performed under the contract, by

the contractor or its parent or affiliate

organization for commercial customers

unless the employee has been separated

from work under the DOE contract for

such period as the Head of the

Contracting Activity or designee shall

have directed.

(c) Management and operating

contractors shall not use data acquired

from other Government agencies or

private entities in the performance of

their contracts for the private purposes

of the contractor unless the agency or

entity authorizes such use.

23. Revise Section 970.2706 as

follows:
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules 15145

970.2706 Rights in Technical Data—

Procedures.

(a) The clauses at 48 CFR 970.5204–

XX and 48 CFR 970.5204–YY both

provide generally for Government

ownership and for unlimited rights in

the Government for all data first

produced in the performance of the

contract and unlimited rights in data

specifically used in the performance of

the contract. Both clauses provide that,

subject to patent, security, and other

provisions of the contract, the contractor

may use contract data for its private

purposes. The contractor, under either

clause, must treat any data furnished by

DOE or third parties in accordance with

any restrictive legends contained

therein.

(b) Since both clauses secure access to

and, if requested, delivery of technical

data used in the performance of the

contract, there is generally no need to

use the Additional Technical Data

Requirements clause at FAR 52.227–16

in the management and operating

contract.

(c)(1) Paragraph (d) of the clause at 48

CFR 970.5204–XX and paragraph (f) of

the clause at 48 CFR 970.5204–YY

provide for the inclusion of the Rights

in Technical Data-General clause at FAR

52.227–14, with Alternates I and V, and,

as appropriate and with DOE’s prior

approval, Alternates II, III, and IV, and

the Additional Technical Data

Requirements clause at FAR 52.227–16

in all subcontracts for research,

development, or demonstration and all

other subcontracts having special

requirements for the production or

delivery of data, except in those

subcontracts, including subcontracts for

related support services, involving the

design or operation of any plants or

facilities or specially designed

equipment for such plants or facilities

that are managed or operated by the

contractor under its contract with DOE.

In those latter subcontracts, the

management and operating contractor

shall include the Rights in DataFacilities clause at 48 CFR 970.5204–

XX.

(2) Where, however, a subcontract is

to be awarded by the management and

operating contractor in connection with

a program, as discussed at 927.404–70,

which provides statutory authority to

protect from public disclosure, data first

produced under contracts awarded

pursuant to the program, contracting

officers shall ensure that the M&O

contractor includes in that subcontract

the rights in data clause provided by

DOE Patent Counsel, consistent with

any accompanying guidance.

(d) Paragraphs (e) and (f) of the clause

at 48 CFR 970.5204–XX and paragraphs

(g) and (h) of the clause at 48 CFR

970.5204–YY provide for the

contractor’s granting a nonexclusive

license in any limited rights data and

restricted computer software

specifically used in performance of the

contract.

(e) The Rights in Data-Technology

Transfer clause at 48 CFR 970.5204–YY

differs from the clause at 48 CFR

970.5204–XX in the context of its more

detailed treatment of copyright. In

management and operating contracts

that have technology transfer as a

mission, the right to assert copyright in

data first produced under the contract

will be a valuable right, and

commercialization of such data,

including computer software, will assist

the M&O contractor in advancing the

technology transfer mission of the

contract.

(f) Contracting officers should consult

with patent counsel to assure that

requirements regarding royalties and

conflicts of interest associated with

asserting copyright in data first

produced under the contract are

appropriately addressed in the

Technology Transfer Mission clause of

the management and operating contract.

Where it is not otherwise clear which

DOE contractor funded the development

of a computer software package, such as

where the development was funded out

of a contractor’s overhead account, the

DOE program which was the primary

source of funding for the entire contract

is deemed to have administrative

responsibility. This issue may arise,

among others, in the decision whether

to grant the contractor permission to

assert copyright. See paragraph (e) of the

Rights in Data-Technology Transfer

clause at 970.5204–YY.

(g) In management and operating

contracts involving access to DOEowned Category C–24 restricted data, as

set forth in 10 CFR part 725, DOE has

reserved the right to receive reasonable

compensation for the use of its

inventions and discoveries, including

its related restricted data and

technology. Alternate I to each clause

shall be used where access to Category

C–24 restricted data is contemplated in

the performance of a contract.

24. Section 970.2707 is added to read

as follows:

970.2707 Rights in Data Clauses.

(a) Contracting officers shall insert the

clause at 48 CFR 970.5204–XX, Rights

in Data-Facilities, in management and

operating contracts which do not

contain the clause at 48 CFR 970.5204–

40, Technology Transfer Mission.

(b) Contracting officers shall insert the

clause at 970.5204–YY, Rights in DataTechnology Transfer, in management

and operating contracts which contain

the clause at 970.5204–40, Technology

Transfer Mission.

(c) In accordance with 48 CFR

970.2706(f), in contracts where access to

Category C–24 restricted data, as set

forth in 10 CFR part 725, is to be

provided to contractors, Contracting

Officers shall incorporate Alternate I of

the appropriate rights in data clause

prescribed in paragraph (a) or (b) of this

section.

22. Subsection 970.5204–XX is added

to read as follows:

970.5204–XX Rights in Data-Facilities.

Insert the following clause in the

management and operating contracts in

accordance with 48 CFR 970.2707.

Rights in Data-Facilities (XXX 1997)

(a) Definitions.

(1) Computer data bases, as used in this

clause, means a collection of data in a form

capable of, and for the purpose of, being

stored in, processed, and operated on by a

computer. The term does not include

computer software.

(2) Computer software, as used in this

clause, means (i) computer programs which

are data comprising a series of instructions,

rules, routines, or statements, regardless of

the media in which recorded, that allow or

cause a computer to perform a specific

operation or series of operations and (ii) data

comprising source code listings, design

details, algorithms, processes, flow charts,

formulae, and related material that would

enable the computer program to be produced,

created, or compiled. The term does not

include computer data bases.

(3) Data, as used in this clause, means

recorded information, regardless of form or

the media on which it may be recorded. The

term includes technical data and computer

software.

(4) Limited rights data, as used in this

clause, means data, other than computer

software, developed at private expense that

embody trade secrets or are commercial or

financial and confidential or privileged. The

Government’s rights to use, duplicate, or

disclose limited rights data are as set forth in

the Limited Rights Notice of subparagraph (e)

of this clause.

(5) Restricted computer software, as used

in this clause, means computer software

developed at private expense and that is a

trade secret; is commercial or financial and

is confidential or privileged; or is published

copyrighted computer software, including

minor modifications of any such computer

software. The Government’s rights to use,

duplicate, or disclose Restricted Computer

Software are as set forth in the Restricted

Rights Notice of paragraph (f) of this clause.

(6) Technical data, as used in this clause,

means recorded data, regardless of form or

characteristic, that are of a scientific or

technical nature. Technical data does not

include computer software, but does include

manuals and instructional materials and

technical data formatted as a computer data
15146 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules

base. Technical data does not include data

incidental to the administration of this

contract, such as financial, administrative,

cost and pricing, or management information.

(7) Unlimited rights, as used in this clause,

means the rights of the Government to use,

disclose, reproduce, prepare derivative

works, distribute copies to the public,

including by electronic means, and perform

publicly and display publicly, in any

manner, including by electronic means, and

for any purpose whatsoever, and to have or

permit others to do so.

(b) Allocation of Rights.

(1) The Government shall have:

(i) Ownership of all technical data and

computer software first produced in the

performance of this Contract;

(ii) Unlimited rights in technical data and

computer software specifically used in the

performance of this Contract, except as

provided herein regarding copyright;

(iii) The right to inspect technical data and

computer software first produced or

specifically used in the performance of this

Contract at all reasonable times. The

Contractor shall make available all necessary

facilities to allow DOE personnel to perform

such inspection;

(iv) The right to have all technical data and

computer software first produced or

specifically used in the performance of this

Contract delivered to the Government or

otherwise disposed of by the Contractor,

either as the Contracting Officer may from

time to time direct during the progress of the

work or in any event as the Contracting

Officer shall direct upon completion or

termination of this Contract. The Contractor

agrees to leave a copy of such data at the

facility or plant to which such data relate,

and to make available for access or to deliver

to the Government such data upon request by

the Contracting Officer. If such data are

limited rights data or restricted computer

software, the rights of the Government in

such data shall be governed solely by the

provisions of paragraph (e) of this clause

(‘‘Rights in Limited Rights Data’’) or

paragraph (f) of this clause (‘‘Rights in

Restricted Computer Software’’);

(v) The right to remove, cancel, correct, or

ignore any markings not authorized by the

terms of this Contract on any data furnished

hereunder if, in response to a written inquiry

by DOE concerning the propriety of the

markings, the Contractor fails to respond

thereto within 60 days or fails to substantiate

the propriety of the markings. In either case

DOE will notify the Contractor of the action

taken.

(2) The Contractor shall have:

(i) The right to withhold limited rights data

and restricted computer software in

accordance with the provisions of this clause;

(ii) The right to use for its private purposes,

subject to patent, security or other provisions

of this Contract, data it first produces in the

performance of this Contract, except for data

in DOE’s Uranium Enrichment Technology,

including diffusion, centrifuge, and atomic

vapor laser isotope separation, provided the

data requirements of this Contract have been

met as of the date of the private use of such

data; and

(3) The Contractor agrees that for limited

rights data or restricted computer software or

other technical, business or financial data in

the form of recorded information which it

receives from, or is given access to by, DOE

or a third party, including a DOE Contractor

or subcontractor, and for technical data or

computer software it first produces under

this Contract which is authorized to be

marked by DOE, the Contractor shall treat

such data in accordance with any restrictive

legend contained thereon.

(c) Copyrighted Material.

(1) The Contractor shall not, without prior

written authorization of the Patent Counsel,

establish a claim to statutory copyright in any

technical data first produced in the

performance of this contract. To the extent

such authorization is granted, the

Government reserves for itself and others

acting on its behalf, a royalty-free,

nonexclusive, irrevocable, world-wide

license for Governmental purposes to

publish, distribute, translate, duplicate,

exhibit, and perform any such data

copyrighted by the Contractor.

(2) The Contractor agrees not to include in

the technical data delivered under the

contract any material copyrighted by the

Contractor and not to knowingly include any

material copyrighted by others without first

granting or obtaining at no cost a license

therein for the benefit of the Government of

the same scope as set forth in paragraph (c)(1)

of this clause. If the Contractor believes that

such copyrighted material for which the

license cannot be obtained must be included

in the technical data to be delivered, rather

than merely incorporated therein by

reference, the Contractor shall obtain the

written authorization of the Contracting

Officer to include such 08347material in the

technical data prior to its delivery.

(d) Subcontracting.

(1) Unless otherwise directed by the

Contracting Officer, the Contractor agrees to

use in subcontracts in which technical data

is expected to be produced or in subcontracts

for supplies that contain a requirement for

production or delivery of data in accordance

with the policy and procedures of 48 CFR

(FAR) subpart 27.4 as supplemented by 48

CFR (DEAR) 927.401 through 927.409, the

clause entitled ‘‘Rights in Data’’—General at

48 CFR 52.227–14 with the paragraph (a) of

this clause substituted for paragraph (a) of

that clause and including Alternates I & V,

including its use with Alternate II through

Alternate IV as may be required or authorized

pursuant to FAR 27.409. Prior to using

Alternate II, Alternate III, or Alternate IV, the

Contractor shall consult with the DOE Patent

Counsel.

(2) It is the responsibility of the Contractor

to obtain from its Subcontractors technical

data and rights therein, on behalf of the

Government, necessary to fulfill the

Contractor’s obligations to the Government

with respect to such data. In the event of

refusal by a Subcontractor to accept a clause

affording the Government such rights, the

Contractor shall:

(i) Promptly submit written notice to the

Contracting Officer setting forth reasons or

the Subcontractor’s refusal and other

pertinent information which may expedite

disposition of the matter, and

(ii) Not proceed with the subcontract

without the written authorization of the

Contracting Officer.

(e) Rights in Limited Rights Data.

Except as may be otherwise specified in

this Contract as data which are not subject to

this paragraph, the Contractor agrees to and

does hereby grant to the Government an

irrevocable, nonexclusive, paid-up license by

or for the Government, in any limited rights

data of the Contractor specifically used in the

performance of this Contract, provided,

however, that to the extent that any limited

rights data when furnished or delivered is

specifically identified by the Contractor at

the time of initial delivery to the Government

or a representative of the Government, such

data shall not be used within or outside the

Government except as provided in the

‘‘Limited Rights Notice’’ set forth below. All

such limited rights data shall be marked with

the following ‘‘Limited Rights Notice’’:

Limited Rights Notice

These data contain ‘‘limited rights data,’’

furnished under Contract No. llll with

the United States Department of Energy

which may be duplicated and used by the

Government with the express limitations that

the ‘‘limited rights data’’ may not be

disclosed outside the Government or be used

for purposes of manufacture without prior

permission of the Contractor, except that

further disclosure or use may be made solely

for the following purposes:

(a) Use (except for manufacture) by support

services contractors within the scope of their

contracts;

(b) This ‘‘limited rights data’’ may be

disclosed for evaluation purposes under the

restriction that the ‘‘limited rights data’’ be

retained in confidence and not be further

disclosed;

(c) This ‘‘limited rights data’’ may be

disclosed to other Contractors participating

in the Government’s program of which this

Contract is a part for information or use

(except for manufacture) in connection with

the work performed under their contracts and

under the restriction that the ‘‘limited rights

data’’ be retained in confidence and not be

further disclosed; and

(d) This ‘‘limited rights data’’ may be used

by the Government or others on its behalf for

emergency repair or overhaul work under the

restriction that the ‘‘limited rights data’’ be

retained in confidence and not be further

disclosed. This Notice shall be marked on

any reproduction of this data in whole or in

part.

(e) Release to a foreign government, or

instrumentality thereof, as the interests of the

United States Government may require, for

information or evaluation, or for emergency

repair or overhaul work by such government.

(End of Notice)

(f) Rights in Restricted Computer Software.

(1) Except as may be otherwise specified in

this Contract as data which are not subject to

this paragraph, the Contractor agrees to and

does hereby grant to the Government an

irrevocable, nonexclusive, paid-up, license

by or for the Government, in any restricted

computer software of the Contractor

specifically used in the performance of this

Contract, provided, however, that to the
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules 15147

extent that any restricted computer software

when furnished or delivered is specifically

identified by the Contractor at the time of

initial delivery to the Government or a

representative of the Government, such data

shall not be used within or outside the

Government except as provided in the

‘‘Restricted Rights Notice’’ set forth below.

All such restricted computer software shall

be marked with the following ‘‘Restricted

Rights Notice’’:

Restricted Rights Notice—Long Form

(a) This computer software is submitted

with restricted rights under Government

Contract No. llll. It may not be used,

reproduced, or disclosed by the Government

except as provided in paragraph (b) of this

notice.

(b) This computer software may be:

(1) Used, or copied for use, in or with the

computer or computers for which it was

acquired, including use at any Government

installation to which such computer or

computers may be transferred;

(2) Used, copied for use, in a backup or

replacement computer if any computer for

which it was acquired is inoperative or is

replaced;

(3) Reproduced for safekeeping (archives)

or backup purposes;

(4) Modified, adapted, or combined with

other computer software, provided that only

the portions of the derivative software

consisting of the restricted computer software

are to be made subject to the same restricted

rights; and

(5) Disclosed to and reproduced for use by

contractors under a service contract (of the

type defined in FAR 37.101) in accordance

with subparagraphs (b) (1) through (4) of this

Notice, provided the Government makes such

disclosure or reproduction subject to these

restricted rights.

(c) Notwithstanding the foregoing, if this

computer software has been published under

copyright, it is licensed to the Government,

without disclosure prohibitions, with the

rights set forth in the restricted rights notice

above.

(d) This Notice shall be marked on any

reproduction of this computer software, in

whole or in part.

(End of Notice)

(2) Where it is impractical to include the

Restricted Rights Notice on restricted

computer software, the following short-form

Notice may be used in lieu thereof:

Restricted Rights Notice—Short Form

Use, reproduction, or disclosure is subject

to restrictions set forth in the Long Form

Notice of Contract No. llll with (name

of Contractor ).

(End of Notice)

(3) If the software is embedded, or if it is

commercially impractical to mark it with

human readable text, then the symbol R and

the clause date (mo/yr) in brackets or a box,

a [R-mo/yr], may be used. This will be read

to mean restricted computer software, subject

to the rights of the Government as described

in the Long Form Notice, in effect as of the

date indicated next to the symbol. The

symbol shall not be used to mark human

readable material. In the event this Contract

contains any variation to the rights in the

Long Form Notice, then the contract number

must also be cited.

(4) If restricted rights computer software is

delivered with the copyright notice of 17

U.S.C. 401, the software will be presumed to

be published copyrighted computer software

licensed to the Government without

disclosure prohibitions, unlimited rights,

unless the Contractor includes the following

statement with such copyright notice

‘‘Unpublished—rights reserved under the

Copyright Laws of the United States.’’

(g) Relationship to patents.

Nothing contained in this clause creates or

is intended to imply a license to the

Government in any patent or is intended to

be construed as affecting the scope of any

licenses or other rights otherwise granted to

the Government under any patent.

(End of Clause)

Alternate I (XXX 1997)

In accordance with 48 CFR 970.2706(f),

insert the parenthetical phrase ‘‘(except

Restricted Data in category C–24, 10 CFR part

725, in which DOE has reserved the right to

receive reasonable compensation for the use

of its inventions and discoveries, including

related data and technology)’’ after ‘‘technical

data’’ in paragraph (b)(2)(ii) of the clause at

48 CFR 970.5204–XX, as appropriate.

(End of Alternate)

26. Subsection 970.5204–YY is added

to read as follows:

970.5204–YY Rights in Data-Technology

Transfer.

Insert the following clause in

management and operating contracts in

accordance with 48 CFR 970.2707.

Rights in Data-Technology Transfer (XXX

1997)

(a) Definitions.

(1) Computer data bases, as used in this

clause, means a collection of data in a form

capable of, and for the purpose of, being

stored in, processed, and operated on by a

computer. The term does not include

computer software.

(2) Computer software, as used in this

clause, means (i) computer programs which

are data comprising a series of instructions,

rules, routines, or statements, regardless of

the media in which recorded, that allow or

cause a computer to perform a specific

operation or series of operations and (ii) data

comprising source code listings, design

details, algorithms, processes, flow charts,

formulae, and related material that would

enable the computer program to be produced,

created, or compiled. The term does not

include computer data bases.

(3) Data, as used in this clause, means

recorded information, regardless of form or

the media on which it may be recorded. The

term includes technical data and computer

software.

(4) Limited rights data, as used in this

clause, means data, other than computer

software, developed at private expense that

embody trade secrets or are commercial or

financial and confidential or privileged. The

Government’s rights to use, duplicate, or

disclose limited rights data are as set forth in

the Limited Rights Notice of paragraph (g) of

this clause.

(5) Restricted computer software, as used

in this clause, means computer software

developed at private expense and that is a

trade secret; is commercial or financial and

is confidential or privileged; or is published

copyrighted computer software, including

minor modifications of any such computer

software. The Government’s rights to use,

duplicate, or disclose Restricted Computer

Software are as set forth in the Restricted

Rights Notice of subparagraph (h) of this

clause.

(6) Technical data, as used in this clause,

means recorded data, regardless of form or

characteristic, that are of a scientific or

technical nature. Technical data does not

include computer software, but does include

manuals and instructional materials and

technical data formatted as a computer data

base. Technical data does not include data

incidental to the administration of this

contract, such as financial, administrative,

cost and pricing, or management information.

(7) Unlimited rights, as used in this clause,

means the rights of the Government to use,

disclose, reproduce, prepare derivative

works, distribute copies to the public,

including by electronic means, and perform

publicly and display publicly, in any

manner, including by electronic means, and

for any purpose whatsoever, and to have or

permit others to do so.

(b) Allocation of Rights.

(1) The Government shall have:

(i) Ownership of all technical data and

computer software first produced in the

performance of this Contract;

(ii) Unlimited rights in technical data and

computer software specifically used in the

performance of this Contract, except as

provided herein regarding copyright, subject

to the withholding provisions for protected

CRADA information in accordance with

Technology Transfer actions under this

Contract;

(iii) The right to inspect technical data and

computer software first produced or

specifically used in the performance of this

Contract at all reasonable times. The

Contractor shall make available all necessary

facilities to allow DOE personnel to perform

such inspection;

(iv) The right to have all technical data and

computer software first produced or

specifically used in the performance of this

Contract delivered to the Government or

otherwise disposed of by the Contractor,

either as the Contracting Officer may from

time to time direct during the progress of the

work or in any event as the Contracting

Officer shall direct upon completion or

termination of this Contract. The Contractor

agrees to leave a copy of such data at the

facility or plant to which such data relate,

and to make available for access or to deliver

to the Government such data upon request by

the Contracting Officer. If such data are

limited rights data or restricted computer

software the rights of the Government in such

data shall be governed solely by the

provisions of paragraph (e) of this clause

(‘‘Rights in Limited Rights Data’’) or
15148 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules

paragraph (f) of this clause (‘‘Rights in

Restricted Computer Software’’);

(v) The right to remove, cancel, correct, or

ignore any markings not authorized by the

terms of this Contract on any data furnished

hereunder if, in response to a written inquiry

by DOE concerning the propriety of the

markings, the Contractor fails to respond

thereto within 60 days or fails to substantiate

the propriety of the markings. In either case

DOE will notify the Contractor of the action

taken.

(2) The Contractor shall have:

(i) The right to withhold limited rights data

and restricted computer software in

accordance with the provisions of this clause;

(ii) The right to use for its private purposes,

subject to patent, security or other provisions

of this Contract, data it first produces in the

performance of this Contract, except for data

in DOE’s Uranium Enrichment Technology,

including diffusion, centrifuge, and atomic

vapor laser isotope separation, provided the

data requirements of this Contract have been

met as of the date of the private use of such

data; and

(iii) The right to assert copyright subsisting

in scientific and technical articles as

provided in paragraph (d) of this clause and

the right to request permission to assert

copyright subsisting in works other than

scientific and technical articles as provided

in paragraph (e) of this clause.

(3) The Contractor agrees that for limited

rights data or restricted computer software or

other technical, business or financial data in

the form of recorded information which it

receives from, or is given access to by, DOE

or a third party, including a DOE Contractor

or subcontractor, and for technical data or

computer software it first produces under

this Contract which is authorized to be

marked by DOE, the Contractor shall treat

such data in accordance with any restrictive

legend contained thereon.

(c) Copyright (General).

(1) The Contractor agrees not to mark,

register, or otherwise assert copyright in any

data in a published or unpublished work,

other than as set forth in paragraphs (d) and

(e) of this clause.

(2) Except for material to which the

Contractor has obtained the right to assert

copyright in accordance with either

paragraph (d) or (e) of this clause, the

Contractor agrees not to include in the data

delivered under this Contract any material

copyrighted by the Contractor and not to

knowingly include any material copyrighted

by others without first granting or obtaining

at no cost a license therein for the benefit of

the Government of the same scope as set

forth in paragraph (d) of this clause below.

If the Contractor believes that such

copyrighted material for which the license

cannot be obtained must be included in the

data to be delivered, rather than merely

incorporated therein by reference, the

Contractor shall obtain the written

authorization of the Contracting Officer to

include such material in the data prior to its

delivery.

(d) Copyrighted works (scientific and

technical articles).

(1) The Contractor shall have the right to

assert, without prior approval of the

Contracting Officer, copyright subsisting in

scientific and technical articles composed

under this contract or based on or containing

data first produced in the performance of this

Contract, and published in academic,

technical or professional journals, symposia,

proceedings, or similar works. When

assertion of copyright is made, the Contractor

shall affix the applicable copyright notice of

17 U.S.C. 401 or 402 and acknowledgement

of Government sponsorship (including

contract number) on the data when such data

are delivered to the Government as well as

when the data are published or deposited for

registration as a published work in the U.S.

Copyright Office. The Contractor grants to the

Government, and others acting on its behalf,

a paid-up, nonexclusive, irrevocable

worldwide license in such copyrighted data

to reproduce, prepare derivative works,

distribute copies to the public, and perform

publicly and display publicly, by or on

behalf of the Government.

(2) The contractor shall mark each

scientific or technical article first produced

or composed under this contract and

submitted for journal publication with a

notice, similar in all material respects to the

following, on the front reflecting the

Government’s non-exclusive, royalty free,

world-wide license in the copyright.

This manuscript has been authored by

[insert the name of the contractor] under

contract no. [insert the contract number] with

the U.S. Department of Energy. The United

States Government retains and the publisher,

by accepting the article for publication,

acknowledges that the United States

Government retains a non-exclusive, royaltyfree, world-wide license to publish or

reproduce the published form of this

manuscript, or allow other to do so, for

United States Government purposes.

(End of notice)

(3) The title to the original of unclassified

graduate theses and the original of related

unclassified scientific papers shall vest in the

author thereof, subject to the right of DOE to

retain duplicates of such documents and to

use such documents for any purpose

whatsoever without any claim on the part of

the author or the contractor for additional

compensation.

(e) Copyrighted works (other than scientific

and technical articles).

The Contractor may obtain permission to

assert copyright subsisting in technical data

and computer software first produced by the

Contractor in performance of this Contract,

where the Contractor can show that

commercialization would be enhanced by

such copyright protection, subject to the

following:

(1) Contractor Request to Assert Copyright.

(i) For data other than scientific and

technical articles, the Contractor shall submit

in writing to Patent Counsel its request to

assert copyright in data first produced in the

performance of this Contract pursuant to this

clause. Each request by the Contractor must

include:

(A) the identity of the data (including any

computer program) for which the Contractor

requests permission to assert copyright, as

well as an abstract which is descriptive of the

data and is suitable for dissemination

purposes, (B) the program under which it

was funded, (C) whether the data is subject

to an international treaty or agreement, (D)

whether the data is subject to export control,

(E) a statement that the Contractor plans to

commercialize the data in compliance with

the clause of this contract entitled

‘‘Technology Transfer Mission,’’ within five

(5) years after obtaining permission to assert

copyright, and (F) for data other than

computer software, a statement explaining

why the assertion of copyright is necessary

to enhance commercialization. For data that

is developed using other funding sources in

addition to DOE funding, the permission to

assert copyright in accordance with this

clause must also be obtained by the

Contractor from all other funding sources

prior to the Contractor’s request to Patent

Counsel. The request shall include the

Contractor’s certification or other

documentation acceptable to Patent Counsel

demonstrating such permission has been

obtained.

(ii) Permission for the Contractor to assert

copyright in excepted categories of data as

determined by DOE will be expressly

withheld. Such excepted categories include

data whose release (A) would be detrimental

to national security, i.e., involve classified

information or data or sensitive information

under Section 148 of the Atomic Energy Act

of 1954, as amended, or are subject to export

control for nonproliferation and other

nuclear-related national security purposes,

(B) would not enhance the appropriate

transfer or dissemination and

commercialization of such data, (C) would

have a negative impact on U.S. industrial

competitiveness, (D) would prevent DOE

from meeting its obligations under treaties

and international agreements, or (E) would be

detrimental to one or more of DOE’s

programs. Additional excepted categories

may be added by the Assistant General

Counsel for Intellectual Property where data

are determined to be subject to export

controls. In addition, notwithstanding any

other provision of this Contract, all data

developed with Naval Reactors’ funding and

those data that are classified fall within

excepted categories. Additionally, the rights

of the Contractor in data are subject to the

disposition of data rights in the treaties and

international agreements identified under

this Contract as well as those additional

treaties and international agreements which

DOE may from time to time identify by

unilateral amendment to the Contract; such

amendment listing added treaties and

international agreements is effective only for

data which is developed after the date such

treaty or international agreement is added to

this Contract. Also, the Contractor will not be

permitted to assert copyright in data in the

form of various technical reports generated

by the Contractor under the Contract without

first obtaining the advanced written

permission of the Contracting Officer.

(2) DOE Review and Response to

Contractor’s Request. The Patent Counsel

shall use its best efforts to respond in writing

within 90 days of receipt of a complete

request by the Contractor to assert copyright

in technical data and computer software
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules 15149

pursuant to this clause. Such response shall

either give or withhold DOE’s permission for

the Contractor to assert copyright or advise

the Contractor that DOE needs additional

time to respond and the reasons therefor.

(3) Permission for Contractor to Assert

Copyright.

(i) For computer software, the Contractor

shall furnish to a DOE designated,

centralized software distribution and control

point, at the time permission to assert

copyright is given under paragraph (e)(2) of

this clause: (A) an abstract describing the

software suitable for publication, (B) the

source code for each software program, and

(C) the object code and at least the minimum

support documentation needed by a

technically competent user to understand

and use the software. The Patent Counsel, for

good cause shown by the Contractor, may

allow the minimum support documentation

to be delivered within 60 days after

permission to assert copyright is given or at

such time the minimum support

documentation becomes available. The

Contractor acknowledges that the DOE

designated software distribution and control

point may provide a technical description of

the software in an announcement identifying

its availability from the copyright holder.

(ii) Unless otherwise directed by the

Contracting Officer, for data other than

computer software to which the Contractor

has received permission to assert copyright

under paragraph (e)(2) of this clause above,

the Contractor shall within sixty (60) days of

obtaining such permission furnish to DOE’s

Office of Scientific and Technical

Information (OSTI) a copy of such data as

well as an abstract of the data suitable for

dissemination purposes. The Contractor

acknowledges that OSTI may provide an

abstract of the data in an announcement to

DOE, its contractors and to the public

identifying its availability from the copyright

holder.

(iii) For a period of five (5) years beginning

on the date the Contractor is given

permission to assert copyright in data, the

Contractor grants to the Government, and

others acting on its behalf, a paid-up,

nonexclusive, irrevocable worldwide license

in such copyrighted data to reproduce,

prepare derivative works and perform

publicly and display publicly, by or on

behalf of the Government. Subject to DOE

approval, the five-year period for assertion of

copyright is renewable for successive five

year periods. The DOE approval will be

based on the standard that the work is still

commercially available and the market

demand is being met.

(iv) After the authorized five (5) year

period, or successive five year period(s) for

assertion of copyright by the contractor as

described in paragraph (e)(3)(iii) of this

clause, or if, prior to the end of such

period(s), the Contractor abandons

commercialization activities pertaining to the

data to which the Contractor has been given

permission to assert copyright, the Contractor

grants to the Government, and others acting

on its behalf, a paid-up, nonexclusive,

irrevocable worldwide license in such

copyrighted data to reproduce, distribute

copies to the public, prepare derivative

works, perform publicly and display

publicly, and to permit others to do so.

(v) Whenever the Contractor asserts

copyright in data pursuant to this paragraph

(e), the Contractor shall affix the applicable

copyright notice of 17 U.S.C. 401 or 402 on

the copyrighted data and also an

acknowledgement of the Government

sponsorship and license rights of paragraphs

(e)(3) (iii) and (iv) of this clause. Such action

shall be taken when the data are delivered to

the Government, published, licensed or

deposited for registration as a published

work in the U.S Copyright Office. The

acknowledgement of Government

sponsorship and license rights shall be as

follows:

NOTICE: These data were produced under

Contract No.llll with the Department of

Energy. The Government is granted for itself

and others acting on its behalf a paid-up,

nonexclusive, irrevocable worldwide license

in this data to reproduce, prepare derivative

works, and perform publicly and display

publicly. Beginning five (5) years after (date

permission to assert copyright was obtained),

the Government is granted for itself and

others acting on its behalf a paid-up,

nonexclusive, irrevocable worldwide license

in this data to reproduce, prepare derivative

works, distribute copies to the public,

perform publicly and display publicly, and to

permit others to do so. The initial five year

period may have been extended for

successive periods of five years, thereby

allowing the contractor to assert its copyright

for that additional period. However, prior to

the expiration of the initial and any

successive five year period, the conditions

underlying the permission to assert copyright

might have been violated, denying the

contractor the right to assert the copyright.

NEITHER THE UNITED STATES NOR THE

UNITED STATES DEPARTMENT OF

ENERGY, NOR ANY OF THEIR

EMPLOYEES, MAKES ANY WARRANTY,

EXPRESS OR IMPLIED, OR ASSUMES ANY

LEGAL LIABILITY OR RESPONSIBILITY

FOR THE ACCURACY, COMPLETENESS,

OR USEFULNESS OF ANY INFORMATION,

APPARATUS, PRODUCT, OR PROCESS

DISCLOSED, OR REPRESENTS THAT ITS

USE WOULD NOT INFRINGE PRIVATELY

OWNED RIGHTS.

(End of Notice)

(vi) With respect to any data to which the

Contractor has received permission to assert

copyright, the DOE has the right, during the

5 year period or successive five year period

set forth in subparagraph (e)(1)(i) of this

clause, to request the Contractor to grant a

nonexclusive, partially exclusive or exclusive

license in any field of use to a responsible

applicant(s) upon terms that are reasonable

under the circumstances, and if the

Contractor refuses such request, to grant such

license itself, if the DOE determines that the

Contractor has not made a satisfactory

demonstration that either it or its licensee(s)

is actively pursuing commercialization of the

data as set forth in subparagraph (e)(1)(A) of

this clause. Before licensing under this

subparagraph (vi), DOE shall furnish the

Contractor a written request for the

Contractor to grant the stated license, and the

Contractor shall be allowed thirty (30) days

(or such longer period as may be authorized

by the Contracting Officer for good cause

shown in writing by the Contractor) after

such notice to show cause why the license

should not be granted. The Contractor shall

have the right to appeal the decision of the

DOE to grant the stated license to the

Invention Licensing Appeal Board as set

forth in 10 CFR 781.65—‘‘Appeals’’.

(vii) No costs shall be allowable for

maintenance of copyrighted data, primarily

for the benefit of the Contractor and/or a

licensee and which exceeds DOE Program

needs, except as expressly provided in

writing by the Contracting Officer. The

Contractor may use its net royalty income to

effect such maintenance costs.

(viii) At any time the Contractor abandons

commercialization activities for data for

which the Contractor has received

permission to assert copyright in accordance

with this clause, it shall advise OSTI and

Patent Counsel and upon request assign the

copyright to the Government so that the

Government can distribute the data to the

public.

(4) The following notice may be placed on

the software prior to any publication and

prior to the Contractor’s obtaining permission

from the Department of Energy to assert

copyright in the software pursuant to

paragraph (c)(3) of this section.

NOTICE

This program was prepared by [Insert the

Contractor’s name and the individual

author], hereinafter the Contractor, under

Contract [Insert the Contract Number] with

the Department of Energy (DOE). All rights in

the program are reserved by DOE on behalf

of the United States Government and the

Contractor as provided in the contract. You

are authorized to use this program for

Governmental purposes but it is not to be

released or distributed to the public. Neither

the Government nor the Contractor makes

any warranty, express or implied, or assumes

any liability or responsibility for the use of

this software. This notice including this

sentence must appear on any copies of this

program.

(End of Notice)

(f) Subcontracting.

(1) Unless otherwise directed by the

Contracting Officer, the Contractor agrees to

use in subcontracts in which technical data

is expected to be produced or in subcontracts

for supplies that contain a requirement for

production or delivery of data in accordance

with the policy and procedures of 48 CFR

(FAR) subpart 27.4 as supplemented by 48

CFR (DEAR) 927.401 through 927.409, the

clause entitled ‘‘Rights in Data—General’’ at

48 CFR 52.227–14 with the paragraph (a) of

this clause substituted for paragraph (a) of

that clause and including Alternates I & V,

including its use with Alternate II through

Alternate IV as may be required or authorized

pursuant to 48 CFR 27.409. Prior to using

Alternate II, Alternate III, or Alternate IV, the

Contractor shall consult with the DOE Patent

Counsel.

(2) It is the responsibility of the Contractor

to obtain from its Subcontractors technical

data and rights therein, on behalf of the

Government, necessary to fulfill the
15150 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Proposed Rules

Contractor’s obligations to the Government

with respect to such data. In the event of

refusal by a Subcontractor to accept a clause

affording the Government such rights, the

Contractor shall:

(i) Promptly submit written notice to the

Contracting Officer setting forth reasons or

the Subcontractor’s refusal and other

pertinent information which may expedite

disposition of the matter, and

(ii) Not proceed with the subcontract

without the written authorization of the

Contracting Officer.

(g) Rights in Limited Rights Data.

Except as may be otherwise specified in

this Contract as data which are not subject to

this paragraph, the Contractor agrees to and

does hereby grant to the Government an

irrevocable, nonexclusive, paid-up license by

or for the Government, in any limited rights

data of the Contractor specifically used in the

performance of this Contract, provided,

however, that to the extent that any limited

rights data when furnished or delivered is

specifically identified by the Contractor at

the time of initial delivery to the Government

or a representative of the Government, such

data shall not be used within or outside the

Government except as provided in the

‘‘Limited Rights Notice’’ set forth below. All

such limited rights data shall be marked with

the following ‘‘Limited Rights Notice’’:

Limited Rights Notice

These data contain ‘‘limited rights data,’’

furnished under Contract No. llll with

the United States Department of Energy

which may be duplicated and used by the

Government with the express limitations that

the ‘‘limited rights data’’ may not be

disclosed outside the Government or be used

for purposes of manufacture without prior

permission of the Contractor, except that

further disclosure or use may be made solely

for the following purposes:

(a) Use (except for manufacture) by support

services contractors within the scope of their

contracts;

(b) This ‘‘limited rights data’’ may be

disclosed for evaluation purposes under the

restriction that the ‘‘limited rights data’’ be

retained in confidence and not be further

disclosed;

(c) This ‘‘limited rights data’’ may be

disclosed to other Contractors participating

in the Government’s program of which this

Contract is a part for information or use

(except for manufacture) in connection with

the work performed under their contracts and

under the restriction that the ‘‘limited rights

data’’ be retained in confidence and not be

further disclosed; and

(d) This ‘‘limited rights data’’ may be used

by the Government or others on its behalf for

emergency repair or overhaul work under the

restriction that the ‘‘limited rights data’’ be

retained in confidence and not be further

disclosed. This Notice shall be marked on

any reproduction of this data in whole or in

part.

(e) Release to a foreign government, or

instrumentality thereof, as the interests of the

United States Government may require, for

information or evaluation, or for emergency

repair or overhaul work by such government.

(End of Notice)

(h) Rights in Restricted Computer Software.

(1) Except as may be otherwise specified in

this Contract as data which are not subject to

this paragraph, the Contractor agrees to and

does hereby grant to the Government an

irrevocable, nonexclusive, paid-up, license

by or for the Government, in any restricted

computer software of the Contractor

specifically used in the performance of this

Contract, provided, however, that to the

extent that any restricted computer software

when furnished or delivered is specifically

identified by the Contractor at the time of

initial delivery to the Government or a

representative of the Government, such data

shall not be used within or outside the

Government except as provided in the

‘‘Restricted Rights Notice’’ set forth below.

All such restricted computer software shall

be marked with the following ‘‘Restricted

Rights Notice’’:

Restricted Rights Notice-Long Form

(a) This computer software is submitted

with restricted rights under Government

Contract No. llll. It may not be used,

reproduced, or disclosed by the Government

except as provided in paragraph (b) of this

notice.

(b) This computer software may be:

(1) Used, or copied for use, in or with the

computer or computers for which it was

acquired, including use at any Government

installation to which such computer or

computers may be transferred;

(2) Used, copied for use, in a backup or

replacement computer if any computer for

which it was acquired is inoperative or is

replaced;

(3) Reproduced for safekeeping (archives)

or backup purposes;

(4) Modified, adapted, or combined with

other computer software, provided that only

the portions of the derivative software

consisting of the restricted computer software

are to be made subject to the same restricted

rights; and

(5) Disclosed to and reproduced for use by

contractors under a service contract (of the

type defined in FAR 37.101) in accordance

with subparagraphs (b)(1) through (4) of this

Notice, provided the Government makes such

disclosure or reproduction subject to these

restricted rights.

(c) Notwithstanding the foregoing, if this

computer software has been published under

copyright, it is licensed to the Government,

without disclosure prohibitions, with the

rights set forth in the restricted rights notice

above.

(d) This Notice shall be marked on any

reproduction of this computer software, in

whole or in part.

(End of Notice)

(2) Where it is impractical to include the

Restricted Rights Notice on restricted

computer software, the following short-form

Notice may be used in lieu thereof:

Restricted Rights Notice—Short Form

Use, reproduction, or disclosure is subject

to restrictions set forth in the Long Form

Notice of Contract No. llll with (name

of Contractor).

(End of Notice)

(3) If the software is embedded, or if it is

commercially impractical to mark it with

human readable text, then the symbol R and

the clause date (mo/yr) in brackets or a box,

a [R-mo/yr], may be used. This will be read

to mean restricted computer software, subject

to the rights of the Government as described

in the Long Form Notice, in effect as of the

date indicated next to the symbol. The

symbol shall not be used to mark human

readable material. In the event this Contract

contains any variation to the rights in the

Long Form Notice, then the contract number

must also be cited.

(4) If restricted rights computer software is

delivered with the copyright notice of 17

U.S.C. 401, the software will be presumed to

be published copyrighted computer software

licensed to the Government without

disclosure prohibitions, unlimited rights,

unless the Contractor includes the following

statement with such copyright notice

‘‘Unpublished-rights reserved under the

Copyright Laws of the United States.’’

(i) Relationship to patents.

Nothing contained in this clause creates or

is intended to imply a license to the

Government in any patent or is intended to

be construed as affecting the scope of any

licenses or other rights otherwise granted to

the Government under any patent.

(End of Clause)

Alternate I (XXX 1996): In accordance with

970.2706(f), insert the parenthetical phrase

‘‘(except Restricted Data in category C–24, 10

CFR part 725, in which DOE has reserved the

right to receive reasonable compensation for

the use of its inventions and discoveries,

including related data and technology)’’ after

‘‘technical data’’ in paragraph (b)(2)(ii) of the

clause at 970.5204–44, as appropriate.

(End of Alternate)

[FR Doc. 97–7327 Filed 3–28–97; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 395

[FHWA Docket No. MC–96–28]

RIN 2125–AD93

Hours of Service of Drivers

March 24, 1997.

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Advance notice of proposed

rulemaking (ANPRM); extension of

comment period.

SUMMARY: The FHWA is extending this

rulemaking’s comment period until June

30, 1997. This is in response to two

petitions received by the FHWA

requesting an extension of the comment

period closing date. The petitioners

based their requests upon the FHWA’s