        ENVIRONMENTAL PROTECTION AGENCY
        48 CFR Parts 1545 and 1552
        [EPA-HQ-OARM-2008-0817; FRL-8906-4]
        EPAAR Prescription and Clauses—Government Property—Contract Property Administration

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) amends the EPA Acquisition Regulation (EPAAR) to update policy, procedures, and contract clauses. The proposed rule consolidates the EPAAR physical property clauses (Decontamination, Fabrication, and Government Property), re-designates the prescription number in the data clause, and updates the roles and responsibilities of the contractor, DCMA and CPC.

          DATES:
          Comments must be received on or before July 23, 2009.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-HQ-OARM-2008-0817, by one of the following methods:
          • http://www.regulations.gov: Follow the on-line instructions for submitting comments.
          • E-mail: docket.oei@epa.gov.
          • Fax: (202) 566-1753.
          • Mail: EPA-HQ-OARM-2008-0817, OEI Docket, Environmental Protection Agency, 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of three (3) copies.
          • Hand Delivery: EPA Docket Center-Attention OEI Docket, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-2008-0817. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ”anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket, and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment, and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov, or in hard copy at the Government Property-Contract Property Administration Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1752. This Docket Facility is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Iris Redmon, Policy, Training and Oversight Division, Acquisition, Policy and Training Service Center (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-564-2644; fax number: 202-565-2475; e-mail address:  redmon.iris@epa.gov.

        SUPPLEMENTARY INFORMATION:

        I. General Information
        1. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI, and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket.
        Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.
        2. Tips for Preparing Your Comments. When submitting comments, remember to:

        • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
        • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
        • Describe any assumptions and provide any technical information and/or data that you used.
        • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        • Provide specific examples to illustrate your concerns, and suggest alternatives.
        • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
        • Make sure to submit your comments by the comment period deadline identified.
        II. Background

        The Federal Acquisition Regulation (FAR) on Government Property was revised June 14, 2007. This revision removed the previous restriction on providing government property for contract performance, and gave contracting officers more flexibility in their determination to provide property. Accordingly, in order to assist EPA contracting officers involved in providing Government Property and contract property administration, it is necessary to amend the EPAAR to incorporate guidance on their use.
        The administrative amendments are necessary for two reasons: First, align Agency Government Property policy and procedures with the Federal Acquisition Regulation Part 45, Government Property revision; and second, encourage contractors to use commercial standards for managing and recording property.
        III. Proposed Rule
        This proposed rule would make the following administrative changes to the government property clause prescription and clauses: (1) Re-designate the EPAAR prescription number 1545.106 as 1545.107 and change the prescription reference in 1552.245-71 Government Furnished Data; (2) consolidate the information in 1552.245-73 Government Property (GP) and 1552.245-72-Fabrication or Acquisition of Nonexpendable Property with 1552.245-70 Decontamination; (3) change the name of 1552.245-70 from Decontamination to Government Property; and (4) remove 1545.106 prescription, 1552.245-73 Government Property, and 1552.245-72 Fabrication or Acquisition of Nonexpendable Property.
        IV. Statutory and Executive Order Reviews
        A. Executive Order 12866: Regulatory Planning and Review
        This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866; therefore, no review is required by the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB).
        B. Paperwork Reduction Act

        The Paperwork Reduction Act does not apply because this rule does not contain information requirements that require the approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

        C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

        The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
        For purposes of assessing the impact of today's proposed rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated, and is not dominant in its field.
        After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Since providing government property will be available equally to large and small entities, this rule will not have a significant economic impact on small entities.
        D. Unfunded Mandates Reform Act
        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess their regulatory actions on State, local, and Tribal governments, and the private sector. This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.
        E. Executive Order 13132: Federalism
        Executive Order 13132, entitled, “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.”
        Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications, and preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
        This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule would amend the EPAAR to provide guidance on providing government property and make other administrative changes. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule.
        F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

        Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.”
        This proposed rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.
        In the spirit of Executive Order 13175, and consistent with EPA policy to promote communication between EPA and Tribal governments, EPA specifically solicits additional comment on this proposed rule from Tribal officials.
        G. Executive Order 13045
        Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23,1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
        This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and it does not involve decisions on environmental health or safety risk.
        H. National Technology Transfer and Advancement Act of 1995

        Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law, or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
        This proposed rule will use the voluntary standards and or/industry leading practices and standards for Government property management except where inconsistent with law or regulation, as stated in FAR 52.245-1(b).
        I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use
        This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

          List of Subjects in 48 CFR Parts 1545 and 1552
          Environmental protection, Government procurement.

          Dated: May 6, 2009.
          John C. Gherardini III,
          Acting Director, Office of Acquisition Management.

        Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth below:

          PART 1545—GOVERNMENT PROPERTY
          1. The authority citation for part 1545 continues to read as follows:

            Authority:
            Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

            Subpart 1545.1—General

          2. Redesignate section 1545.106 as section 1545.107, and revise the newly redesignated section to read as follows.

            § 1545.107
            Government property clauses.
            (a) The Contracting Officer shall insert the contract clause at 1552.245-70:
            (1) When it is anticipated that a Contractor will use Government-furnished or Contractor-acquired property in the cleanup of hazardous material as defined in Federal Standard No. 313, or, the toxic chemicals listed 40 CFR 372.65, in the environment.
            (2) In all cost-type solicitations and contracts regardless of whether Government property is initially provided, and in all fixed-price solicitations and contracts whenever Government-furnished property is provided.
            (b) The Contracting Officer shall insert the contract clause at 1552.245-71, Government-Furnished Data, in any contract in which the Government is to furnish data to the Contractor. The data to be provided shall be identified in the clause.

          PART 1552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          4. The authority citation for part 1552 continues to read as follows:

            Authority:
            5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b.

            Subpart 1552.2—Texts of Provisions and Clauses

          5. Revise section 1552.245-70 to read as follows:

            § 1552.245-70
            Government property.
            As prescribed in 1545.107(a), insert a clause substantially the same as follows:
            Government Property
            (a) The contractor shall not fabricate or acquire, on behalf of the Government, either directly or indirectly through a subcontract, any item of property without prior written approval from the Contracting Officer. If the Contracting Officer authorizes the contractor to acquire and/or fabricate equipment for use in the performance of this contract, the equipment shall be subject to the provisions of the “Government Property” clause and listed on the contract via contract modification.
            (b) If the Government provides item(s) of Government property to the contractor for use in the performance of this contract, this property shall be used and maintained by the contractor in accordance with the provisions of the “Government Property” clause.
            The “EPA Contract Property Administration Requirements” provided below apply to this contract.
            U.S. Environmental Protection Agency
            Contract Property Administration Requirements (CPAR)
            1. Purpose. This document sets forth the requirements for the U.S. Environmental Protection Agency (EPA) contractors performing Government property management responsibilities under EPA contracts. These requirements supplement those contained in the Government Property clause(s) and Part 45 Government Property of the Federal Acquisition Regulation (FAR).
            2. Contract Property Administration (CPAR).

            a. EPA Delegation. EPA delegates all contract property administration to the EPA Contract Property Coordinator (CPC). The delegations apply to all EPA contracts issued with or that have the potential to receive, purchase or acquire Government Property or include the Government Property clauses. In addition to administering all contract property, the CPC provides technical expertise and assistance to the Contracting Officer (CO) and Contracting Officer Technical Representative (COTR) relative to Government Property.
            b. DCMA Re-delegation. The CPC may re-delegate contract property management oversight to the Defense Contract Management Agency (DCMA) for property administration and plant clearance. Upon acceptance of the delegation, DCMA will provide notification to the contractor identifying the assigned property administrator (PA) and plant clearance officer (PLCO). The DCMA PA is available to the contractor for assistance in all matters of property administration.
            Notwithstanding the delegation, as necessary, the contractor may contact the EPA CO. In the event of a disagreement between the contractor and the DCMA PA, the contractor should seek resolution from the CO. Unless otherwise directed in the contract, or this document, all originals of written information or reports, except direct correspondence between the contractor and the DCMA PA, relative to Government property, should be forwarded to the administrative CO assigned to this contract and the CPC.
            c. Disagreements. Notwithstanding the delegation (s), as necessary, the contractor may contact the CO. In the event of a disagreement between the contractor and the PA or the CPC the contractor should seek resolution from the CO.
            3. Requests for Government Property.

            In accordance with FAR 45.102, the contractor shall furnish all property required for performing Government contracts. If a contractor believes that Government property is required for performance of the contract, the contractor shall submit a written request to the CO. At a minimum, the request shall contain the following elements:
            a. Contract number for which the property is required.
            b. An item(s) description, quantity and estimated cost.
            c. Certification that no like contractor property exists which could be utilized.
            d. A detailed description of the task-related purpose of the property.
            e. Explanation of negative impact if property is not provided by the Government.
            f. Lease versus purchase analysis shall be furnished with the request to acquire property on behalf of the Government, with the exception of requests for material purchases. The contractor may not proceed with acquisition of property on behalf of the Government until receipt of written authorization from the Contracting Officer.
            4. Transfer of Government Property. When the contractor receives Government Property (GP), the contractor should receive, from the transferor, (either EPA or another contractor) all of the applicable data elements (Attachment 1 of this clause) needed to maintain the required records. Prior to signing an acceptance document for the property, the receiving contractor should perform a complete inventory of the property. Responsibility, as well as accountability, passes with the signed acceptance, in accordance with FAR 45.106. When, at the written direction of the CO, via contract modification, the contractor transfers Government Property to another contractor, or another Agency, the contractor shall provide the applicable data elements (Attachment 1 of this clause).
            5. Records of Government Property.

            a. In accordance with FAR 52.245-1, the contractor shall create and maintain records of all Government property, regardless of value, including property provided to and in the possession of a subcontractor. Material provided by the Government or acquired by the contractor and billed as a direct charge to the contract is Government property and records must be established as such.
            b. The Contractor shall identify all Superfund property and designate it as such both on the item and on the Government property record. If it is not practicable to tag the item, the contractor shall write the ID number on a tag, card or other entity that may be kept with the item or in a file.
            c. Support documentation used for posting entries to the property record shall provide complete, current and auditable data. Entries shall be posted to the record in a timely manner following an action.
            d. For Government vehicles, in addition to the data elements required by EPA, the contractor shall also comply with the General Services Administration (GSA) and Department of Energy (DOE) record and report requirements supplied with all EPA provided motor vehicles. If the above requirements were not provided with the vehicle, the contractor shall notify the designated CPC and the Fleet Manager.
            e. When Government property is disclosed to be in the management and/or control of the contractor but not provided under any contract, the contractor shall record and report the property in accordance with FAR 52.245-1.
            6. Inventories of Government Property. The contractor shall conduct a complete physical inventory of EPA property at least once per year. The contractor shall report the results of the inventory, including any discrepancies, to the CO. Reconciliation of discrepancies shall be completed in accordance with the schedule negotiated with the CO. See section 10 herein, Contract Closeout, for information on final inventories.
            7. Reports of Government Property. EPA requires an annual summary report, for each contract, by contract number, of Government property in the contractor's possession. The annual summary is due as of September 30th of each year, and upon contract termination or expiration.
            a. For each classification listed on the EPA Property Report form, with the exception of material, the contractor shall provide the total acquisition cost and total quantity. If there are zero items in a classification, or if there is an ending balance of zero, the classification must be listed with zeros in the quantity and acquisition cost columns.
            b. For material, the contractor shall provide the total acquisition cost only.
            c. Property classified as Plant Equipment, Superfund and Special Test Equipment must be reported on two separate lines. The first line shall include the total acquisition cost and quantity of all items or systems with a unit acquisition cost of $25,000 or more. The second line shall include the total acquisition cost and quantity of all items with a unit acquisition cost of less than $25,000.
            d. For items comprising a system, which is defined as “a group of interacting items functioning as a complex whole,” the contractor may maintain the record as a system noting all components of the system under the main component or maintain individual records for each item. However, for the annual report of Government property the components must be reported as a system with one total dollar amount for the system, if that system total is $25,000 or more.
            e. The reports are to be received at EPA by the CPC by October 5th of each year.
            f. Distribution shall be as follows:

              Original to: CPC.

              One copy: CO.

            g. Contractors are required to comply with GSA and DOE special reporting requirements for motor vehicles. A statement of these requirements will be provided by the EPA Facility Management and Services Division (FMSD) concurrent with receipt of each vehicle.
            h. The contractor shall provide detailed reports on an as-needed basis, as may be requested by the CO or the CPC.
            8. Disposition of Government Property. The disposition process is composed of three distinct phases: Identification, reporting, and final disposition.
            a. Identification. The disposition process begins with the contractor identifying Government property that is no longer required for contract performance. Effective contract property management systems provide for identification of excess as it occurs. Once Government property has been determined to be excess to the accountable contract, it must be screened against the contractor's other EPA contracts for further use. If the property may be reutilized, the contractor shall notify the CO in writing. Government property will be transferred via contract modifications to other contracts only when the COs on both the current contract and the receiving contract authorize the transfer.
            b. Reporting.

            (i) EPA. Government property shall be reported in accordance with FAR 52.245-1. The Standard Form, SF 1428, Inventory Disposal Schedule, provides the format for reporting excess Government property. Instructions for completing and when to use the form may be found at FAR 52.245-1 (j). Forward the completed SF 1428 to the CPC. The SF 1428 is available at http://www.arnet.gov/far/current/html/FormsStandard54.html. Superfund property must contain a Superfund notification and the following language must be displayed on the form: “Note to CO: Reimbursement to the EPA Superfund is required.”
            (ii) DCMA. If the EPA contract has been re-delegated to DCMA, the excess items will be entered into the Plant Clearance Automated Reutilization Screening System (PCARSS). Access and information pertaining to this system may be addressed to the DCMA Plant Clearance Officer (PLCO).
            c. Disposition Instructions.

            (i) Retention. When Government property is identified as excess, the CO may direct the contractor in writing to retain all or part of the excess Government Property under the current contract for possible future requirements.
            (ii) Return to EPA. When Government property is identified as excess, the CO may direct the contractor in writing to return those items to EPA inventory. The contractor shall ship/deliver the property in accordance with the instructions provided by the CO.
            (iii) Transfer. When Government property is identified as excess, the CO may direct the contractor in writing to transfer the property to another EPA contractor. The contractor shall transfer the property by shipping it in accordance with the instructions provided by the CO. To effect transfer of accountability, the contractor shall provide the recipient of the property with the applicable data elements set forth in Attachment 1 of this clause.
            (iv) Sale. If GSA or the DCMA PLCO conducts a sale of the excess Government property, the contractor shall allow prospective bidders access to property offered for sale.
            (v) Abandonment. Abandoned property must be disposed of in a manner that does not endanger the health and safety of the public.
            If the contract is delegated to DCMA and the contractor has input EPA property into the PCARSS system, the EPA Property Utilization Officer (PUO) shall notify the CO. The CO shall notify the contractor in writing of those items EPA would like to retain, have returned or transferred to another EPA contractor. The contractor shall notify the DCMA PLCO and request withdrawal of those items from the inventory schedule.
            The contractor shall update the Government property record to indicate the disposition of the item and to close the record. The contractor shall also obtain either a signed receipt or proof of shipment from the recipient.
            The contractor shall notify the CO when all actions pertaining to disposition have been completed. The contractor shall complete an EPA Property report with changes, to include supporting documentation of completed disposition actions and submit it to the CPC.
            9. Decontamination. In addition to the requirements of the ”Government Property” clause and prior to performing disposition of any EPA Government Property, the contractor shall certify in writing that the property is free from contamination by any hazardous or toxic substances.
            10. Contract Closeout. The contractor shall complete a physical inventory of all Government property at contract completion and the results, including any discrepancies, shall be reported to the CO. If the contract is delegated to DCMA, the physical inventory report will be submitted to the EPA CO and a copy submitted to the DCMA PA.
            In the case of a terminated contract, the contractor shall comply with the inventory requirements set forth in the applicable termination clause. The results of the inventory, as well as a detailed inventory listing, must be forwarded to the CO and if delegated, a copy to the DCMA PA.
            In order to expedite the disposal process, contractors may be required to, or may elect to submit to the CPC, an inventory schedule for disposal purposes up to six (6) months prior to contract completion. If such an inventory schedule is prepared, the contractor must indicate the earliest date that each item may be disposed. The contractor shall update all property records to show disposal action. The contractor shall notify the CO, and, if delegated, the DCMA PA, in writing, when all work has been completed under the contract and all Government property accountable to the contract has been disposed. The contractor shall complete a FINAL EPA Property report with all supporting documentation to the CPC.
            Attachment 1

              Required Data Element—In addition to the requirements of FAR 52.245-1(f)(vi), Reports of Government Property, the contractor is required to maintain, and report the following data elements for EPA Government property (all elements are not applicable to material):
            Name and address of the administrative Contracting Officer.
            Name of the contractor representative.
            Business type.
            Name and address of the contract property coordinator.
            Superfund (Yes/No).
            No. of Subcontractor/Alternate Locations.

              Note:
              For items comprising a system which is defined as “a group of interacting items functioning as a complex whole,” the contractor may maintain the record as a system noting all components of the system under the main component or maintain individual records for each item. However, for the Annual Report of Government Property, the components must be reported as a system with one total dollar amount for the system, if that system total is $25,000 or more.

            (End of clause.)
            6. Revise section 1552.245-71 to read as follows:

            § 1552.245-71
            Government-furnished data.

            As prescribed in 1545.107 (b), insert the following contract clause in any contract that the Government is to furnish the Contractor data. Identify in the clause the data to be provided.

            Government-Furnished Data
            (a) The Government shall deliver to the Contractor the Government-furnished data described in the contract. If the data, suitable for its intended use, is not delivered to the Contractor, the Contracting Officer shall equitably adjust affected provisions of this contract in accordance with the ”Changes” clause when:
            (1) The Contractor submits a timely written request for an equitable adjustment; and
            (2) The facts warrant an equitable adjustment.
            (b) Title to Government-furnished data shall remain in the Government.
            (c) The Contractor shall use the Government-furnished data only in connection with this contract.
            (d) The following data will be furnished to the Contractor on or about the time indicated:
            (End of clause.)

            § 1552.245-72 and § 1552.245-73
            [Removed]
            7. Remove sections 1552.245-72 and 1552.245-73.

      [FR Doc. E9-14460 Filed 6-22-09; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Part 241
        [FRA Docket No. FRA-2001-8728, Notice No. 2]
        RIN 2130-AB38
        U.S. Locational Requirement for Dispatching of U.S. Rail Operations

          AGENCY:
          Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice of public hearing.

          SUMMARY:
          On December 11, 2001 (66 FR 63942), FRA published an Interim Final Rule (IFR) requiring all dispatching of railroad operations that occur in the United States to be performed in the United States with three minor exceptions. FRA is interested in receiving public comments on possible benefits and costs of this IFR and comments on whether FRA should adopt an alternative regulatory scheme under which extraterritorial dispatching of United States railroad operations would be permitted and, if so, under what conditions. In the IFR, FRA announced that it would schedule a public hearing to allow interested parties the opportunity to comment on these issues. This notice announces the scheduling of the public hearing.

          DATES:

            Public Hearing: The date of the public hearing is Tuesday, February 12, 2002, at 10 a.m. in Washington, DC. Any person wishing to participate in the public hearing should notify the Docket Clerk by telephone (202-493-6030) or by mail at the address provided below at least five working days prior to the date of the hearing and submit to the Docket Clerk three copies of the oral statement that he or she intends to make at the hearing. The notification should identify the party the person represents, and the particular subject(s) the person plans to address. The notification should also provide the Docket Clerk with the participant's mailing address.

          ADDRESSES:
          (1) Docket Clerk: Written notification should identify the docket number and must be submitted in triplicate to Ms. Ivornette Lynch, Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, RCC-10, 1120 Vermont Ave., NW., Stop 10, Washington, DC 20590.
          (2) Public Hearing: The public hearing will be held in the Department of Transportation Headquarters Building, 400 7th Street, SW., Rooms 3200-3204, Washington, DC 20590. Attendees should bring an identification card with photograph (such as a current driver's license), report to the security counter in the southwest quadrant of the DOT building for admission, and follow security procedures as provided at that location.

          FOR FURTHER INFORMATION CONTACT:
          Douglas Taylor, Staff Director for Operating Practices, FRA Office of Safety, RRS-11, 1120 Vermont Avenue, NW., Stop 25, Washington, DC 20590 (telephone 202-493-6255); John Winkle, Trial Attorney, FRA Office of the Chief Counsel, RCC-12, 1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590 (telephone 202-493-6067); or Billie Stultz, Deputy Assistant Chief Counsel, FRA Office of Chief Counsel, RCC-12, 1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590 (telephone 202-493-6053 or 202-493-6029).

            Issued in Washington, DC, on January 9, 2002.
            Allan Rutter,
            Federal Railroad Administrator.

      [FR Doc. 02-1027 Filed 1-15-02; 8:45 am]
      BILLING CODE 4910-06-P


        DEPARTMENT OF HOMELAND SECURITY
        Federal Emergency Management Agency
        44 CFR Part 67
        [Docket ID FEMA-2010-0003; Internal Agency Docket No. FEMA-B-1161]
        Proposed Flood Elevation Determinations

          AGENCY:
          Federal Emergency Management Agency, DHS.

          ACTION:
          Proposed rule.

          SUMMARY:
          Comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings.

          DATES:
          Comments are to be submitted on or before March 7, 2011.

          ADDRESSES:
          The corresponding preliminary Flood Insurance Rate Map (FIRM) for the proposed BFEs for each community is available for inspection at the community's map repository. The respective addresses are listed in the table below.

          You may submit comments, identified by Docket No. FEMA-B-1161, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail) luis.rodriguez1@dhs.gov.

          FOR FURTHER INFORMATION CONTACT:

          Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail) luis.rodriguez1@dhs.gov.

        SUPPLEMENTARY INFORMATION:
        The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

        These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

        Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

          National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

          Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

          Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

          Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

          Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

          List of Subjects in 44 CFR Part 67
          Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.

        Accordingly, 44 CFR part 67 is proposed to be amended as follows:

          PART 67—[AMENDED]
          1. The authority citation for part 67 continues to read as follows:

            Authority:
             42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

            § 67.4
            [Amended]
            2. The tables published under the authority of § 67.4 are proposed to be amended as follows:

                Flooding source(s)
                Location of referenced elevation**
                * Elevation in feet (NGVD)
                  + Elevation in feet
                  (NAVD)
                  # Depth in feet
                  above ground
                  ⁁ Elevation in meters
                  (MSL)

                Effective
                Modified
                Communities affected

                  Cheboygan County, Michigan, and Incorporated Areas

                Black Lake
                Entire shoreline within community
                None
                +616
                Township of Waverly.

                Black River
                Approximately 2.69 miles downstream of North Black River Road
                None
                +612
                Township of Aloha.

                Approximately 1.13 miles downstream of North Black River Road
                None
                +613

                Lake Huron
                Entire shoreline within community
                None
                +583
                Township of Beaugrand, Township of Benton, Township of Mackinaw.

                * National Geodetic Vertical Datum.

                + North American Vertical Datum.

                # Depth in feet above ground.

                ⁁ Mean Sea Level, rounded to the nearest 0.1 meter.

                ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed.

                Send comments to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.

                  ADDRESSES

                  Township of Aloha

                Maps are available for inspection at the Aloha Township Hall, 3012 North M-33, Cheboygan, MI 49721.

                  Township of Beaugrand

                Maps are available for inspection at the Beaugrand Township Hall, 1999 Old Mackinaw Road, Cheboygan, MI 49721.

                  Township of Benton

                Maps are available for inspection at the Benton Township Hall, 5012 Orchard Beach Road, Cheboygan, MI 49721.

                  Township of Mackinaw

                Maps are available for inspection at the Mackinaw Township Hall, 1095 Wallick Road, Mackinaw City, MI 49701.

                  Township of Waverly

                Maps are available for inspection at the Waverly Township Hall, 11133 Twin School Road, Onaway, MI 49765.

                  Mille Lacs County, Minnesota, and Incorporated Areas

                Mille Lacs Lake
                Entire shoreline within community
                None
                +1254
                City of Wahkon, Unincorporated Areas of Mille Lacs County.

                Rum River (Lower Reach)
                Approximately 2.25 miles downstream of State Highway 95
                None
                +962
                Unincorporated Areas of Mille Lacs County.

                Approximately 0.82 mile upstream of State Highway 95
                None
                +967

                * National Geodetic Vertical Datum.

                + North American Vertical Datum.

                # Depth in feet above ground.

                ⁁ Mean Sea Level, rounded to the nearest 0.1 meter.

                ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed.

                Send comments to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.

                  ADDRESSES

                  City of Wahkon

                Maps are available for inspection at City Hall, 151 2nd Street East, Wahkon, MN 56386.

                  Unincorporated Areas of Mille Lacs County

                Maps are available for inspection at the Mille Lacs County Courthouse Annex, 246 6th Avenue Southeast, Milaca, MN 56353.

              (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”)

            Dated: November 19, 2010.
            Sandra K. Knight,
            Deputy Federal Insurance and Mitigation Administrator, Mitigation, Department of Homeland Security, Federal Emergency Management Agency.

      [FR Doc. 2010-30615 Filed 12-6-10; 8:45 am]
      BILLING CODE 9110-12-P


        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Part 42
        [FAR Case 2009-042; Docket 2011-0087, Sequence 1]
        RIN 9000-AM09
        Federal Acquisition Regulation; Documenting Contractor Performance; Correction

          AGENCY:
          Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
          Proposed rule; correction.

          SUMMARY:
          This document corrects the comment date published in the Federal Register of August 9, 2011, regarding the proposed rule for Documenting Contractor Performance.

          DATES:
          The comment period for the proposed rule published June, 28, 2011, at 76 FR 37704, is extended. Comments will be received until September 29, 2011.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Curtis E. Glover, Sr., Procurement Analyst, at (202) 501-1448. Please cite FAR Case 2009-042.
          Correction

          In the proposed rule FR Doc. 2011-20089, beginning on page 48776, in the 2nd column, in the issue of August 9, 2011, make the following correction, in the DATES section:
          Remove “September 8, 2011” and add “September 29, 2011” in its place.

            Hada Flowers,
            Division Director, Regulatory Secretariat, Office of Governmentwide Policy, Office of Acquisition Policy.

      [FR Doc. 2011-20778 Filed 8-15-11; 8:45 am]
      BILLING CODE 6820-EP-P


        DEPARTMENT OF DEFENSE
        48 CFR Parts 227 and 252
        [DFARS Case 2001-D015]
        Defense Federal Acquisition Regulation Supplement; Patent Rights—Ownership by the Contractor

          AGENCY:
          Department of Defense (DoD).

          ACTION:
          Proposed rule with request for comments.

          SUMMARY:
          DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to add a clause pertaining to patent rights under contracts awarded to large business concerns for experimental, developmental, or research work. The clause is substantially the same as a clause that is presently found in the Federal Acquisition Regulation (FAR), but has been proposed for removal from the FAR because it applies only to DoD.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before November 1, 2004, to be considered in the formation of the final rule.

          ADDRESSES:
          You may submit comments, identified by DFARS Case 2001-D015, using any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for submitting comments.
          • E-mail: dfars@osd.mil. Include DFARS Case 2001-D015 in the subject line of the message.
          • Fax: Primary: (703) 602-7887; Alternate: (703) 602-0350.
          • Mail: Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.
          • Hand Delivery/Courier: Defense Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.
          All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Amy Williams, (703) 602-0328.

        SUPPLEMENTARY INFORMATION:
        A. Background
        The proposed FAR rule published at 68 FR 31790 on May 28, 2003, under FAR Case 1999-402, included changes that would remove the clause presently found at FAR 52.227-12, Patent Rights—Retention by the Contractor (Long Form), as DoD is the only agency that uses the clause. The clause is included in contracts awarded to large business concerns for experimental, developmental, or research work.
        This proposed DFARS rule contains a clause that is substantially the same as the clause at FAR 52.227-12, but contains changes for consistency with current statutory provisions and the FAR changes proposed under FAR Case 1999-402.
        • The definitions of “made” and “subject invention” in paragraph (a) of the clause have been revised to reflect that the term “date of determination” is no longer defined in Title 7 of the United States Code. The substance of the previously codified definition has been incorporated into the definition of “made,” and the obsolete statutory reference “7 U.S.C. 2401(d)” has been removed from the definition of “subject invention.”
        • “Domestic university” has been changed to “university” in the definition of “nonprofit organization” in paragraph (a) of the clause. The modifier “domestic” does not appear in the statutory definition at 35 U.S.C. 201(i), the implementing Department of Commerce regulations at 37 CFR 401.2(h), or the clause at FAR 52.227-11. The term “nonprofit organization” is used in the proposed DFARS clause only to refer to the application of the clause at FAR 52.227-11, which is not limited to domestic nonprofit organizations.
        • The term “small business concern” has been excluded from the definitions in paragraph (a) of the clause. The proposed FAR changes under FAR Case 1999-402 move the definition of “small business concern” from FAR Part 19 to Part 2, since the term is used in Part 19 and Part 27. Accordingly, this definition will be made applicable throughout the FAR and DFARS via FAR 2.101 and the clause at FAR 52.202-1 and is unnecessary for inclusion in this DFARS clause.
        • In paragraph (b)(1) of the clause, the reference to 35 U.S.C. 203 has been excluded, consistent with the proposed changes to FAR 52.227-11(b)(1) under FAR Case 1999-402. Paragraph (b)(1) of the proposed DFARS clause provides that the contractor may retain ownership of a subject invention in accordance with the provisions of the clause. 35 U.S.C. 203 is referenced in paragraph (h) of the proposed clause; therefore, there is no need to restate this reference in paragraph (b) of the clause.
        • In paragraph (c) of the clause, the terms “provisional” and “nonprovisional” have been used to describe a patent application to be filed, instead of the term “initial,” which is presently used in paragraph (c)(3) of the clause at FAR 52.227-12. The terms “provisional” and “nonprovisional” have been used by the U.S. Patent and Trademark Office (see 35 U.S.C. 111) since 1995 (previously, there was no such thing as a “provisional” application). They are used in this clause to avoid any misunderstanding as to whether the term “initial” refers to either one or both of these types of filing. This change is consistent with the proposed change to paragraph (c)(3) of the clause at FAR 52.227-11 under FAR Case 1999-402.
        • In paragraph (d) of the clause, the term “convey” has been replaced with the term “assign” with regard to transfer of title to a subject invention. The term “assign” is more technically accurate to describe the legal instrument used to transfer title or ownership.
        A prescription for the DFARS clause has been added at 227.303(2). The references to FAR 27.303(c) and (e), in the text at 227.303(2)(i)(B), correspond to the proposed FAR changes published on May 28, 2003, under FAR Case 1999-402.
        This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
        B. Regulatory Flexibility Act

        DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the clause proposed for addition to the DFARS applies only to contracts with large business concerns and is substantially the same as a FAR clause that DoD is presently using. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2001-D015.
        C. Paperwork Reduction Act
        The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies, because this rule contains information collection requirements proposed for addition to the hours approved under Office of Management and Budget (OMB) Control Number 0704-0369. OMB approval for the additional hours will be obtained prior to publication of the final rule.
        1. Comments: DoD invites comments on:
        a. Whether the collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility;
        b. The accuracy of the estimate of the burden of the proposed information collection;
        c. Ways to enhance the quality, utility, and clarity of the information to be collected; and
        d. Ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
        2. Title and OMB Number: Defense Federal Acquisition Regulation Supplement (DFARS) Part 227, Patents, Data, and Copyrights, and related provisions and clauses at DFARS 252.227; OMB Control Number 0704-0369.
        3. Needs and Uses: DoD needs this information to comply with 35 U.S.C. Chapter 18, Patent Rights in Inventions Made with Federal Assistance. The information will enable the Government to promote the commercialization of patentable results of Federally funded research by granting contractors the title to patents made in whole or in part with Federal funds, in exchange for royalty-free use by or on behalf of the Government.
        4. Affected Public: Large businesses.
        5. Annual Burden Hours: 1,266.
        6. Number of Respondents: 360.
        7. Responses Per Respondent: Approximately 3.
        8. Annual Responses: 1,055.
        9. Average Burden Per Response: 1.2 hours.
        10. Frequency: On occasion.
        11. Summary of Information Collection: The clause at DFARS 252.227-70XX requires the contractor to—
        a. Establish and maintain effective procedures for identifying and disclosing subject inventions;
        b. Disclose, in writing, all subject inventions to the contracting officer, and identify any publication, on sale, or public use of the inventions;
        c. Require its employees, by written agreement, to disclose subject inventions;
        d. Submit interim and final reports listing subject inventions;
        e. Report, upon request, on the utilization of subject inventions; and
        f. Notify the contracting officer, in writing, of the award of any subcontract containing a patents right clause.

          List of Subjects in 48 CFR Parts 227 and 252
          Government procurement.

          Michele P. Peterson,
          Executive Editor, Defense Acquisition Regulations Council.

        Therefore, DoD proposes to amend 48 CFR Parts 227 and 252 as follows:
        1. The authority citation for 48 CFR Parts 227 and 252 continues to read as follows:

          Authority:
          41 U.S.C. 421 and 48 CFR Chapter 1.

          PART 227—PATENTS, DATA, AND COPYRIGHTS
          2. Section 227.303 is revised to read as follows:

            227.303
            Contract clauses.
            (1) Use the following clauses in solicitations and contracts containing the clause at FAR 52.227-11, Patent Rights—Ownership by the Contractor:
            (i) 252.227-7034, Patents—Subcontracts.
            (ii) 252.227-7039, Patents—Reporting of Subject Inventions.
            (2)(i) Use the clause at 252.227-70XX, Patent Rights—Ownership by the Contractor (Large Business), instead of the clause at FAR 52.227-11, in solicitations and contracts for experimental, developmental, or research work if—
            (A) The contractor is other than a small business concern or nonprofit organization; and
            (B) No alternative patent rights clause is used in accordance with FAR 27.303(c) or (e).
            (ii) Use the clause with its Alternate I if—
            (A) The acquisition of patent rights for the benefit of a foreign government is required under a treaty or executive agreement;
            (B) The agency head determines at the time of award that it would be in the national interest to acquire the right to sublicense foreign governments or international organizations pursuant to any existing or future treaty or agreement; or
            (C) Other rights are necessary to effect a treaty or agreement, in which case Alternate I may be appropriately modified.
            (iii) Use the clause with its Alternate II in long term contracts if necessary to effect treaty or agreements to be entered into.

            227.304-4
            [Removed].
            3. Section 227.304-4 is removed.

          PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          4. Section 252.227-7034 is amended by revising the introductory text to read as follows:

            252.227-7034
            Patents—Subcontracts.
            As prescribed in 227.303(1)(i), use the following clause:

            5. Section 252.227-70XX is added to read as follows:

            252.227-70XX
            Patent Rights—Ownership by the Contractor (Large Business).
            As prescribed in 227.303(2), use the following clause:

              PATENT RIGHTS—OWNERSHIP BY THE CONTRACTOR (LARGE BUSINESS) (XXX 2004)
              (a) Definitions. As used in this clause—

                Invention means—
              (1) Any invention or discovery that is or may be patentable or otherwise protectable under Title 35 of the United States Code; or

              (2) Any variety of plant that is or may be protectable under the Plant Variety Protection Act (7 U.S.C. 2321, et seq.).

                Made—
              (1) When used in relation to any invention other than a plant variety, means the conception or first actual reduction to practice of the invention; or
              (2) When used in relation to a plant variety, means that the Contractor has at least tentatively determined that the variety has been reproduced with recognized characteristics.

                Nonprofit organization means—
              (1) A university or other institution of higher education;
              (2) An organization of the type described in the Internal Revenue Code at 26 U.S.C. 501(c)(3) and exempt from taxation under 26 U.S.C. 501(a); or
              (3) Any nonprofit scientific or educational organization qualified under a State nonprofit organization statute.

                Practical application means—
              (1)(i) To manufacture, in the case of a composition or product;
              (ii) To practice, in the case of a process or method; or
              (iii) To operate, in the case of a machine or system; and
              (2) In each case, under such conditions as to establish that—
              (i) The invention is being utilized; and
              (ii) The benefits of the invention are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

                Subject invention means any invention of the Contractor made in the performance of work under this contract.
              (b) Contractor's rights.

              (1) Ownership. The Contractor may elect to retain ownership of each subject invention throughout the world in accordance with the provisions of this clause.
              (2) License.

              (i) The Contractor shall retain a nonexclusive royalty-free license throughout the world in each subject invention to which the Government obtains title, unless the Contractor fails to disclose the invention within the times specified in paragraph (c) of this clause. The Contractor's license—
              (A) Extends to any domestic subsidiaries and affiliates within the corporate structure of which the Contractor is a part;
              (B) Includes the right to grant sublicenses to the extent the Contractor was legally obligated to do so at the time of contract award; and
              (C) Is transferable only with the approval of the agency, except when transferred to the successor of that part of the Contractor's business to which the invention pertains.
              (ii) The agency—
              (A) May revoke or modify the Contractor's domestic license to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with 37 CFR Part 404 and agency licensing regulations;
              (B) Will not revoke the license in that field of use or the geographical areas in which the Contractor has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public; and

              (C) May revoke or modify the license in any foreign country to the extent the Contractor, its licensees, or the domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.
              (iii) Before revoking or modifying the license, the agency—
              (A) Will furnish the Contractor a written notice of its intention to revoke or modify the license; and
              (B) Will allow the Contractor 30 days (or such other time as the funding agency may authorize for good cause shown by the Contractor) after the notice to show cause why the license should not be revoked or modified.
              (iv) The Contractor has the right to appeal, in accordance with 37 CFR Part 404 and agency regulations, concerning the licensing of Government-owned inventions, any decision concerning the revocation or modification of the license.
              (c) Contractor's obligations.

              (1) The Contractor shall—
              (i) Disclose, in writing, each subject invention to the Contracting Officer within 2 months after the inventor discloses it in writing to Contractor personnel responsible for patent matters, or within 6 months after the Contractor first becomes aware that a subject invention has been made, whichever is earlier;
              (ii) Include in the disclosure—
              (A) The inventor(s) and the contract under which the invention was made;
              (B) Sufficient technical detail to convey a clear understanding of the invention; and
              (C) Any publication, on sale (i.e., sale or offer for sale), or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication; and
              (iii) After submission of the disclosure, promptly notify the Contracting Officer of the acceptance of any manuscript describing the invention for publication and of any on sale or public use.
              (2) The Contractor shall elect in writing whether or not to retain ownership of any subject invention by notifying the Contracting Officer at the time of disclosure or within 8 months of disclosure, as to those countries (including the United States) in which the Contractor will retain ownership. However, in any case where publication, on sale, or public use has initiated the 1-year statutory period during which valid patent protection can be obtained in the United States, the agency may shorten the period of election of title to a date that is no more than 60 days prior to the end of the statutory period.
              (3) The Contractor shall—
              (i) File either a provisional or a nonprovisional patent application on an elected subject invention within 1 year after election, provided that in all cases the application is filed prior to the end of any statutory period wherein valid patent protection can be obtained in the United States after a publication, on sale, or public use;
              (ii) File a nonprovisional application within 10 months of the filing of any provisional application; and
              (iii) File patent applications in additional countries or international patent offices within either 10 months of the first filed patent application (whether provisional or nonprovisional) or 6 months from the date the Commissioner of Patents grants permission to file foreign patent applications where such filing has been prohibited by a Secrecy Order.
              (4) The Contractor may request extensions of time for disclosure, election, or filing under paragraphs (c)(1), (2), and (3) of this clause. The Contracting Officer will normally grant the extension unless there is reason to believe the extension would prejudice the Government's interests.
              (d) Government's rights.

              (1) Ownership. The Contractor shall assign to the agency, upon written request, title to any subject invention—
              (i) If the Contractor elects not to retain title to a subject invention;
              (ii) If the Contractor fails to disclose or elect the subject invention within the times specified in paragraph (c) of this clause and the agency requests title within 60 days after learning of the Contractor's failure to report or elect within the specified times;
              (iii) In those countries in which the Contractor fails to file patent applications within the times specified in paragraph (c) of this clause, provided that, if the Contractor has filed a patent application in a country after the times specified in paragraph (c) of this clause, but prior to its receipt of the written request of the agency, the Contractor shall continue to retain ownership in that country; and
              (iv) In any country in which the Contractor decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceeding on, a patent on a subject invention.
              (2) License. If the Contractor retains ownership of any subject invention, the Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced for or on behalf of the United States, the subject invention throughout the world.
              (e) Contractor action to protect the Government's interest.

              (1) The Contractor shall execute or have executed and promptly deliver to the agency all instruments necessary to—
              (i) Establish or confirm the rights the Government has throughout the world in those subject inventions in which the Contractor elects to retain ownership; and
              (ii) Assign title to the agency when requested under paragraph (d)(1) of this clause and enable the Government to obtain patent protection for that subject invention in any country.
              (2) The Contractor shall—
              (i) Require, by written agreement, its employees, other than clerical and nontechnical employees, to—
              (A) Disclose each subject invention promptly in writing to personnel identified as responsible for the administration of patent matters, so that the Contractor can comply with the disclosure provisions in paragraph (c) of this clause; and
              (B) Provide the disclosure in the Contractor's format, which should require, as a minimum, the information required by paragraph (c)(1) of this clause;
              (ii) Instruct its employees, through employee agreements or other suitable educational programs, as to the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U.S. or statutory foreign bars; and
              (iii) Execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject inventions.
              (3) The Contractor shall notify the Contracting Officer of any decisions not to file a nonprovisonal patent application, continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than 30 days before the expiration of the response or filing period required by the relevant patent office.
              (4) The Contractor shall include, within the specification of any United States nonprovisional patent application and any patent issuing thereon covering a subject invention, the following statement: “This invention was made with Government support under (identify the contract) awarded by (identify the agency). The Government has certain rights in this invention.”
              (5) The Contractor shall—
              (i) Establish and maintain active and effective procedures to ensure that subject inventions are promptly identified and disclosed to Contractor personnel responsible for patent matters;
              (ii) Include in these procedures the maintenance of—
              (A) Laboratory notebooks or equivalent records and other records as are reasonably necessary to document the conception and/or the first actual reduction to practice of subject inventions; and
              (B) Records that show that the procedures for identifying and disclosing the inventions are followed; and
              (iii) Upon request, furnish the Contracting Officer a description of these procedures for evaluation and for determination as to their effectiveness.
              (6) The Contractor shall, when licensing a subject invention, arrange to—
              (i) Avoid royalty charges on acquisitions involving Government funds, including funds derived through the Government's Military Assistance Program or otherwise derived through the Government;
              (ii) Refund any amounts received as royalty charges on the subject inventions in acquisitions for, or on behalf of, the Government; and
              (iii) Provide for the refund in any instrument transferring rights in the invention to any party.
              (7) The Contractor shall furnish to the Contracting Officer the following:
              (i) Interim reports every 12 months (or any longer period as may be specified by the Contracting Officer) from the date of the contract, listing subject inventions during that period and stating that all subject inventions have been disclosed or that there are no subject inventions.

              (ii) A final report, within 3 months after completion of the contracted work, listing all subject inventions or stating that there were no subject inventions, and listing all subcontracts at any tier containing a patent rights clause or stating that there were no subcontracts.
              (8)(i) The Contractor shall promptly notify the Contracting Officer in writing upon the award of any subcontract at any tier containing a patent rights clause by identifying—
              (A) The subcontractor;
              (B) The applicable patent rights clause;
              (C) The work to be performed under the subcontract; and
              (D) The dates of award and estimated completion.
              (ii) The Contractor shall furnish, upon request, a copy of the subcontract, and no more frequently than annually, a listing of the subcontracts that have been awarded.
              (9) In the event of a refusal by a prospective subcontractor to accept one of the clauses specified in paragraph (l)(1) of this clause, the Contractor—
              (i) Shall promptly submit a written notice to the Contracting Officer setting forth the subcontractor's reasons for the refusal and other pertinent information that may expedite disposition of the matter; and
              (ii) Shall not proceed with that subcontract without the written authorization of the Contracting Officer.
              (10) The Contractor shall provide to the Contracting Officer, upon request, the following information for any subject invention for which the Contractor has retained ownership:
              (i) Filing date.
              (ii) Serial number and title.
              (iii) A copy of any patent application (including an English-language version if filed in a language other than English).
              (iv) Patent number and issue date.
              (11) The Contractor shall furnish to the Government, upon request, an irrevocable power to inspect and make copies of any patent application file.
              (f) Reporting on utilization of subject inventions.

              (1) The Contractor shall—
              (i) Submit upon request periodic reports no more frequently than annually on the utilization of a subject invention or on efforts in obtaining utilization of the subject invention that are being made by the Contractor or its licensees or assignees;
              (ii) Include in the reports information regarding the status of development, date of first commercial sale or use, gross royalties received by the Contractor, and other information as the agency may reasonably specify; and
              (iii) Provide additional reports that the agency may request in connection with any march-in proceedings undertaken by the agency in accordance with paragraph (h) of this clause.
              (2) To the extent permitted by law, the agency shall not disclose the information provided under paragraph (f)(1) of this clause to persons outside the Government without the Contractor's permission, if the data or information is considered by the Contractor or its licensee or assignee to be “privileged and confidential” (see 5 U.S.C. 552(b)(4)) and is so marked.
              (g) Preference for United States industry. Notwithstanding any other provision of this clause, the Contractor agrees that neither the Contractor nor any assignee shall grant to any person the exclusive right to use or sell any subject invention in the United States unless the person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States. However, in individual cases, the agency may waive the requirement for an exclusive license agreement upon a showing by the Contractor or its assignee that—
              (1) Reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States; or
              (2) Under the circumstances, domestic manufacture is not commercially feasible.
              (h) March-in rights. The Contractor acknowledges that, with respect to any subject invention in which it has retained ownership, the agency has the right to require licensing pursuant to 35 U.S.C. 203 and 210(c), 37 CFR 401.6, and any supplemental regulations of the agency in effect on the date of contract award.
              (i) Other inventions. Nothing contained in this clause shall be deemed to grant to the Government any rights with respect to any invention other than a subject invention.
              (j) Examination of records relating to inventions.

              (1) The Contracting Officer or any authorized representative shall, until 3 years after final payment under this contract, have the right to examine any books (including laboratory notebooks), records, and documents of the Contractor relating to the conception or first reduction to practice of inventions in the same field of technology as the work under this contract to determine whether—
              (i) Any inventions are subject inventions;
              (ii) The Contractor has established procedures required by paragraph (e)(5) of this clause; and
              (iii) The Contractor and its inventors have complied with the procedures.
              (2) If the Contracting Officer learns of an unreported Contractor invention that the Contracting Officer believes may be a subject invention, the Contractor shall be required to disclose the invention to the agency for a determination of ownership rights.
              (3) Any examination of records under this paragraph (j) shall be subject to appropriate conditions to protect the confidentiality of the information involved.
              (k) Withholding of payment (this paragraph does not apply to subcontracts).

              (1) Any time before final payment under this contract, the Contracting Officer may, in the Government's interest, withhold payment until a reserve not exceeding $50,000 or 5 percent of the amount of the contract, whichever is less, is set aside if, in the Contracting Officer's opinion, the Contractor fails to—
              (i) Establish, maintain, and follow effective procedures for identifying and disclosing subject inventions pursuant to paragraph (e)(5) of this clause;
              (ii) Disclose any subject invention pursuant to paragraph (c)(1) of this clause;
              (iii) Deliver acceptable interim reports pursuant to paragraph (e)(7)(i) of this clause; or
              (iv) Provide the information regarding subcontracts pursuant to paragraph (e)(8) of this clause.
              (2) The reserve or balance shall be withheld until the Contracting Officer has determined that the Contractor has rectified whatever deficiencies exist and has delivered all reports, disclosures, and other information required by this clause.
              (3) The Government will not make final payment under this contract before the Contractor delivers to the Contracting Officer—
              (i) All disclosures of subject inventions required by paragraph (c)(1) of this clause;
              (ii) An acceptable final report pursuant to paragraph (e)(7)(ii) of this clause; and
              (iii) All past due confirmatory instruments.
              (4) The Contracting Officer may decrease or increase the sums withheld up to the maximum authorized in paragraph (k)(1) of this clause. No amount shall be withheld under this paragraph while the amount specified by this paragraph is being withheld under other provisions of the contract. The withholding of any amount or the subsequent payment thereof shall not be construed as a waiver of any Government right.
              (l) Subcontracts.
              (1) The Contractor—
              (i) Shall include the substance of the Patent Rights—Ownership by the Contractor clause set forth at 52.227-11 of the Federal Acquisition Regulation (FAR), in all subcontracts for experimental, developmental, or research work to be performed by a small business concern or nonprofit organization; and
              (ii) Shall include the substance of this clause, including this paragraph (l), in all other subcontracts for experimental, developmental, or research work, unless a different patent rights clause is required by FAR 27.303.
              (2) For subcontracts at any tier—
              (i) The patents rights clause included in the subcontract shall retain all references to the Government and shall provide to the subcontractor all the rights and obligations provided to the Contractor in the clause. The Contractor shall not, as consideration for awarding the subcontract, obtain rights in the subcontractor's subject inventions; and
              (ii) The Government, the Contractor, and the subcontractor agree that the mutual obligations of the parties created by this clause constitute a contract between the subcontractor and the Government with respect to those matters covered by this clause. However, nothing in this paragraph is intended to confer any jurisdiction under the Contract Disputes Act in connection with proceedings under paragraph (h) of this clause.

              (End of clause)

              ALTERNATE I (XXX 2004)
              As prescribed in 227.303(2)(ii), add the following paragraph (b)(2)(v) to the basic clause:

              (v) The license shall include the right of the Government to sublicense foreign governments, their nationals, and international organizations pursuant to the following treaties or international agreements: ___

                [* Contracting Officer to complete with the names of applicable existing treaties or international agreements. This paragraph is not intended to apply to treaties or agreements that are in effect on the date of the award but are not listed.]

              ALTERNATE II (XXX 2004)
              As prescribed in 227.303(2)(iii), add the following paragraph (b)(2)(v) to the basic clause:
              (v) The agency reserves the right to—
              (A) Unilaterally amend this contract to identify specific treaties or international agreements entered into or to be entered into by the Government after the effective date of this contract; and
              (B) Exercise those license or other rights that are necessary for the Government to meet its obligations to foreign governments, their nationals, and international organizations under any treaties or international agreement with respect to subject inventions made after the date of the amendment.

            6. Section 252.227-7039 is amended by revising the introductory text to read as follows:

            252.227-7039
            Patents—Reporting of Subject Inventions.
            As prescribed in 227.303(1)(ii), use the following clause:

      [FR Doc. 04-21853 Filed 9-29-04; 8:45 am]
      BILLING CODE 5001-08-P