5736 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

SUMMARY: DoD is amending the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to make needed 

editorial changes. 

DATES: Effective January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jennifer D. Johnson, Defense 

Acquisition Regulations System, 

telephone 703–717–8226. 

SUPPLEMENTARY INFORMATION: This final 

rule amends the DFARS to make needed 

editorial changes to comply with 

DFARS drafting conventions. 

List of Subjects in 48 CFR Parts 206, 

217, 219, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System amends 48 CFR 

parts 206, 217, 219, and 252 as follows: 

■ 1. The authority citation for 48 CFR 

parts 206, 217, 219, and 252 continues 

to read as follows: 

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

chapter 1. 

PART 206—COMPETITION 

REQUIREMENTS 

206.303–1 [Amended] 

■ 2. Amend section 206.303–1 in 

paragraphs (b) introductory text and 

(b)(1) by removing ‘‘sole source’’ and 

adding ‘‘sole-source’’ in its place. 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 3. Amend section 217.172 by revising 

paragraph (f)(2) to read as follows: 

217.172 Multiyear contracts for supplies. 

* * * * * 

(f) * * * 

(2) In addition, for contracts equal to 

or greater than $750 million, the head of 

the contracting activity must determine 

that the conditions required by 

paragraphs (h)(2)(i) through (vii) of this 

section will be met by such contract, in 

accordance with the Secretary’s 

certification and determination required 

by paragraph (h)(2) of this section. 

* * * * * 

PART 219—SMALL BUSINESS 

PROGRAMS 

219.808–1 [Amended] 

■ 4. Amend section 219.808–1 in the 

introductory text by removing ‘‘sole 

source’’ and adding ‘‘sole-source’’ in its 

place. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 5. Amend section 252.225–7003— 

■ a. By revising the provision heading 

and date; 

■ b. In paragraphs (b) introductory text 

and (b)(2) introductory text, by 

removing ‘‘offeror’’ wherever it appears 

and adding ‘‘Offeror’’ in its place; and 

■ c. In paragraphs (d) introductory text 

and (e), by removing ‘‘offeror’’ and 

adding ‘‘Offeror’’ in its place. 

The revisions read as follows: 

252.225–7003 Report of Intended 

Performance Outside the United States and 

Canada—Submission with Offer. 

* * * * * 

REPORT OF INTENDED PERFORMANCE 

OUTSIDE THE UNITED STATES AND 

CANADA—SUBMISSION WITH OFFER 

(JAN 2025) 

* * * * * 

[FR Doc. 2024–31569 Filed 1–16–25; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

[Docket DARS–2022–0030] 

RIN 0750–AL67 

Defense Federal Acquisition 

Regulation Supplement: Update of 

Challenge Period for Validation of 

Asserted Restrictions on Technical 

Data and Computer Software (DFARS 

Case 2022–D016) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement a section of the 

National Defense Authorization Act for 

Fiscal Year 2012, which addresses the 

validation of proprietary data 

restrictions. 

DATES: Effective January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: 

David Johnson, telephone 202–913– 

5764. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 89 FR 31686 on 

April 25, 2024, to implement section 

815(b) of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2012 (Pub. L. 112–81). Section 

815(b) amended 10 U.S.C. 2321 

(currently 10 U.S.C. 3782) by increasing 

the validation period for asserted 

restrictions from three years to six years. 

Section 815(b) also amended 10 U.S.C. 

2321 to provide an exception to the 

prescribed time limit for validation of 

asserted restrictions if the technical data 

involved are the subject of a 

fraudulently asserted use or release 

restriction. Two respondents submitted 

public comments in response to the 

proposed rule. DoD also held a public 

meeting on May 17, 2024. 

II. Discussion and Analysis 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments is provided, as follows: 

A. Summary of Significant Changes 

From the Proposed Rule 

There are no significant changes from 

the proposed rule. 

B. Analysis of Public Comments 

1. Technical Data or Software Delivered, 

Furnished, or Otherwise Provided to the 

Government 

Comment: The respondents suggested 

that the revisions to the clauses at 

DFARS 252.227–7019, Validation of 

Asserted Restrictions—Computer 

Software, and 252.227–7037, Validation 

of Restrictive Markings on Technical 

Data, to consistently reference technical 

data and computer software ‘‘delivered 

or otherwise provided to the 

Government’’ should be removed from 

the final rule. The existing clause 

language already references technical 

data delivered, software delivered, 

technical data required to be delivered, 

and software required to be delivered. 

Respondents assert that the phrase 

‘‘otherwise provided to the 

Government’’ is ambiguous and 

inconsistent with existing statutes. The 

respondents also asserted that this 

language may result in a potential 

chilling effect on the relationship 

between Government and contractors. 

Response: References to technical 

data and computer software ‘‘delivered 

or otherwise provided’’ to the 

Government appear multiple times in 

the current contract clauses at DFARS 

252.227–7013, Rights in Technical 

Data—Other Than Commercial Products 

and Commercial Services, and DFARS 

252.227–7014, Rights in Other Than 

Commercial Computer Software and 

Other Than Commercial Computer 


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Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 5737 

Software Documentation. These 

references cover technical data and 

computer software ‘‘delivered or 

otherwise furnished’’, ‘‘delivered or 

otherwise provided’’, and ‘‘delivered, 

furnished, or otherwise provided’’ to the 

Government, and both clauses reference 

the validation clauses. In addition, 

DFARS 252.227–7019(e) currently 

references ‘‘software delivered, to be 

delivered under this contract, or 

otherwise provided to the Government 

in the performance of this contract.’’ 

Accordingly, these revisions ensure 

consistency with existing language in 

DFARS 252.227–7019, 252.227–7013, 

and 252.227–7014, and clearly signals 

the scope of the validation clauses. The 

Government therefore declines the 

suggestion to remove these revisions 

from the final rule. 

2. Changes To Align With Statutory 

Language Related to Restrictions 

Asserted 

Comment: A respondent suggested 

that the replacement in several places in 

the DFARS of the phrase ‘‘restrictive 

markings’’ with the phrase ‘‘asserted 

restriction’’ is unnecessary for statutory 

alignment and may result in confusion. 

Response: The underlying statutes (10 

U.S.C. 3781–3786) repeatedly reference 

challenge, justification, and validation 

of ‘‘restriction[s] asserted’’ and ‘‘asserted 

restriction[s].’’ The statutes do not refer 

to restrictive markings. The final rule 

aligns the clauses with the underlying 

statutory language, and it creates 

consistent nomenclature and syntax 

throughout the clauses. The final rule 

references validation of ‘‘asserted 

restrictions’’, rather than validation of 

restrictive markings (which is 

inconsistent with the statutory language 

and more likely to be confused with the 

separate procedures for ensuring 

conformity of those markings). Rather 

than the confusing syntax of ‘‘striking’’ 

an asserted restriction, the final rule 

references striking ‘‘restrictive 

markings.’’ 

3. Definition of Fraud 

Comment: The respondents requested 

clarification with respect to when a use 

or release restriction would be 

considered ‘‘fraudulently asserted.’’ In 

addition, the respondents proposed 

specific requirements and limitations 

for the Government when invoking this 

exception to the six-year challenge 

period. 

Response: As stated in the proposed 

rule, the statutory revisions being 

implemented in DFARS Case 2022– 

D016 do not establish a specialized 

definition of ‘‘fraudulently asserted’’ or 

a knowledge requirement. The 

respondents proposed requirements and 

limitations on this exception to the sixyear challenge period. The respondents 

did not provide, and DoD is not aware 

of, either an existing statute, policy, or 

regulation that includes the proposed 

requirements or limitations, or evidence 

of congressional intent to impose the 

proposed requirements or limitations. 

As with other instances of the term 

fraud in the Federal Acquisition 

Regulation and DFARS, DoD relies upon 

the common meaning of the terminology 

used in the statute and regulatory 

implementation, informed by applicable 

procurement statutes, other applicable 

statutes, and case precedent. In 

addition, the existing validation 

procedures require the Government to 

state the specific grounds for 

challenging the asserted restriction, 

which includes the grounds for 

invoking the exception to the six-year 

challenge period. Such grounds are 

subject to review by a court of 

competent jurisdiction or the Armed 

Services Board of Contract Appeals. 

4. Applicability to Commercial Products 

or Commercial Services 

Comment: One respondent 

recommended revisions to the proposed 

language in DFARS 252.227–7037(e)(1) 

to clarify whether sufficient information 

to reasonably demonstrate funding for 

the development of commercial 

products or commercial services must 

be provided with every challenge. 

Response: The original language 

indicates that challenges will ‘‘[s]tate 

the specific grounds for challenging the 

asserted restriction including, for 

commercial products or commercial 

services, sufficient information to 

reasonably demonstrate that the 

commercial product or commercial 

service was not developed exclusively 

at private expense.’’ This requirement 

related to commercial products or 

commercial services is not optional, and 

the proposed revision was not intended 

to change this requirement. For the sake 

of clarity, the final rule reverts to the 

original language. 

5. Question About Other Rulemaking 

Case 

Comment: A respondent requested 

that DoD expedite the issuance of 

proposed rule for DFARS Case 2023– 

D022, Definition of Subcontract. 

Response: This comment is outside 

the scope of this rule, which 

implements section 815(b) of the NDAA 

for FY 2012. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT), for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items), 

and for Commercial Services 

This final rule amends the clauses at 

DFARS 252.227–7019, Validation of 

Asserted Restrictions—Computer 

Software, and DFARS 252.227–7037, 

Validation of Restrictive Markings on 

Technical Data. However, this final rule 

does not impose any new requirements 

on contracts at or below the SAT, for 

commercial products including COTS 

items, or for commercial services. The 

clause will continue to apply to 

acquisitions at or below the SAT, to 

acquisitions of commercial products 

including COTS items, and to 

acquisitions of commercial services. 

IV. Expected Impact of the Rule 

This final rule includes changes to 

lengthen the validation period for 

asserted restrictions from three years to 

six years. This final rule also provides 

an exception to the prescribed time 

limit for validation of asserted 

restrictions if the technical data or 

computer software involved are the 

subject of a fraudulently asserted 

restriction. Therefore, the final rule may 

increase the number of challenges to 

which contractors must respond. 

However, DoD cannot quantify the 

estimated number of the additional 

challenges at this time. 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, as amended. 

VI. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD 

will submit a copy of the interim or 

final rule with the form, Submission of 

Federal Rules Under the Congressional 

Review Act, to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 


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5738 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

States. A major rule under the 

Congressional Review Act cannot take 

effect until 60 days after it is published 

in the Federal Register. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a major 

rule as defined by 5 U.S.C. 804. 

VII. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq. and is summarized as follows: 

DoD is amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 815(b) of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2012 (Pub. 

L. 112–81), which addresses the period 

for validation of proprietary data 

restrictions. The objective of the rule is 

to implement section 815(b), which 

amended 10 U.S.C. 2321 (currently 10 

U.S.C. 3782) by increasing the 

validation period for asserted 

restrictions from three years to six years. 

Section 815(b) also amended 10 U.S.C. 

2321 to provide an exception to the 

prescribed time limit for validation of 

asserted restrictions if the technical data 

involved are the subject of a 

fraudulently asserted use or release 

restriction. This rule will ensure that the 

Government has adequate opportunity 

to challenge discrepancies or 

inaccuracies in contractor assertions of 

data and software rights. 

The public comments raised no 

significant issues in response to the 

initial regulatory flexibility analysis. 

This rule applies to small entities that 

have contracts with DoD requiring 

delivery of data, including technical 

data and computer software. DoD 

obtained data for fiscal years 2020 

through 2022 from the Procurement 

Business Intelligence Service for all 

contracts and modifications that include 

one or more of the following DFARS 

clauses: 252.227–7013, Rights in 

Technical Data—Other Than 

Commercial Products or Commercial 

Services; 252.227–7014, Rights in Other 

Than Commercial Computer Software 

and Other Than Commercial Computer 

Software Documentation; 252.227–7015, 

Technical Data—Commercial Products 

and Commercial Services; and 252.227– 

7018, Rights in Other Than Commercial 

Technical Data and Computer 

Software—Small Business Innovation 

Research Program and Small Business 

Technology Transfer Program. DoD 

awarded on average 54,255 contract 

actions per year that included one or 

more of the listed clauses to 9,550 

unique entities, of which 28,657 

contract awards (53 percent) were made 

to 6,033 unique small entities (63 

percent). 

This rule does not impose any new 

reporting, recordkeeping, or other 

compliance requirements for small 

entities. 

There are no known alternatives that 

would accomplish the stated objectives 

of the applicable statute. 

VIII. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) applies to this final 

rule. However, these changes to the 

DFARS do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved by the Office of Management 

and Budget (OMB) under OMB Control 

Number 0704–0369, entitled DFARS 

Subpart 227.71, Rights in Technical 

Data; and Subpart 227.72, Rights in 

Computer Software and Computer 

Software Documentation, and related 

provisions and clauses. 

List of Subjects in 48 CFR Part 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System amends 48 CFR part 

252 as follows: 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 1. The authority citation for part 252 

continues to read as follows: 

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

chapter 1. 

■ 2. Amend section 252.227–7019— 

■ a. By revising paragraph (b); 

■ b. In paragraph (d)(2)(i)(B) by revising 

the second sentence; 

■ c. In paragraph (e)(1) by revising the 

second sentence; 

■ d. In paragraph (f)(1)(ii) by removing 

‘‘within 60 days’’ and adding ‘‘in 

writing within 60 days’’ in its place; 

■ e. In paragraph (g)(3)(i)(B) by 

removing ‘‘government’’ and adding 

‘‘Government’’ in its place. 

The revisions read as follows: 

252.227–7019 Validation of Asserted 

Restrictions—Computer Software. 

* * * * * 

(b) Justification. The Contractor shall 

maintain records sufficient to justify the 

validity of any asserted restrictions on 

the Government’s rights to use, modify, 

reproduce, perform, display, release, or 

disclose computer software delivered, 

required to be delivered, or otherwise 

provided to the Government under this 

contract and shall be prepared to 

furnish to the Contracting Officer a 

written justification for such asserted 

restrictions in response to a request for 

information under paragraph (d) of this 

clause or a challenge under paragraph 

(f) of this clause. 

* * * * * 

(d) * * * 

(2) * * * 

(i) * * * 

(B) * * * If the Contractor fails to 

correct or strike the unjustified marking 

and return the corrected software to the 

Contracting Officer within 60 days 

following receipt of the software, the 

Contracting Officer may correct or strike 

the marking at the Contractor’s expense; 

* * * * * 

(e) * * * 

(1) * * * Except for software that is 

publicly available, has been furnished to 

the Government without restrictions, 

has been otherwise made available 

without restrictions, or is the subject of 

a fraudulently asserted use or release 

restriction, the Government may 

exercise this right only within 6 years 

after the date(s) the software is delivered 

or otherwise furnished to the 

Government, or 6 years following final 

payment under this contract, whichever 

is later. 

* * * * * 

■ 3. Amend section 252.227–7037— 

■ a. By revising the section heading and 

the clause heading and date; 

■ b. By revising paragraphs (c), (d), 

(e)(1) introductory text, and (e)(1)(iii); 

■ c. In paragraph (e)(4) by removing 

‘‘restrictive markings’’ and adding 

‘‘asserted restrictions’’ in its place; 

■ d. By revising paragraph (g)(1); 

■ e. In paragraph (g)(2)(i) by removing 

‘‘restrictive marking’’ and ‘‘In order to’’ 

and adding ‘‘asserted restriction’’ and 

‘‘To’’ in their places, respectively; 

■ f. By revising paragraphs (g)(2)(ii) 

through (iv); 

■ g. In paragraph (h)(1)(i) by removing 

‘‘marking’’ and adding ‘‘marking that is 

based on the asserted restriction’’ in its 

place; 

■ h. By revising paragraphs (h)(1)(ii) 

and (i); and 

■ i. In paragraph (k) by removing 

‘‘restrictive markings’’ and 

‘‘subcontractors’’ and adding 

‘‘restrictions’’ and ‘‘subcontractor’’ in 

their places, respectively. 

The revisions read as follows: 

252.227–7037 Validation of Asserted 

Restrictions on Technical Data. 

* * * * * 


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Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 5739 

VALIDATION OF ASSERTED 

RESTRICTIONS ON TECHNICAL 

DATA (JAN 2025) 

* * * * * 

(c) Justification. The Contractor or 

subcontractor at any tier is responsible for 

maintaining records sufficient to justify the 

validity of its asserted restrictions on the 

rights of the Government and others to use, 

duplicate, release, or disclose technical data 

delivered, required to be delivered, or 

otherwise provided to the Government under 

the contract or subcontract. Except as 

provided in paragraph (b) of this clause, the 

Contractor or subcontractor shall be prepared 

to furnish to the Contracting Officer a written 

justification for such asserted restrictions in 

response to a challenge under paragraph (e) 

of this clause. 

(d) Prechallenge request for information. 

(1) The Contracting Officer may request the 

Contractor or subcontractor to furnish a 

written explanation for any asserted 

restriction on the right of the United States 

or others to use, disclose, or release technical 

data. If, upon review of the explanation 

submitted, the Contracting Officer cannot 

determine the basis of the asserted 

restriction, the Contracting Officer may 

further request the Contractor or 

subcontractor to furnish additional 

information in the records of, or otherwise in 

the possession of or reasonably available to, 

the Contractor or subcontractor to justify the 

validity of any asserted restriction on 

technical data delivered, to be delivered, or 

otherwise provided to the Government under 

the contract or subcontract (e.g., a statement 

of facts accompanied with supporting 

documentation). The Contractor or 

subcontractor shall submit such written data 

as requested by the Contracting Officer 

within the time required or such longer 

period as may be mutually agreed. 

(2) If the Contracting Officer, after 

reviewing the written data furnished 

pursuant to paragraph (d)(1) of this clause, or 

any other available information pertaining to 

the validity of an asserted restriction, 

determines that reasonable grounds exist to 

question the current validity of the asserted 

restriction and that continued adherence to 

the asserted restriction would make 

impracticable the subsequent competitive 

acquisition of the item or process to which 

the technical data relates, the Contracting 

Officer will follow the procedures in 

paragraph (e) of this clause. 

(3) If the Contractor or subcontractor fails 

to respond to the Contracting Officer’s 

request for information under paragraph 

(d)(1) of this clause, and the Contracting 

Officer determines that continued adherence 

to the asserted restriction would make 

impracticable the subsequent competitive 

acquisition of the item or process to which 

the technical data relates, the Contracting 

Officer may challenge the validity of the 

asserted restriction as described in paragraph 

(e) of this clause. 

(e) * * * 

(1) Notwithstanding any provision of this 

contract concerning inspection and 

acceptance, if the Contracting Officer 

determines that a challenge to the asserted 

restriction is warranted, the Contracting 

Officer will send a written challenge notice 

to the Contractor or subcontractor making the 

asserted restriction. The challenge notice and 

all related correspondence shall be subject to 

handling procedures for classified 

information and controlled unclassified 

information. Such challenge will— 

* * * * * 

(iii) State that a Contracting Officer’s final 

decision, issued pursuant to paragraph (g) of 

this clause, sustaining the validity of a prior 

asserted restriction identical to the current 

asserted restriction, within the 3-year period 

preceding the current challenge, shall serve 

as justification for the current asserted 

restriction if the prior validated restriction 

was asserted by the same Contractor or 

subcontractor (or any licensee of such 

Contractor or subcontractor) to which such 

notice is being provided; and 

* * * * * 

(g) * * * 

(1) If the Contracting Officer determines 

that the Contractor or subcontractor has 

justified the validity of the asserted 

restriction, the Contracting Officer will issue 

a final decision to the Contractor or 

subcontractor that sustains the validity of the 

asserted restriction and that states that the 

Government will continue to be bound by the 

asserted restriction. The Contracting Officer 

will issue this final decision within 60 days 

after receipt of the Contractor’s or 

subcontractor’s response to the challenge 

notice, or within such longer period that the 

Contracting Officer has notified the 

Contractor or subcontractor that the 

Government will require. The Contracting 

Officer will provide notification of any longer 

period for issuance of a final decision within 

60 days after receipt of the response to the 

challenge notice. 

* * * * * 

(2) * * * 

(ii) The Government agrees that it will 

continue to be bound by the asserted 

restriction for a period of 90 days from the 

issuance of the Contracting Officer’s final 

decision under paragraph (g)(2)(i) of this 

clause. The Contractor or subcontractor 

agrees that, if it intends to file suit in the 

United States Court of Federal Claims, it will 

provide a notice of intent to file suit to the 

Contracting Officer within 90 days from the 

issuance of the Contracting Officer’s final 

decision under paragraph (g)(2)(i) of this 

clause. If the Contractor or subcontractor fails 

to appeal, file suit, or provide a notice of 

intent to file suit to the Contracting Officer 

within the 90-day period, the Government 

may cancel or ignore the restrictive markings 

that are based on the asserted restrictions, 

and the failure of the Contractor or 

subcontractor to take the required action 

constitutes agreement with such Government 

action. 

(iii) The Government agrees that it will 

continue to be bound by the asserted 

restriction where a notice of intent to file suit 

in the United States Court of Federal Claims 

is provided to the Contracting Officer within 

90 days from the issuance of the final 

decision under paragraph (g)(2)(i) of this 

clause. The Government will no longer be 

bound, and the Contractor or subcontractor 

agrees that the Government may strike or 

ignore the restrictive marking that is based on 

the asserted restriction, if the Contractor or 

subcontractor fails to file its suit within 1 

year after issuance of the final decision. 

Notwithstanding the foregoing, where the 

head of an agency determines, on a 

nondelegable basis, that urgent or compelling 

circumstances will not permit waiting for the 

filing of a suit in the United States Court of 

Federal Claims, the Contractor or 

subcontractor agrees that the agency may, 

following notice to the Contractor or 

subcontractor, authorize release or disclosure 

of the technical data. Such agency 

determination may be made at any time after 

issuance of the final decision and will not 

affect the Contractor’s or subcontractor’s right 

to damages against the United States where 

its asserted restrictions are ultimately upheld 

or to pursue other relief, if any, as may be 

provided by law. 

(iv) The Government agrees that it will be 

bound by the asserted restrictions where an 

appeal or suit is filed pursuant to the 

Contract Disputes statute until final 

disposition by an agency Board of Contract 

Appeals or the United States Court of Federal 

Claims. Notwithstanding the foregoing, 

where the head of an agency determines, on 

a nondelegable basis, following notice to the 

Contractor that urgent or compelling 

circumstances will not permit awaiting the 

decision by such Board of Contract Appeals 

or the United States Court of Federal Claims, 

the Contractor or subcontractor agrees that 

the agency may authorize release or 

disclosure of the technical data. Such agency 

determination may be made at any time after 

issuance of the final decision and will not 

affect the Contractor’s or subcontractor’s right 

to damages against the United States where 

its asserted restrictions are ultimately upheld 

or to pursue other relief, if any, as may be 

provided by law. 

(h) * * * 

(1) * * * 

(ii) If the asserted restriction is found not 

to be substantially justified, the Contractor or 

subcontractor, as appropriate, shall be liable 

to the Government for payment of the cost to 

the Government of reviewing the asserted 

restriction and the fees and other expenses 

(as defined in 28 U.S.C. 2412(d)(2)(A)) 

incurred by the Government in challenging 

the asserted restriction, unless special 

circumstances would make such payment 

unjust. 

* * * * * 

(i) Duration of right to challenge. (1) The 

Government may review the validity of any 

restriction on technical data, delivered or to 

be delivered under a contract, asserted by the 

Contractor or subcontractor. During the 

period within 6 years of final payment on a 

contract or within 6 years of delivery of the 

technical data to the Government, whichever 

is later, the Contracting Officer may review 

and make a written determination to 

challenge the restriction. The Government 

may, however, challenge a restriction on the 

release, disclosure, or use of technical data at 

any time if such technical data— 


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5740 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

1 89 FR 79767. A correction to the Rule was 

published on October 28, 2024 (89 FR 85450). 

2As stated in the Rule: ‘‘If FRA receives an 

adverse, substantive comment on any of the 

provisions, it will publish in the Federal Register 

a timely withdrawal, informing the public that the 

direct final rule will not take effect.’’ 89 FR 79767 

at 79768. 

3 88 FR 21879 (Apr. 6, 2023) available at https:// 

www.federalregister.gov/documents/2023/04/11/ 

2023-07760/modernizing-regulatory-review. 

4 DOT–2100.6A-Rulemaking and Guidance (Jun. 

7, 2021) available at https://

www.transportation.gov/sites/dot.gov/files/2021-08/ 

Final-for-OST-C-210407-001-signed.pdf. 

(i) Are publicly available; 

(ii) Have been furnished to the United 

States without restriction; 

(iii) Have been otherwise made available 

without restriction; or 

(iv) Are the subject of a fraudulently 

asserted use or release restriction. 

(2) Only the Contracting Officer’s final 

decision resolving a formal challenge by 

sustaining the validity of a restrictive 

marking constitutes ‘‘validation’’ as 

addressed in 10 U.S.C. 3785(c). 

* * * * * 

[FR Doc. 2025–00722 Filed 1–16–25; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 225 

[Docket No. FRA–2024–0034] 

RIN 2130–AC98 

Accident/Incident Investigation Policy 

for Gathering Information and 

Consulting With Stakeholders 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule; withdrawal. 

SUMMARY: FRA is withdrawing the direct 

final rule titled ‘‘Federal Railroad 

Administration Accident/Incident 

Investigation Policy for Gathering 

Information and Consulting with 

Stakeholders,’’ (the Rule) which was 

published on October 1, 2024. 

DATES: Effective on January 17, 2025, 

FRA withdraws the direct final rule 

published at 89 FR 79767 on October 1, 

2024. 

FOR FURTHER INFORMATION CONTACT: Rick 

Huggins, Supervisory Railroad Security 

Specialist, Office of Railroad Safety, 

FRA, telephone: 202–465–6922 or 

email: ricky.huggins@dot.gov; or Senya 

Waas, Senior Attorney, Office of the 

Chief Counsel, FRA, telephone: 202– 

875–4158 or email: senyaann.waas@

dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 1, 2024, FRA published 

the Rule in the Federal Register 

amending 49 Code of Federal 

Regulations (CFR) 225.31 to, in 

accordance with Section 22417 of the 

Infrastructure Investment and Jobs Act 

(IIJA), create a standard process for 

investigators to use during accident and 

incident investigations conducted under 

that section.1 This process was to be 

used to determine when it was 

appropriate to collect information and 

the appropriate method for gathering 

that information about an accident or 

incident under investigation from 

railroad carriers, contractors or 

employees of railroad carriers, or 

representatives of employees of railroad 

carriers, and others, as determined 

relevant by the Secretary. The process 

was also to be used to determine when 

it was appropriate to consult with 

railroad carriers, contractors or 

employees of railroad carriers, or 

representatives of employees of railroad 

carriers, and others, as determined 

relevant by the Secretary, for technical 

expertise on the facts of the accident or 

incident under investigation. See Public 

Law 117–58, Section 22417, Nov. 15, 

2021, 135 Stat. 748. 

The Rule generated two adverse, 

substantive comments. Accordingly, as 

described in more detail below, FRA has 

decided to withdraw the Rule. 

II. Reasons for Withdrawal 

FRA is withdrawing the Rule, which 

took effect on November 15, 2024. FRA 

received two adverse, substantive 

comments which opposed the Rule. 

There were no comments submitted in 

support of the Rule.2

Commenters objecting to the Rule 

stated that the Rule was insufficient as 

it needed to be expanded to include the 

outside review of accidents/incidents by 

professionals, such as physicists or 

highly-qualified industrial engineers, as 

independent reviews of findings. 

Commenters also alleged that FRA’s 

outreach to the Class I railroads was 

limited and insufficient, and 

nonexistent to short line railroads. As 

such, it was the position of the 

commenters that FRA did not account 

for how the Rule would fully affect the 

railroad industry in the following ways: 

(1) FRA’s ‘‘catch-all’’ provision for 

determining which accidents trigger the 

information gathering and stakeholder 

consultation requirements is vague and 

fails to properly implement the IIJA 

mandate; (2) FRA’s description of 

‘‘stakeholders’’ fails to properly 

implement the IIJA mandate; (3) FRA 

fails to explain substantive regulatory 

changes in 49 CFR 225.31(a); (4) 

loopholes allow for information to be 

shared with third parties during an 

investigation; (5) it is unclear how 

FRA’s web-based document sharing site 

will protect against the disclosure of 

confidential information; (6) there are 

no protections against post-investigation 

disclosures of confidential information; 

(7) the identity of a stakeholder should 

not be kept confidential from other 

stakeholders; (8) FRA’s investigation 

policy would create untenable conflicts 

with NTSB practice in situations where 

NTSB and FRA conduct overlapping 

investigations; (9) FRA improperly 

limits the basis for restricting 

stakeholder access to an accident site; 

(10) FRA does not have the authority to 

grant a stakeholder ‘‘virtual’’ access to 

railroad property; (11) the investigation 

policy will result in undue delays in 

clearing accident sites; (12) FRA adopts 

an incident command model but fails to 

provide details on its structure and 

tasks; and (13) FRA underestimates the 

cost of compliance of the new 

regulation. 

Given the extent of the commenters’ 

substantive issues with the Rule, FRA is 

withdrawing the Rule at this time in 

order to re-assess its components and 

work further with stakeholders to 

evaluate potential changes. 

III. Regulatory Impact and Notices 

A. Executive Order 12866 as Amended 

by Executive Order 14094 and DOT 

Regulatory Policies and Procedures 

This withdrawal is a non-significant 

regulatory action within the meaning of 

Executive Order (E.O.) 12866, as 

amended by E.O. 14094, ‘‘Modernizing 

Regulatory Review 3’’ and DOT’s Order, 

‘‘Rulemaking and Guidance 

Procedures,’’ DOT 2100.6A (June 7, 

2021).4 FRA made this determination 

because the economic effects of this 

regulatory action will not exceed the 

$100 million annual threshold as 

defined by E.O. 12866. 


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