[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)]
[Rules and Regulations]
[Pages 10499-10515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5079]


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DEPARTMENT OF ENERGY

10 CFR Part 600

48 CFR Parts 915, 927, 952, and 970

RIN 1991-AB33


Assistance Regulations; Acquisition Regulations; Revisions to 
Rights in Data Regulations

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is amending its Financial 
Assistance and Acquisition Regulations to effect changes to its rights 
in technical data regulations to reflect a greater reliance upon the 
rights in technical data coverage in the Federal Acquisition Regulation 
and to recognize the requirements relating to technology transfer 
activities at certain DOE laboratories.

EFFECTIVE DATE: This rule is effective April 3, 1998.

FOR FURTHER INFORMATION CONTACT:

Robert M. Webb, U.S. Department of Energy, Office of Procurement and 
Assistance Management, 1000 Independence Avenue, SW., Washington, D.C. 
20585, (202) 586-8264.
Judson Hightower, U.S. Department of Energy, Office of Assistant 
General Counsel for Technology, Transfer and Intellectual Property, 
1000 Independence Avenue, SW., Washington, D.C. 20585, (202) 586-2813.

SUPPLEMENTARY INFORMATION:

I. Background.
II. Discussion of Comments.
III. Procedural Requirements.
    A. Review Under Executive Order 12866.
    B. Review Under Executive Order 12988.
    C. Review Under the Regulatory Flexibility Act.
    D. Review Under the Paperwork Reduction Act.
    E. Review Under the National Environmental Policy Act.
    F. Review Under Executive Order 12612.
    G. Review Under Small Business Regulatory Enforcement Fairness 
Act of 1996.
    H. Review Under the Unfunded Mandate Reform Act of 1995.

I. Background

    This final rule promulgates regulations published for comment on 
March 31, 1997, at 62 FR 15138. These new regulations delete the 
coverage of rights in technical data, including regulations, 
solicitation provisions, and contract clauses currently in the 
Department of Energy Acquisition Regulation (DEAR). The new coverage 
relies substantially on the rights in technical data regulations, 
provisions, and clauses in the Federal Acquisition Regulation (FAR), 
except where other coverage is appropriate to fulfill DOE's statutory 
duties to disseminate data produced in its research, development and 
demonstration programs. Coverage in Subpart 970.27 of the DEAR has been 
written to reflect the considerations relating to and use of two 
alternate rights in technical data clauses in DOE's management and 
operating contracts. Finally, these regulations relocate material on 
the handling of proposal data by non-Federal evaluators and reflects 
the effect on their selection of section 6002 of the Federal 
Acquisition Streamlining Act of 1994 (Pub. L. 103-355).
    This final rule supersedes Acquisition Letters No. 87-5, 88-1, and 
91-7.

II. Discussion of Comments

    Eleven commenters responded to the proposed rule. Five of the 
commenters were DOE management and operating contractors; two others 
were universities; two were trade associations, and the remaining two 
were DOE employees. The comments have been considered and disposed of 
as described below.
    Material from 10 CFR Part 600 has been added at the outset of the 
presentation of the regulatory changes of this final rule though those 
changes were not part of the proposed rule. DOE has a practice of 
inviting public comment on significant policies that are added to a 
final rule that were not within scope of the notice of proposed 
rulemaking. DOE has decided not to reopen the comment period in this 
case, because the changes to 10 CFR Part 600 are not significant. DOE's 
financial assistance policies on rights in technical data have always 
followed the policies applicable to procurement. There is no reason to 
think that the changes made by today's final rule should be altered for 
financial assistance. These changes to 10 CFR Part 600 merely correct 
references to the Rights in Data-General clause to conform to the 
Department of Energy Acquisition Regulation coverage of this final rule 
and call for the use of paragraph (d)(3) that appears in the DEAR in 
lieu of the one that has appeared at 600.27(b)(2)(i)(C).
    In the time since the publication of the proposed rule, Part 15 of 
the Federal Acquisition Regulation has been rewritten and material that 
had been at 15.413-2 dealing with the handling of proposal data and the 
use of non-Federal evaluators was deleted. The proposed rule contained 
alterations, for DOE's purposes, to paragraphs (e) and (f) of the FAR 
coverage as it then existed. We believe that the FAR material that was 
deleted has value to DOE contracting officers, and, as a result, this 
final rule publishes the substance of the former FAR and proposed DEAR 
provisions dealing with the handling of proposal data and use of non-
Federal evaluators in DOE procurements at subsection 915.207-70.
    One commenter suggested that DOE should identify the employers of 
non-Federal evaluators. We did not make a change. The notice of use of 
non-Federal evaluators is sufficient to allow

[[Page 10500]]

potential proposers to assess any risks of compromising proprietary 
data.
    Another commenter suggested several additions to the nondisclosure 
agreement at 915.413-2(f)(b). We did not make a change, believing the 
agreement as recited in the proposed rule to be sufficient to inform 
the non-Federal evaluator of his or her responsibilities to maintain 
the propriety of the material being evaluated.
    We have included subsections 927.402-1(b) and 927.403, though they 
were not published in the proposed rule. We have made minor 
modifications to these two provisions to change references that result 
from the publication of this final rule, including substituting the 
terms ``limited rights data'' and ``restricted computer software'' for 
``confidential data'' each time the latter term appeared. This 
substitution was also made throughout the remainder of the rule, 
including the clauses.
    Several commenters questioned the use of the phrase ``to acquire 
permission [from DOE] to assert copyright in any technical data or 
computer software'' or variations as used throughout this final rule. 
The basis for these questions is the recognition that under current 
copyright law, the drafter of the document or creator of the software 
has an automatic copyright in the data. The use of this phrase 
recognizes that right but controls the copyright of data first produced 
in the performance of a DOE contract by requiring permission from DOE 
before the contractor can assert the copyright. This phrase and the 
process as used in these regulations conforms to the phrase and the 
process used throughout the data regulations and clauses of the Federal 
Acquisition Regulation. By oversight, this phrase was not used in the 
proposed rule in paragraph (d)(3) of 927.409(a). That provision has 
been altered to bring it into conformity with the remainder of the 
regulations and clauses.
    A commenter requested a clarification of the prohibition against a 
Federal prime contractor's using economic leverage ``to inequitably 
acquire rights in a subcontractor's confidential data'' stated in the 
proposed rule at subsection 927.404(k)(2). We have made a change to 
prohibit the use of economic leverage to acquire rights in a 
subcontractor's limited rights data or restricted computer software for 
the contractor's private use, and the contractor shall not acquire such 
rights in standard commercial items on behalf of the Government without 
the prior approval of DOE patent counsel. This same proscription has 
been stated at 970.406(c)(3) with regard to DOE management and 
operating contracts and has been discussed in the subcontracts 
paragraphs of the clauses at 970.5204-82 and 970.5204-83.
    This same provision has been added to 970.2706(c) and has been 
reflected in the clauses at 970.5204-82 and 970.5204-83. In addition, 
in each of those instances, a provision has been added to require the 
prior approval of DOE Patent Counsel where a management and operating 
contract proposes to acquire limited rights data or restricted computer 
software from a subcontractor using other than Alternate II or 
Alternate III, respectively, to the Rights in Data--General clause at 
FAR 52.227-14 as amended in accordance with DEAR 927.409(a).
    One commenter expressed concern over a possible interpretation of a 
requirement for contractor licensing as discussed at paragraph 
927.404(l) and Alternate VI implying a license in patents. No such 
license is intended and, in fact, is expressly denied in paragraph (i) 
of the Rights in Data--General clause at FAR 52.227-14.
    Paragraph (a) of 927.409 has been altered to allow contracting 
officers to use Alternate IV in contracts for basic and applied 
research with educational institutions where software is not a 
specified deliverable. Also, one commenter noticed that at 927.409(a) 
we failed to include a definition for ``form, fit, and function data.'' 
We have added the definition, using the FAR wording.
    Another commenter questioned the changing of the FAR definitions of 
``data'' and ``technical data,'' relocating the exception for contract 
administration data from ``data,'' as in the FAR, to ``technical 
data.'' We continue to believe our proposed definitions more accurately 
reflect the true meaning of the terms, but, upon study of the Rights in 
Data--General clause at FAR 52.227-14, have chosen to use the FAR 
definitions of these two terms both for contracts that are not 
management and operating contracts and for the clauses at 970.5204-82 
and 970.5204-83 for management and operating contracts.
    Other commenters questioned the simplifying of the definitions for 
``limited rights data'' and ``restricted computer software.'' This 
simplification combines two definitions and avoids the FAR definition 
where ``limited rights'' are defined but do not recite verbatim the 
limited rights that appear in Alternate II or, in the case of 
``restricted computer software,'' Alternate III. The revised 
definitions avoid any potential for ambiguity by referencing the 
applicable rights as they may appear in the clause.
    A commenter noticed that the definitions recited at 927.409(a) 
already include Alternate I. Therefore, we have deleted the separate 
instruction to use Alternate I.
    Another commenter suggested that we have altered the definition of 
unlimited rights that was provided in the FAR. That commenter says 
``DOE has deleted the phrase `by or on behalf of the Government.' '' 
The FAR definition includes no such phrase. This rule differs from the 
FAR in the definition of ``unlimited rights'' only by the addition of 
``, including by electronic means,'' in recognition of the increasing 
use of electronic means to disseminate data.
    At subparagraph (a)(2)(vi) we have altered the instruction for use 
of the clause at 970.5204-82 to require its inclusion in contracts for 
the management or operation of a DOE facility or site in addition to 
DOE management and operation contracts. It is critical that DOE assure 
its ownership of data relating to management or operation of a facility 
or site in the same manner that has historically existed for the 
management and operating contracts. This same principle has been dealt 
with expressly in the subcontract instructions in paragraph (d) of the 
clause at 970.5204-82 and paragraph (f) of the clause at 970.5204-83, 
now requiring the application of the clause at 970.5204-82 in 
subcontracts for the management or operation of a DOE facility or site.
    A commenter has questioned why we apparently merely repeat 
paragraph (h) of FAR 27.409. That FAR citation calls for use of the 
Additional Data Requirements clause at FAR 52.227-16 ``normally.'' DOE 
requires the use of that clause any time the clause at FAR 52.227-14 is 
used. Paragraph (h) as included in the DEAR as a result of this rule 
does not include the word ``normally.''
    Another commenter objected to the proposed prescription at 
927.409(s) for use of the Rights in Proposal Data clause at FAR 52.227-
23. The Department chooses to take unlimited rights in proposal data as 
a condition of award of its contracts, believing that effective 
contract administration requires the use of the clause as proposed. The 
clause provides for the offeror's identifying and thereby exempting 
allegedly proprietary data included in the proposal from these 
unlimited rights. Furthermore, the clause will affect only the awardee. 
We have made no change.
    Two commenters suggest that the paragraph at 970.2705 is misplaced 
and should be moved to regulations dealing

[[Page 10501]]

with organizational conflicts of interest. We disagree. The paragraph 
already was in the DEAR at 970.2705 as paragraph (c) rather than 
paragraph (b). The issue dealt with is limitations on use of contract 
data in proposals of the parent or affiliates of a DOE management and 
operating contractor. A general recognition of controlling the flow of 
data between the management and operating (M&O) contractor and its 
parent is discussed at 970.0905. We have made no change.
    Those same commenters object to the proposed paragraph at 
970.2705(c), saying it imposes restrictions on private use of what is 
otherwise data available in the public domain by DOE M&O contractors. 
Paragraph (c) is intended merely to reflect the conditions for the 
private use of contract data as provided in the two data rights clauses 
for DOE management and operating contractors. Those contractors are 
allowed to use contract data for private purposes but must respect 
restrictive markings of data acquired from third parties. We have 
deleted the proposed 970.2705(c), relying on the appropriate clause to 
control with no need for further explanation.
    We have recognized the possibility of instances in which a DOE 
management and operating contractor or a contractor that manages or 
operates a DOE facility or site should be required to grant a limited 
license to responsible third parties or the Government in background 
limited rights data or restricted computer software. In the proposed 
rule this recognition was limited to contracts using the Rights in 
Data-General clause at 48 CFR 52.227-14 as amended by 48 CFR 927.209(a) 
with Alternate VI being prescribed for use when appropriate. We have 
added a discussion at 970.2706(d)(2) to discuss this subject treatment 
in the data clauses for use in DOE management and operating contracts 
and contracts for the management or operation of a DOE facility or 
site.
    A commenter questioned the proposed paragraph (e) of 970.2706 in 
the context of paragraph (c) of the Rights in Data--Facilities clause 
at 970.5204-82. The commenter notes that 970.2706(e) recognizes the 
right to assert copyright in data first produced in performance of the 
contract as a valuable tool; yet, as proposed the facilities clause 
does not apparently require the M&O contractor to acquire DOE 
permission to copyright software. This clause would be used in M&O 
contracts that do not have technology transfer as a part of their 
performance obligations while those who have a technology transfer 
obligation are required under the clause at 970.5204-83 to acquire such 
permission. This situation results from an oversight in the use of the 
term technical data. Paragraph (c) of the clause at 970.5204-82 has 
been altered to require the contractor to acquire permission from DOE 
to assert copyright in technical data or computer software. In all 
cases describing the DOE's license in data produced under the contract 
where permission has been granted to assert copyright, we have used 
``paid up'' throughout, replacing the term ``royalty free'' wherever it 
appeared in both the clauses at 970.5204-82 and 970.5204-83.
    One commenter suggested that the Government's unlimited rights in 
paragraph (b)(1) of both data clauses for management and operating 
contracts should be modified to recognize exceptions for limited rights 
data and restricted computer software. We agree and have made the 
change.
    Another commenter requested that the term ``specifically used'' as 
used in the same paragraph (b)(1) of those M&O data clauses be defined. 
We disagree, believing the term to be self-defining. Additionally, it 
should be noted that the FAR already uses the term in subparagraph 
(b)(2)(i) of the Rights in Data--General clause at FAR 52.227-14.
    Four commenters question the right of ownership of the Government 
as stated in paragraph (b)(1)(i) of the clauses at 970.5204-82 and 
970.5204-83. Generally, the concept of ownership is not meaningful in 
the context of data. However, these clauses are intended to be included 
in DOE's management and operating contracts, contracts under which the 
contractors are responsible for the management and operation of large 
reservations and many and varied facilities that are Government-owned 
and that fall under safety and health and national security stewardship 
responsibilities of DOE. The data necessary to the operation of those 
facilities must be readily available in the context of continuing and 
future operations, whether involving the past, current, or future 
operations of the incumbent contractor or the future operations of a 
successor contractor. To this end, ready access to any such data and 
unlimited rights in any other data specifically used is necessary. We 
understand the questions raised but have made no change in this regard.
    In subparagraph (b)(1)(ii) of the clauses at 970.5204-82 and 
970.5204-83, we have recognized as an exception to the reservation of 
unlimited rights, limited rights data, restricted rights computer 
software, data produced under a statutory program that establishes the 
treatment of data, and, as appropriate, data produced in conjunction 
with DOE's work for others program. In the clause at 970.5204-83 we 
have also excluded data produced under a Cooperative Research and 
Development Agreement where that agreement so provides.
    Two commenters suggest that the copyright licenses granted the 
United States in any scientific or technical works as expressed in 
paragraph (d)(1) of the clause at 970.5204-83 should be repeated 
verbatim in the notice stated in paragraph (d)(2). We agree and have 
made the technical adjustments to bring this about.
    Two commenters object to the requirement of paragraph (e)(1)(i)(C) 
of the clause at 970.5204-83 that a contractor include in any request 
for the right to assert copyright ``whether the data is subject to an 
international treaty or agreement,'' saying that the contractor may not 
have such knowledge. We have made a change recognizing that the 
contractor's obligation in this regard is subject to the contractor's 
best knowledge. We have recognized under paragraph (e)(1) that the 
right of the contractor to assert copyright in data produced under a 
Cooperative Research and Development Agreement will be controlled by 
that agreement.
    Two commenters express a concern with regard to the current form of 
paragraph (e)(1)(i)(F) of the same clause that the requirement for the 
contractor to obtain the permission of ``all other funding sources'' 
prior to making the request. They question whether this requires a 
second permission if the contractor has in place an agreement that 
provides for such permission. Where an agreement between the contractor 
and any funding sources provides the necessary permission, states that 
such permission is not necessary, or allows each participant to 
copyright its data developed under the agreement, a special request is 
not necessary, and a mere statement of the applicable situation will 
satisfy the requirement as stated.
    Two commenters recommend that the third sentence of the paragraph 
at (e)(1)(ii) of the clause at 970.5204-83 end after the phrase 
``Intellectual Property'' and that the remaining phrase ``where data 
are determined to be subject to export controls'' become the 
introductory phrase to a new fourth sentence that would allow the 
contractor to obtain permission to copyright data subject to export 
controls and assert that copyright to the extent provided by export 
control statutes and regulations. We have made this change.

[[Page 10502]]

    Several commenters have raised concerns about the system of the 
Department's granting permission to assert copyright contained in the 
clause at 970.5204-83, particularly in various subparagraphs of 
paragraph (e)(3). That system provides for the contractor's request to 
be for a five-year period with provision for extensions in increments 
of five years where that permission leads to commercialization of the 
data, generally computer software, that is the subject of the request. 
Some commenters state that commercialization is less likely where the 
permission is limited to a five-year period and extensions are subject 
to further requests for permission. Firms interested in commercializing 
such data often make their interest conditional upon periods longer 
than five years. In recognition of this possibility and to remove the 
potential for this process to impede commercialization of valuable 
contract data, we have changed the provisions of the clause to allow 
for requests for specific periods longer than five years where it can 
be shown that the longer period will aid commercialization. 
Additionally, where justified, extensions may also be requested for 
periods longer than five years with the same showing without regard to 
the length of the original permission.
    We have also named in subparagraph (e)(3)(i) of the clause at 
970.5204-83 the central depository for receipt of software from 
contractors and dissemination of software materials to the public, the 
Energy Science and Technology Software Center, to avoid any ambiguity 
in contractors' responsibilities for delivery to DOE of software 
developed under a DOE contract.
    One commenter objected to the length of the copyright 
acknowledgment prescribed at paragraph (e)(3)(v) of the clause at 
970.5204-83. We have made changes to simplify and shorten the notice.
    One commenter opined that the disclaimer of the notice at paragraph 
(e)(4) of 970.5204-83 be capitalized. We agree and have made the 
change. In addition, we have added a paragraph (e)(5) to allow 
contractors to request from DOE permission to mark technical data with 
a restrictive legend similar to the one authorized for computer 
software, limiting their use pending disposition of a request to assert 
copyright.
    Two commenters made suggestions about paragraph (f) of the clause 
at 970.5204-83, dealing with the treatment of rights in data in 
subcontracts under management and operating contracts, involving 
technology transfer. One suggests that the flowdown obligations are too 
specific. We have made this change since the introductory language 
allows the contracting officer to vary the subcontract obligations 
where appropriate. We have made corresponding changes to paragraph (f) 
of the clause at 970.5204-83 and paragraph (d) of the clause at 
970.5204-82 to assure that they expressly comply with the explanatory 
regulatory coverage at 970.2706(c)(1). The second suggestion was a 
request that there be ``an option for the M&O contractor to acquire 
ownership of copyright in software developed under a subcontract, or at 
least an exclusive license,'' where a subcontract was for software 
development. Nothing in the clause as drafted precludes such an 
arrangement, where appropriate. In addition, the requirement for 
application of the clause at 970.5204-82 in certain subcontracts 
discussed earlier has been reflected in both clauses.
    Two commenters object to the limited rights legend used in the 
clauses at 970.5204-82 and 970.5204-83, saying that paragraph (e) of 
the notice allows for the possibility that data developed at private 
expense could be released ``to a foreign government, or instrumentality 
thereof, as the interests of the United States Government may require, 
for information or evaluation, or for emergency repair or overhaul work 
by such government.'' The possibility exists but only for the purposes 
enunciated in the legend. The notice, including the language that is 
the subject of the comments, is the standard FAR limited rights legend 
of Alternate II to the clause at FAR 52.227-14.
    Finally, commenters noticed several typographical errors. We 
appreciate their observations and have made the appropriate 
corrections.

III. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
these regulations meet the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    This final rule has been reviewed under the Regulatory Flexibility 
Act of 1980, Pub. L. 96-354, that requires preparation of an initial 
regulatory flexibility analysis for any rule that must be proposed for 
public comment and that is likely to have significant economic impact 
on a substantial number of small entities. The contracts to which this 
rulemaking would apply are agreements that contemplate the creation of 
technical data. Normally, such contracts, and any resulting 
subcontracts, would be cost reimbursement type contracts. Thus, there 
would not be an adverse economic impact on contractors or 
subcontractors. Accordingly, DOE certifies that this final rule will 
not have a significant economic impact on a substantial number of small 
entities, and, therefore, no regulatory flexibility analysis has been 
prepared.

D. Review Under the Paperwork Reduction Act

    No additional information or record keeping requirements are 
imposed by this rulemaking. Accordingly, no OMB clearance is required 
under the

[[Page 10503]]

Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this final rule falls into a 
class of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR part 1021, subpart D) implementing the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this final rule is categorically excluded from NEPA 
review because the amendments to the DEAR would be strictly procedural 
(categorical exclusion A6). Therefore, this final rule does not require 
an environmental impact statement or environmental assessment pursuant 
to NEPA.

F. Review Under Executive Order 12612

    Executive Order 12612 (52 FR 41685, October 30, 1987) requires that 
regulations, rules, legislation, and any other policy actions be 
reviewed for any substantial direct effects on States, on the 
relationship between the Federal Government and the States, or in the 
distribution of power and responsibilities among the various levels of 
Government. If there are sufficient substantial direct effects, then 
the Executive Order requires the preparation of a federalism assessment 
to be used in all decisions involved in promulgating and implementing a 
policy action. This final rule merely reflects current practice 
relating to rights in technical data. States which contract with DOE 
will be subject to this rule. However, DOE has determined that this 
rule will not have a substantial direct effect on the institutional 
interests or traditional functions of the States.

G. Review Under Small Business Regulatory Enforcement Fairness Act of 
1996

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of the rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(3).

H. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking only affects private sector entities, and the 
impact is less than $100 million.

List of Subjects

10 CFR Part 600

    Administrative practice and procedure.

48 CFR Parts 915, 927, 952, and 970

    Government procurement.

    Issued in Washington, D.C. on February 20, 1998.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.


    For the reasons set out in the preamble, Part 600 of Title 10 and 
Chapter 9 of Title 48 of the Code of Federal Regulations, respectively, 
are amended as set forth below.

10 CFR

PART 600--FINANCIAL ASSISTANCE RULES

    1. The authority citation for Part 600 of Title 10 continues to 
read as follows:

    Authority: 42 U.S.C. 7254, 7256, 13525; 31 U.S.C. 6301-6308, 
unless otherwise noted.

    2. In Sec. 600.27, paragraph (b)(2)(i)(C) is removed, paragraph 
(b)(2)(i)(D) is redesignated as paragraph (b)(2)(i)(C), paragraph 
(b)(2)(i)(B) is amended by adding after ``non-profit organizations,'' 
the phrase ``the clause referred to in paragraph (b)(2)(i)(A) of this 
section shall be revised by deleting paragraph (d)(3) and inserting the 
following paragraph (c) in lieu of paragraph (c) of that clause:'', and 
paragraph (b)(2)(i)(A) is revised to read as follows:


Sec. 600.27  Patent and data provisions.

    (b) * * *
    (2) * * *
    (i) Rights in data--General. (A) Incorporate 48 CFR 52.227-14 with 
its Alternate V and with the definitional paragraph (a) and paragraph 
(d)(3) of 48 CFR 927.409(a)(1). Solicitations shall also include the 
Representation of Limited Rights Data and Restricted Computer Software 
provision at 48 CFR 52.227-15. Contracting officers shall treat rights 
in data matters in accordance with 48 CFR 927.4.
* * * * *

Title 48 of the Code of Federal Regulations

PART 915--CONTRACTING BY NEGOTIATION

    3. The authority citation for Part 915 continues to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

    4. Subsection 915.207-70 is added as follows:


915.207-70  Handling of proposals during evaluation.

    (a) Proposals furnished to the Government are to be used for 
evaluation purposes only. Disclosure outside the Government for 
evaluation is permitted only to the extent authorized by, and in 
accordance with the procedures in this subsection.
    (b) While the Government's limited use of proposals does not 
require that the proposal bear a restrictive notice, proposers should, 
if they desire to maximize protection of their trade secrets or 
confidential or privileged commercial and financial information 
contained in them, apply the restrictive notice prescribed in paragraph 
(e) of the provision at 52.215-1 to such information. In any event, 
information contained in proposals will be protected to the extent 
permitted by law, but the Government assumes no liability for the use 
or disclosure of information (data) not made subject to such notice in 
accordance with paragraph (e) of the provision at 48 CFR 52.215-1.
    (c) If proposals are received with more restrictive conditions than 
those in paragraph (e) of the provision at 48 CFR 52.215-1, the 
contracting officer or coordinating officer shall inquire whether the 
submitter is willing to accept the conditions of paragraph (e). If the 
submitter does not, the contracting officer or coordinating officer 
shall, after consultation with counsel, either return the proposal or 
accept it as marked. Contracting officers shall not exclude from 
consideration any proposals merely because they contain an authorized 
or agreed to notice, nor shall they be prejudiced by such notice.
    (d) Release of proposal information (data) before decision as to 
the award of a contract, or the transfer of valuable and sensitive 
information between competing offerors during the competitive phase of 
the acquisition process, would seriously disrupt the Government's 
decision-making process and undermine the integrity of the competitive 
acquisition process, thus adversely affecting the Government's ability 
to solicit competitive proposals and award a contract which would best 
meet the Government's needs and serve the public interest. Therefore, 
to the extent permitted by law, none of the information (data) 
contained in proposals, except as authorized in this subsection, is to 
be disclosed outside the Government before the Government's decision as 
to the award

[[Page 10504]]

of a contract. In the event an outside evaluation is to be obtained, it 
shall be only to the extent authorized by, and in accordance with the 
procedures of, this subsection.
    (e)(1) In order to maintain the integrity of the procurement 
process and to assure that the propriety of proposals will be 
respected, contracting officers shall assure that the following notice 
is affixed to each solicited proposal prior to distribution for 
evaluation:

Government Notice for Handling Proposals

    This proposal shall be used and disclosed for evaluation 
purposes only, and a copy of this Government notice shall be applied 
to any reproduction or abstract thereof. Any authorized restrictive 
notices which the submitter places on this proposal shall also be 
strictly complied with. Disclosure of this proposal outside the 
Government for evaluation purposes shall be made only to the extent 
authorized by, and in accordance with, the procedures in DEAR 
subsection 915.207-70.

(End of Notice)

    (2) The notice at FAR 15.609(d) for unsolicited proposals shall be 
affixed to a cover sheet attached to each such proposal upon receipt by 
DOE. Use of the notice neither alters any obligation of the Government, 
nor diminishes any rights in the Government to use or disclose data or 
information.
    (f)(1) Normally, evaluations of proposals shall be performed only 
by employees of the Department of Energy. As used in this section, 
``proposals'' includes the offers in response to requests for 
proposals, sealed bids, program opportunity announcements, program 
research and development announcements, or any other method of 
solicitation where the review of proposals or bids is to be performed 
by other than peer review. In certain cases, in order to gain necessary 
expertise, employees of other agencies may be used in instances in 
which they will be available and committed during the period of 
evaluation. Evaluators or advisors who are not Federal employees, 
including employees of DOE management and operating contractors, may be 
used where necessary. Where such non-Federal employees are used as 
evaluators, they may only participate as members of technical 
evaluation committees. They may not serve as members of the Source 
Evaluation Board or equivalent board or committee.
    (2)(i) Pursuant to section 6002 of Pub. L. 103-355, a determination 
is required for every competitive procurement as to whether sufficient 
DOE personnel with the necessary training and capabilities are 
available to evaluate the proposals that will be received. This 
determination, discussed at FAR 37.204, shall be made in the memorandum 
appointing the technical evaluation committee by the Source Selection 
Official, in the case of Source Evaluation Board procurements, or by 
the Contracting Officer in all other procurements.
    (ii) Where it is determined such qualified personnel are not 
available within DOE but are available from other Federal agencies, a 
determination to that effect shall be made by the same officials in the 
same memorandum. Should such qualified personnel not be available, a 
determination to use non-Federal evaluators or advisors must be made in 
accordance with paragraph (f)(3) of this subsection.
    (3) The decision to employ non-Federal evaluators or advisors, 
including employees of DOE management and operating contractors, in 
Source Evaluation Board procurements must be made by the Source 
Selection Official with the concurrence of the Head of the Contracting 
Activity. In all other procurements, the decision shall be made by the 
senior program official or designee with the concurrence of the Head of 
the Contracting Activity. In a case where multiple solicitations are 
part of a single program and would call for the same resources for 
evaluation, a class determination to use non-Federal evaluators may be 
made by the DOE Procurement Executive.
    (4) Where such non-Federal evaluators or advisors are to be used, 
the solicitation shall contain a provision informing prospective 
offerors that non-Federal personnel may be used in the evaluation of 
proposals.
    (5) The nondisclosure agreement as it appears in paragraph (f)(6) 
of this subsection shall be signed before DOE furnishes a copy of the 
proposal to non-Federal evaluators or advisors, and care should be 
taken that the required handling notice described in paragraph (e) of 
this subsection is affixed to a cover sheet attached to the proposal 
before it is disclosed to the evaluator or advisor. In all instances, 
such persons will be required to comply with nondisclosure of 
information requirements and requirements involving Procurement 
Integrity, see FAR 3.104; with requirements to prevent the potential 
for personal conflicts of interest; or, where a non-Federal evaluator 
or advisor is acquired under a contract with an entity other than the 
individual, with requirements to prevent the potential for 
organizational conflicts of interest.
    (6) Non-Federal evaluators or advisors shall be required to sign 
the following agreement prior to having access to any proposal:

Nondisclosure Agreement

    Whenever DOE furnishes a proposal for evaluation, I, the 
recipient, agree to use the information contained in the proposal 
only for DOE evaluation purposes and to treat the information 
obtained in confidence. This requirement for confidential treatment 
does not apply to information obtained from any source, including 
the proposer, without restriction. Any notice or restriction placed 
on the proposal by either DOE or the originator of the proposal 
shall be conspicuously affixed to any reproduction or abstract 
thereof and its provisions strictly complied with. Upon completion 
of the evaluation, it is agreed all copies of the proposal and 
abstracts, if any, shall be returned to the DOE office which 
initially furnished the proposal for evaluation. Unless authorized 
by the Contracting Officer, I agree that I shall not contact the 
originator of the proposal concerning any aspect of its elements.

Recipient:-------------------------------------------------------------

Date:------------------------------------------------------------------

(End of Agreement)

    (g) The submitter of any proposal shall be provided notice adequate 
to afford an opportunity to take appropriate action before release of 
any information (data) contained therein pursuant to a request under 
the Freedom of Information Act (5 U.S.C. 552); and, time permitting, 
the submitter should be consulted to obtain assistance in determining 
the eligibility of the information (data) in question as an exemption 
under the Act. (See also Subpart 24.2, Freedom of Information Act.)
    5. Subpart 915.3, Source Selection, is added to read as follows:


915.3  Source selection.


915.305  Proposal evaluation. (DOE coverage--paragraph (d))

    (d) Personnel from DOE, other Government agencies, consultants, and 
contractors, including those who manage or operate Government-owned 
facilities, may be used in the evaluation process as evaluators or 
advisors when their services are necessary and available. When 
personnel outside the Government, including those of contractors who 
operate or manage Government-owned facilities, are to be used as 
evaluators or advisors, approval and nondisclosure procedures as 
required by 48 CFR (DEAR) 915.207-70 shall be followed and a notice of 
the use of non-Federal evaluators shall be included in the 
solicitation. In all instances, such personnel will be required to 
comply with DOE conflict of interest and nondisclosure requirements.

[[Page 10505]]

PART 927--PATENTS, DATA, AND COPYRIGHTS

    6. The authority citation for Part 927 continues to read as 
follows:

    Authority: Sec. 644 of the Department of Energy Organization 
Act, Pub. L. 95-91 (42 U.S.C. 7254); Sec. 148 of the Atomic Energy 
Act of 1954, as amended (42 U.S.C. 2168); Federal Nonnuclear Energy 
Research and Development Act of 1974, Sec. 9 (42 U.S.C. 5908); 
Atomic Energy Act of 1954, as amended, Sec. 152 (42 U.S.C. 2182); 
Department of Energy National Security and Military Applications of 
Nuclear Energy Authorization Act of 1987, as amended, Sec. 3131(a), 
(42 U.S.C. 7261a.)


927.300  [Amended]

    7. Section 927.300(b) is amended by replacing the phrase ``41 CFR 
9-9.109'' as it appears in the second sentence with ``10 CFR part 
784.''


927.303  [Amended]

    8. Subsection 927.303(b) is amended by inserting the phrase ``, 
pursuant to 10 CFR part 784,'' after ``advance waiver'' in the first 
sentence and after ``identified invention'' in the second sentence.


927.370  [Removed and reserved]

    9. Remove and reserve section 927.370.


927.401  [Removed]

    10. Section 927.401 is removed.
    11. In section 927.402-1, paragraphs (c) through (g) are removed, 
paragraph (h) is redesignated as paragraph (c) , and paragraph (b) is 
revised to read as follows:


927.402-1  General.

* * * * *
    (b) It is important to keep a clear distinction between contract 
requirements for the delivery of technical data and rights in technical 
data. The legal rights which the Government acquires in technical data 
in DOE contracts, other than management and operating contracts (see 
970.2705) and other contracts involving the production of data 
necessary for the management or operation of DOE facilities or a DOE 
site, are set forth in Rights in Data--General clause at 48 CFR 52.227-
14 as modified in accordance with 927.409 of this subpart. In those 
contracts involving the production of data necessary for the management 
or operation of DOE facilities or a DOE site, after consultation with 
Patent Counsel the clause at 970.5204-82 shall be used. However, those 
clauses do not obtain for the Government delivery of any data 
whatsoever. Rather, known requirements for the technical data to be 
delivered by the contractor shall be set forth as part of the contract. 
The Additional Technical Data Requirements clause at 48 CFR 52.227-16 
may be used along with the Rights in Data--General clause to enable the 
contracting officer to require the contractor to furnish additional 
technical data, the requirement for which was not known at the time of 
contracting. There is, however, a built-in limitation on the kind of 
technical data which a contractor may be required to deliver under 
either the contract or the Additional Technical Data Requirements 
clause. This limitation is found in the withholding provision of 
paragraph (g) of the Rights in Data--General clause at 48 CFR 52.227-
14, as amended at 48 CFR 927.409(a), which provides that the Contractor 
need not furnish limited rights data or restricted computer software. 
Unless Alternate II or III to the Rights in Data--General clause is 
used, it is specifically intended that the contractor may withhold 
limited rights data or restricted computer software even though a 
requirement for technical data specified in the contract or called for 
delivery pursuant to the Additional Technical Data Requirements clause 
would otherwise require the delivery of such data.


927.402-3  [Removed]

    12. Subsection 927.402-3 is removed.
    13. Section 927.403 is revised to read as follows:


927.403  Negotiations and deviations.

    Contracting officers shall contact Patent Counsel assisting their 
contracting activity or the Assistant General Counsel for Technology 
Transfer and Intellectual Property for assistance in selecting, 
negotiating, or approving appropriate data and copyright clauses in 
accordance with the procedures set forth in this subpart and 48 CFR 
part 27.4. In particular, contracting officers shall seek the prompt 
and timely advice of Patent Counsel regarding any situation not in 
conformance with this subpart and prescribed clauses, including the 
inclusion or modification of alternate paragraphs of the Rights in Data 
clause at 48 CFR 52.227-14, as amended at 48 CFR 927.409(a), the 
exclusion of specific items from said clause, the exclusion of the 
Additional Technical Data Requirements clause at 48 CFR 52.227-16, and 
the inclusion of any special provisions in a particular contract.
    14. Section 927.404 is added to read as follows:


927.404  Rights in Technical Data in Subcontracts. (DOE coverage--
paragraphs (g), (k), (l), and (m).)

    (g)(4) Contractors are required by paragraph (d)(3) of the clause 
at FAR 52.227-14, as modified pursuant to 48 CFR 927.409(a)(1), to 
acquire permission from DOE to assert copyright in any computer 
software first produced in the performance of the contract. This 
requirement reflects DOE's established software distribution program, 
recognized at FAR 27.404(g)(2), and the Department's statutory 
dissemination obligations. When a contractor requests permission to 
assert copyright in accordance with paragraph (d)(3) of the Rights in 
Data--General clause as prescribed for use at 48 CFR 927.409(a)(1), 
Patent Counsel shall predicate its decision on the considerations 
reflected in paragraph (e) of the clause at 970.5204-82 Rights in 
Data--Technology Transfer.
    (k) Subcontracts. (1)(i) It is the responsibility of prime 
contractors and higher tier subcontractors, in meeting their 
obligations with respect to contract data, to obtain from their 
subcontractor the rights in, access to, and delivery of such data on 
behalf of the Government. Accordingly, subject to the policy set forth 
in this subpart, and subject to the approval of the contracting 
officer, where required, selection of appropriate technical data 
provisions for subcontracts is the responsibility of the prime 
contractors or higher-tier subcontractors. In many, but not all 
instances, use of the Rights in Technical Data clause of FAR 52.227-14, 
as modified pursuant to 48 CFR 927.409(a)(1), in a subcontract will 
provide for sufficient Government rights in and access to technical 
data. The inspection rights afforded in Alternate V of that clause 
normally should be obtained only in first-tier subcontracts having as a 
purpose the conduct of research, development, or demonstration work or 
the furnishing of supplies for which there are substantial technical 
data requirements as reflected in the prime contract.
    (ii) If a subcontractor refuses to accept technical data provisions 
affording rights in and access to technical data on behalf of the 
Government, the contractor shall so inform the contracting officer in 
writing and not proceed with the award of the subcontract without 
written authorization of the contracting officer.
    (iii) In prime contracts (or higher-tier subcontracts) which 
contain the Additional Technical Data Requirements clause at FAR 
52.227-16, it is the further responsibility of the contractor (or 
higher-tier subcontractor) to determine whether inclusion of such

[[Page 10506]]

clause in a subcontract is required to satisfy technical data 
requirements of the prime contract (or higher-tier subcontract).
    (2) As is the case for DOE in its determination of technical data 
requirements, the Additional Technical Data Requirements clause at FAR 
52.227-16 should not be used at any subcontracting tier where the 
technical data requirements are fully known. Normally, the clause will 
be used only in subcontracts having as a purpose the conduct of 
research, development, or demonstration work. Prime contractors and 
higher-tier subcontractors shall not use their power to award 
subcontracts as economic leverage to acquire rights in the 
subcontractor's limited rights data or restricted computer software for 
their private use, and they shall not acquire rights to limited rights 
data or restricted computer software on behalf of the Government for 
standard commercial items without the prior approval of Patent Counsel.
    (l) Contractor licensing. In many contracting situations the 
achievement of DOE's objectives would be frustrated if the Government, 
at the time of contracting, did not obtain on behalf of responsible 
third parties and itself limited license rights in and to limited 
rights data or restricted computer software or both necessary for the 
practice of subject inventions or data first produced or delivered in 
the performance of the contract. Where the purpose of the contract is 
research, development, or demonstration, contracting officers should 
consult with program officials and Patent Counsel to consider whether 
such rights should be acquired. No such rights should be obtained from 
a small business or non-profit organization, unless similar rights in 
background inventions of the small business or non-profit organization 
have been authorized in accordance with 35 U.S.C. 202(f). In all cases 
when the contractor has agreed to include a provision assuring 
commercial availability of background patents, consideration should be 
given to securing for the Government and responsible third parties at 
reasonable royalties and under appropriate restrictions, co-extensive 
license rights for data which are limited rights data and restricted 
computer software. When such license rights are deemed necessary, the 
Rights in Data-General clause at FAR 52.227-14 should be supplemented 
by the addition of Alternate VI as provided at 48 CFR 952.227-14. 
Alternate VI will normally be sufficient to cover limited rights data 
and restricted computer software for items and processes that were used 
in the contract and are necessary in order to insure widespread 
commercial use or practical utilization of a subject of the contract. 
The expression ``subject of the contract'' is intended to limit the 
licensing required in Alternate VI to the fields of technology 
specifically contemplated in the contract effort and may be replaced by 
a more specific statement of the fields of technology intended to be 
covered in the manner described in the patent clause at 48 CFR 952.227-
13 pertaining to ``Background Patents.'' Where, however, limited rights 
data and restricted computer software cover the main purpose or basic 
technology of the research, development, or demonstration effort of the 
contract, rather than subcomponents, products, or processes which are 
ancillary to the contract effort, the limitations set forth in 
subparagraphs (k)(1) through (k)(4) of Alternate VI of 48 CFR 952.227-
14 should be modified or deleted. Paragraph (k) of 48 CFR 952.227-14 
further provides that limited rights data or restricted computer 
software may be specified in the contract as being excluded from or not 
subject to the licensing requirements thereof. This exclusion can be 
implemented by limiting the applicability of the provisions of 
paragraph (k) of 48 CFR 952.227-14 to only those classes or categories 
of limited rights data and restricted computer software determined as 
being essential for licensing. Although contractor licensing may be 
required under paragraph (k) of 48 CFR 952.227-14, the final resolution 
of questions regarding the scope of such licenses and the terms 
thereof, including provisions for confidentiality, and reasonable 
royalties, is then left to the negotiation of the parties.
    (m) Access to restricted data. In contracts involving access to 
certain categories of DOE-owned Category C-24 restricted data, as set 
forth in 10 CFR part 725, DOE has reserved the right to receive 
reasonable compensation for the use of its inventions and discoveries, 
including its related data and technology. Accordingly, in contracts 
where access to such restricted data is to be provided to contractors, 
Alternate VII shall be incorporated into the rights in technical data 
clause of the contract. In addition, in any other types of contracting 
situations in which the contractor may be given access to restricted 
data, appropriate limitations on the use of such data must be 
specified.
    15. Subsection 927.404-70 is added to read as follows:


927.404-70  Statutory Programs.

    Occasionally, Congress enacts legislation that authorizes or 
requires the Department to protect from public disclosure specific data 
first produced in the performance of the contract. Examples of such 
programs are ``the Metals Initiative'' and section 3001(d) of the 
Energy Policy Act. In such cases DOE Patent Counsel is responsible for 
providing the appropriate contractual provisions for protecting the 
data in accordance with the statute. Generally, such clauses will be 
based upon the Rights in Data-General clause prescribed for use at 48 
CFR 927.409(a) with appropriate modifications to define and protect the 
``protected data'' in accordance with the applicable statute. When 
contracts under such statutes are to be awarded, contracting officers 
must acquire from Patent Counsel the appropriate contractual 
provisions. Additionally, the contracting officer must consult with DOE 
program personnel and Patent Counsel to identify data first produced in 
the performance of the contract that will be recognized by the parties 
as protected data and what data will be made available to the public 
notwithstanding the statutory authority to withhold the data from 
public dissemination.
    16. Section 927.408 is added to read as follows:


927.408  Cosponsored research and development activities.

    Because of the Department of Energy's statutory duties to 
disseminate data first produced under its contracts for research, 
development, and demonstration, the provisions of FAR 27.408 do not 
apply to cosponsored or cost shared contracts.
    17. Section 927.409 is added to read as follows:


927.409  Solicitation provisions and contract clauses. (DOE coverage-
paragraphs (a), (h), (s), and (t)).

    (a)(1) The contracting officer shall insert the clause at FAR 
52.227-14, Rights in Data-General, substituting the following paragraph 
(a) and including the following paragraph (d)(3) and Alternate V in 
solicitations and contracts if it is contemplated that data will be 
produced, furnished, or acquired under the contract; except contracting 
officers are authorized to use Alternate IV rather than paragraph 
(d)(3) in contracts for basic or applied research with educational 
institutions except where software is specified for delivery or except 
where other special circumstances exist:

    (a) Definitions.

[[Page 10507]]

    (1) Computer data bases, as used in this clause, means a 
collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term 
does not include computer software.
    (2) Computer software, as used in this clause, means (i) 
computer programs which are data comprising a series of 
instructions, rules, routines, or statements, regardless of the 
media in which recorded, that allow or cause a computer to perform a 
specific operation or series of operations and (ii) data comprising 
source code listings, design details, algorithms, processes, flow 
charts, formulae, and related material that would enable the 
computer program to be produced, created, or compiled. The term does 
not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The 
term includes technical data and computer software. For the purposes 
of this clause, the term does not include data incidental to the 
administration of this contract, such as financial, administrative, 
cost and pricing, or management information.
    (4) Form, fit, and function data, as used in this clause, means 
data relating to items, components, or processes that are sufficient 
to enable physical and functional interchangeability, as well as 
data identifying source, size, configuration, mating, and attachment 
characteristics, functional characteristics, and performance 
requirements; except that for computer software it means data 
identifying source, functional characteristics, and performance 
requirements but specifically excludes the source code, algorithm, 
process, formulae, and flow charts of the software.
    (5) Limited rights data, as used in this clause, means data, 
other than computer software, developed at private expense that 
embody trade secrets or are commercial or financial and confidential 
or privileged. The Government's rights to use, duplicate, or 
disclose limited rights data are as set forth in the Limited Rights 
Notice of subparagraph (g)(2) of this section if included in this 
clause.
    (6) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or 
privileged; or is published copyrighted computer software, including 
minor modifications of any such computer software. The Government's 
rights to use, duplicate, or disclose restricted computer software 
are as set forth in the Restricted Rights Notice of subparagraph 
(g)(3) of this section if included in this clause.
    (7) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, 
but does include manuals and instructional materials and technical 
data formatted as a computer data base.
    (8) Unlimited rights, as used in this clause, means the rights 
of the Government to use, disclose, reproduce, prepare derivative 
works, distribute copies to the public, including by electronic 
means, and perform publicly and display publicly, in any manner, 
including by electronic means, and for any purpose whatsoever, and 
to have or permit others to do so.
* * * * *
    (d)(3) The Contractor agrees not to assert copyright in computer 
software first produced in the performance of this contract without 
prior written permission of the DOE Patent Counsel assisting the 
contracting activity. When such permission is granted, the Patent 
Counsel shall specify appropriate terms, conditions, and submission 
requirements to assure utilization, dissemination, and 
commercialization of the data. The Contractor, when requested, shall 
promptly deliver to Patent Counsel a duly executed and approved 
instrument fully confirmatory of all rights to which the Government 
is entitled.

    (2) However, rights in data in these specific situations will be 
treated as described, where the contract is--
    (i) For the production of special works of the type set forth in 
FAR 27.405(a), but the clause at FAR 52.227-14, Rights in Data-General, 
shall be included in the contract and made applicable to data other 
than special works, as appropriate (See paragraph (i) of FAR 27.409);
    (ii) For the acquisition of existing data works, as described in 
FAR 27.405(b) (See paragraph (j) of FAR 27.409);
    (iii) To be performed outside the United States, its possessions, 
and Puerto Rico, in which case agencies may prescribe different clauses 
(See paragraph (n) of FAR 27.409);
    (iv) For architect-engineer services or construction work, in which 
case contracting officers shall utilize the clause at FAR 52.227-17, 
Rights in Data-Special Works;
    (v) A Small Business Innovation Research contract (See paragraph 
(l) of FAR 27.409);
    (vi) For management and operation of a DOE facility (See 970.2705) 
or other contracts involving the production of data necessary for the 
management or operation of DOE facilities or a DOE site, after 
consultation with Patent Counsel (See 927.402-1(b)); or
    (vii) Awarded pursuant to a statute expressly providing authority 
for the protection of data first produced thereunder from disclosure or 
dissemination. (See 927.404-70).
    (h) The contracting officer shall insert the clause at FAR 52.227-
16, Additional Data Requirements, in solicitations and contracts 
involving experimental, developmental, research, or demonstration work 
(other than basic or applied research to be performed solely by a 
university or college where the contract amount will be $500,000 or 
less) unless all the requirements for data are believed to be known at 
the time of contracting and specified in the contract. See FAR 
27.406(b). This clause may also be used in other contracts when 
considered appropriate.
* * * * *
    (s) Contracting officers shall incorporate the solicitation 
provision at FAR 52.227-23, Rights to Proposal Data (Technical), in all 
requests for proposals.
    (t) Contracting officers shall include the solicitation provision 
at 952.227-84 in all solicitations involving research, developmental, 
or demonstration work.

Subpart 927.70--[Removed and Reserved]

    18. Subpart 927.70 consisting of 927.7000 through 927.7005 is 
removed and reserved.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    19. The authority citation for Part 952 continues to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).


952.227-13  [Amended]

    20. Subsection 952.227-13 is amended in paragraph (a) of the clause 
by inserting the sentence ``See 10 CFR part 784.'' at the end of the 
definition of ``DOE patent waiver regulations'' and in subparagraph 
(c)(1)(ii) introductory text of the clause by inserting ``(10 CFR part 
784)'' after the phrase ``patent waiver regulations''.
    21. Subsection 952.227-14 of Part 952 is added to read as follows:
    952.227-14  Rights in data-general. (DOE coverage-alternates VI and 
VII)

Alternate VI (Feb 1998)

    As prescribed at 48 CFR 927.404(l) insert Alternate VI to 
require the contractor to license data regarded as limited rights 
data or restricted computer software to the Government and third 
parties at reasonable royalties upon request by the Department of 
Energy.
    (k) Contractor Licensing. Except as may be otherwise specified 
in this contract as data not subject to this paragraph, the 
contractor agrees that upon written application by DOE, it will 
grant to the Government and responsible third parties, for purposes 
of practicing a subject of this contract, a nonexclusive license in 
any limited rights data or restricted computer software on terms and 
conditions reasonable under the circumstances including appropriate 
provisions for confidentiality; provided, however, the contractor 
shall not be obliged to license any such data if the contractor

[[Page 10508]]

demonstrates to the satisfaction of the Secretary of Energy or 
designee that:
    (1) Such data are not essential to the manufacture or practice 
of hardware designed or fabricated, or processes developed, under 
this contract;
    (2) Such data, in the form of results obtained by their use, 
have a commercially competitive alternate available or readily 
introducible from one or more other sources;
    (3) Such data, in the form of results obtained by their use, are 
being supplied by the contractor or its licensees in sufficient 
quantity and at reasonable prices to satisfy market needs, or the 
contractor or its licensees have taken effective steps or within a 
reasonable time are expected to take effective steps to so supply 
such data in the form of results obtained by their use; or
    (4) Such data, in the form of results obtained by their use, can 
be furnished by another firm skilled in the art of manufacturing 
items or performing processes of the same general type and character 
necessary to achieve the contract results.

(End of Alternate)

Alternate VII (Feb 1998)

    As prescribed in 48 CFR 927.404(m) make the change described in 
Alternate VII to limit the contractor's use of DOE restricted data.
    Insert the parenthetical phrase ``(except Restricted Data in 
category C-24, 10 CFR part 725, in which DOE has reserved the right 
to receive reasonable compensation for the use of its inventions and 
discoveries, including related data and technology).'' after the 
phrase ``data first produced or specifically used by the Contractor 
in the performance of this contract'' in paragraph (b)(2)(i) of the 
clause at FAR 52.227-14.

(End of Alternate)


952.227-73 through 952.227-83  [Removed]

    22. In Part 952, subsections 952.227-73, 952.227-75, 952.227-76, 
952.227-77, 952.227-78, 952.227-79, and 952.227-83 are removed.
    23. Subsection 952.227-84 is revised to read as follows:


952.227-84  Notice of right to request patent waiver.

    Include this provision in all appropriate solicitations in 
accordance with 48 CFR 927.409(t).

Right to Request Patent Waiver (Feb 1998)

    Offerors have the right to request a waiver of all or any part 
of the rights of the United States in inventions conceived or first 
actually reduced to practice in performance of the contract that may 
be awarded as a result of this solicitation, in advance of or within 
30 days after the effective date of contracting. Even where such 
advance waiver is not requested or the request is denied, the 
contractor will have a continuing right under the contract to 
request a waiver of the rights of the United States in identified 
inventions, i.e., individual inventions conceived or first actually 
reduced to practice in performance of the contract. Domestic small 
businesses and domestic nonprofit organizations normally will 
receive the patent rights clause at DEAR 952.227-11 which permits 
the contractor to retain title to such inventions, except under 
contracts for management or operation of a Government-owned research 
and development facility or under contracts involving exceptional 
circumstances or intelligence activities. Therefore, small 
businesses and nonprofit organizations normally need not request a 
waiver. See the patent rights clause in the draft contract in this 
solicitation. See DOE's patent waiver regulations at 10 CFR part 
784.

(End of Provision)

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    24. The authority citation for Part 970 continues to read:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act, Pub. 
L. 95-91 (42 U.S.C. 7254).

    25. Section 970.2705 is revised to read as follows:


970.2705  Rights in data--general.

    (a) Rights in data relating to the performance of the contract and 
to all facilities are significant in assuring continuity of the 
management and operation of DOE facilities. It is crucial in assuring 
DOE's continuing ability to perform its statutory missions that DOE 
obtain rights to all data produced or specifically used by its 
management and operating contractors and appropriate subcontractors. In 
order to obtain the necessary rights in technical data, DOE contracting 
officers shall assure that management and operating contracts contain 
either the Rights in Data clause at 48 CFR 970.5204-82 or the clause at 
48 CFR 970.5204-83. Selection of the appropriate clause is dependent 
upon whether technology transfer is a mission of the management and 
operating contract pursuant to the National Competitiveness Technology 
Transfer Act of 1989 (Pub. L. 101-189, as amended). If technology 
transfer is not a mission of the management and operating contractor, 
the clause at 48 CFR 970.5204-82 will be used. In those instances in 
which technology transfer is a mission, the clause at 48 CFR 970.5204-
83 will be used.
    (b) Employees of the management and operating contractor may not be 
used to assist in the preparation of a proposal or bid for the 
performance of services, which are similar or related to those being 
performed under the contract, by the contractor or its parent or 
affiliate organization for commercial customers unless the employee has 
been separated from work under the DOE contract for such period as the 
Head of the Contracting Activity or designee shall have directed.
    26. Revise Section 970.2706 as follows:


970.2706  Rights in technical data--procedures.

    (a) The clauses at 48 CFR 970.5204-82 and 48 CFR 970.5204-83 both 
provide generally for Government ownership and for unlimited rights in 
the Government for all data first produced in the performance of the 
contract and unlimited rights in data specifically used in the 
performance of the contract. Both clauses provide that, subject to 
patent, security, and other provisions of the contract, the contractor 
may use contract data for its private purposes. The contractor, under 
either clause, must treat any data furnished by DOE or acquired from 
other Government agencies or private entities in the performance of 
their contracts in accordance with any restrictive legends contained 
therein.
    (b) Since both clauses secure access to and, if requested, delivery 
of technical data used in the performance of the contract, there is 
generally no need to use the Additional Technical Data Requirements 
clause at FAR 52.227-16 in the management and operating contract.
    (c)(1) Paragraph (d) of the clause at 48 CFR 970.5204-82 and 
paragraph (f) of the clause at 48 CFR 970.5204-83 provide for the 
inclusion in subcontracts of the Rights in Technical Data--General 
clause at FAR 52.227-14, with Alternate V, and modified in accordance 
with DEAR 927.409. Those clauses also provide for the inclusion in 
appropriate subcontracts Alternates II, III, and IV to the clause at 
FAR 52.227-14 with DOE's prior approval and the inclusion of the 
Additional Technical Data Requirements clause at FAR 52.227-16 in all 
subcontracts for research, development, or demonstration and all other 
subcontracts having special requirements for the production or delivery 
of data. In subcontracts, including subcontracts for related support 
services, involving the design or operation of any plants or facilities 
or specially designed equipment for such plants or facilities that are 
managed or operated by the contractor under its contract with DOE, the 
management and operating contractor shall use the Rights in Data--
Facilities clause at 48 CFR 970.5204-82.
    (2) Where, however, a subcontract is to be awarded by the 
management and operating contractor in connection with a program, as 
discussed at 927.404-70,

[[Page 10509]]

which provides statutory authority to protect from public disclosure, 
data first produced under contracts awarded pursuant to the program, 
contracting officers shall ensure that the M&O contractor includes in 
that subcontract the rights in data clause provided by DOE Patent 
Counsel, consistent with any accompanying guidance.
    (3) Management and operating contractors and higher-tier 
subcontractors shall not use their power to award subcontracts as 
economic leverage to acquire rights in a subcontractor's limited rights 
data or restricted computer software for their private use, nor may 
they acquire rights in a subcontractor's limited rights data or 
restricted computer software except through the use of Alternate II or 
III to the clause at FAR 52.227-14, respectively, without the prior 
approval of DOE Patent Counsel.
    (d)(1) Paragraphs (e) and (f) of the clause at 48 CFR 970.5204-82 
and paragraphs (g) and (h) of the clause at 48 CFR 970.5204-83 provide 
for the contractor's granting a nonexclusive license in any limited 
rights data and restricted computer software specifically used in 
performance of the contract.
    (2) In certain instances the objectives of DOE would be frustrated 
if the Government did not obtain, at the time of contracting, limited 
license rights on behalf of responsible third parties and the 
Government in and to limited rights data or restricted computer 
software or both necessary for the practice of subject inventions or 
data first produced or delivered in the performance of the contract. 
This situation may arise in the performance of management and operating 
contracts and contracts for the management or operation of a DOE 
facility or site. Contracting officers should consult with program 
officials and Patent Counsel. No such rights should be obtained from a 
small business or non-profit organization, unless similar rights in 
background inventions of the small business or non-profit organization 
have been authorized in accordance with 35 U.S.C. 202(f). Where such a 
background license is in DOE's interest, a provision that provides 
substantially as Alternate VI at 48 CFR 952.227-14 should be added to 
the appropriate clause, 48 CFR 970.5204-82 or 48 CFR 970.5204-83.
    (e) The Rights in Data-Technology Transfer clause at 48 CFR 
970.5204-83 differs from the clause at 48 CFR 970.5204-82 in the 
context of its more detailed treatment of copyright. In management and 
operating contracts that have technology transfer as a mission, the 
right to assert copyright in data first produced under the contract 
will be a valuable right, and commercialization of such data, including 
computer software, will assist the M&O contractor in advancing the 
technology transfer mission of the contract. The clause at 48 CFR 
970.5204-83 provides for DOE approval of DOE's taking a limited 
copyright license for a period of five years, and, in certain rare 
cases, specified longer periods in order to contribute to 
commercialization of the data.
    (f) Contracting officers should consult with Patent Counsel to 
assure that requirements regarding royalties and conflicts of interest 
associated with asserting copyright in data first produced under the 
contract are appropriately addressed in the Technology Transfer Mission 
clause of the management and operating contract. Where it is not 
otherwise clear which DOE program funded the development of a computer 
software package, such as where the development was funded out of a 
contractor's overhead account, the DOE program which was the primary 
source of funding for the entire contract is deemed to have 
administrative responsibility. This issue may arise, among others, in 
the decision whether to grant the contractor permission to assert 
copyright. See paragraph (e) of the Rights in Data-Technology Transfer 
clause at 970.5204-83.
    (g) In management and operating contracts involving access to DOE-
owned Category C-24 restricted data, as set forth in 10 CFR part 725, 
DOE has reserved the right to receive reasonable compensation for the 
use of its inventions and discoveries, including its related restricted 
data and technology. Alternate I to each clause shall be used where 
access to Category C-24 restricted data is contemplated in the 
performance of a contract.
    27. Section 970.2707 is added to read as follows:


970.2707  Rights in data clauses.

    (a) Contracting officers shall insert the clause at 48 CFR 
970.5204-82, Rights in Data-Facilities, in management and operating 
contracts which do not contain the clause at 48 CFR 970.5204-40, 
Technology Transfer Mission.
    (b) Contracting officers shall insert the clause at 970.5204-83, 
Rights in Data-Technology Transfer, in management and operating 
contracts which contain the clause at 970.5204-40, Technology Transfer 
Mission.
    (c) In accordance with 48 CFR 970.2706(g), in contracts where 
access to Category C-24 restricted data, as set forth in 10 CFR part 
725, is to be provided to contractors, Contracting Officers shall 
incorporate Alternate I of the appropriate rights in data clause 
prescribed in paragraph (a) or (b) of this section.
    28. Subsection 970.5204-82 is added to read as follows:


970.5204-82 Rights in data--facilities.

    Insert the following clause in the management and operating 
contracts in accordance with 48 CFR 970.2707.

Rights in Data--Facilities (Feb 1998)

    (a) Definitions.
    (1) Computer data bases, as used in this clause, means a 
collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term 
does not include computer software.
    (2) Computer software, as used in this clause, means (i) 
computer programs which are data comprising a series of 
instructions, rules, routines, or statements, regardless of the 
media in which recorded, that allow or cause a computer to perform a 
specific operation or series of operations and (ii) data comprising 
source code listings, design details, algorithms, processes, flow 
charts, formulae, and related material that would enable the 
computer program to be produced, created, or compiled. The term does 
not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The 
term includes technical data and computer software. The term 
``data'' does not include data incidental to the administration of 
this contract, such as financial, administrative, cost and pricing, 
or management information.
    (4) Limited rights data, as used in this clause, means data, 
other than computer software, developed at private expense that 
embody trade secrets or are commercial or financial and confidential 
or privileged. The Government's rights to use, duplicate, or 
disclose limited rights data are as set forth in the Limited Rights 
Notice of subparagraph (e) of this clause.
    (5) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or 
privileged; or is published copyrighted computer software, including 
minor modifications of any such computer software. The Government's 
rights to use, duplicate, or disclose restricted computer software 
are as set forth in the Restricted Rights Notice of paragraph (f) of 
this clause.
    (6) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, 
but does include manuals and instructional materials and technical 
data formatted as a computer data base.
    (7) Unlimited rights, as used in this clause, means the rights 
of the Government to use, disclose, reproduce, prepare derivative 
works, distribute copies to the public, including by electronic 
means, and perform publicly and display publicly, in any manner, 
including by electronic means, and

[[Page 10510]]

for any purpose whatsoever, and to have or permit others to do so.
    (b) Allocation of Rights. 
    (1) The Government shall have:
    (i) Ownership of all technical data and computer software first 
produced in the performance of this Contract;
    (ii) Unlimited rights in technical data and computer software 
specifically used in the performance of this Contract, except as 
provided herein regarding copyright, limited rights data, or 
restricted computer software, or except for other data specifically 
protected by statute for a period of time or, where, approved by 
DOE, appropriate instances of the DOE Work for Others Program;
    (iii) The right to inspect technical data and computer software 
first produced or specifically used in the performance of this 
Contract at all reasonable times. The Contractor shall make 
available all necessary facilities to allow DOE personnel to perform 
such inspection;
    (iv) The right to have all technical data and computer software 
first produced or specifically used in the performance of this 
Contract delivered to the Government or otherwise disposed of by the 
Contractor, either as the Contracting Officer may from time to time 
direct during the progress of the work or in any event as the 
Contracting Officer shall direct upon completion or termination of 
this Contract. The Contractor agrees to leave a copy of such data at 
the facility or plant to which such data relate, and to make 
available for access or to deliver to the Government such data upon 
request by the Contracting Officer. If such data are limited rights 
data or restricted computer software, the rights of the Government 
in such data shall be governed solely by the provisions of paragraph 
(e) of this clause (``Rights in Limited Rights Data'') or paragraph 
(f) of this clause (``Rights in Restricted Computer Software''); and
    (v) The right to remove, cancel, correct, or ignore any markings 
not authorized by the terms of this Contract on any data furnished 
hereunder if, in response to a written inquiry by DOE concerning the 
propriety of the markings, the Contractor fails to respond thereto 
within 60 days or fails to substantiate the propriety of the 
markings. In either case DOE will notify the Contractor of the 
action taken.
    (2) The Contractor shall have:
    (i) The right to withhold limited rights data and restricted 
computer software unless otherwise provided in accordance with the 
provisions of this clause; and
    (ii) The right to use for its private purposes, subject to 
patent, security or other provisions of this Contract, data it first 
produces in the performance of this Contract, except for data in 
DOE's Uranium Enrichment Technology, including diffusion, 
centrifuge, and atomic vapor laser isotope separation, provided the 
data requirements of this Contract have been met as of the date of 
the private use of such data.
    (3) The Contractor agrees that for limited rights data or 
restricted computer software or other technical, business or 
financial data in the form of recorded information which it receives 
from, or is given access to by, DOE or a third party, including a 
DOE Contractor or subcontractor, and for technical data or computer 
software it first produces under this Contract which is authorized 
to be marked by DOE, the Contractor shall treat such data in 
accordance with any restrictive legend contained thereon.
    (c) Copyrighted Material.
    (1) The Contractor shall not, without prior written 
authorization of the Patent Counsel, assert copyright in any 
technical data or computer software first produced in the 
performance of this contract. To the extent such authorization is 
granted, the Government reserves for itself and others acting on its 
behalf, a nonexclusive, paid-up, irrevocable, world-wide license for 
Governmental purposes to publish, distribute, translate, duplicate, 
exhibit, and perform any such data copyrighted by the Contractor.
    (2) The Contractor agrees not to include in the technical data 
or computer software delivered under the contract any material 
copyrighted by the Contractor and not to knowingly include any 
material copyrighted by others without first granting or obtaining 
at no cost a license therein for the benefit of the Government of 
the same scope as set forth in paragraph (c)(1) of this clause. If 
the Contractor believes that such copyrighted material for which the 
license cannot be obtained must be included in the technical data or 
computer software to be delivered, rather than merely incorporated 
therein by reference, the Contractor shall obtain the written 
authorization of the Contracting Officer to include such material in 
the technical data or computer software prior to its delivery.
    (d) Subcontracting.
    (1) Unless otherwise directed by the Contracting Officer, the 
Contractor agrees to use in subcontracts in which technical data or 
computer software is expected to be produced or in subcontracts for 
supplies that contain a requirement for production or delivery of 
data in accordance with the policy and procedures of 48 CFR (FAR) 
Subpart 27.4 as supplemented by 48 CFR (DEAR) 927.401 through 
927.409, the clause entitled ``Rights in Data-General'' at 48 CFR 
52.227-14 modified in accordance with 927.409(a) and including 
Alternate V. Alternates II through IV of that clause may be included 
as appropriate with the prior approval of DOE Patent Counsel, and 
the Contractor shall not acquire rights in a subcontractor's limited 
rights data or restricted computer software, except through the use 
of Alternates II or III, respectively, without the prior approval of 
DOE Patent Counsel. The clause at FAR 52.227-16, Additional Data 
Requirements, shall be included in subcontracts in accordance with 
DEAR 927.409(h). The contractor shall use instead the Rights in 
Data-Facilities clause at DEAR 970.5204-82 in subcontracts, 
including subcontracts for related support services, involving the 
design or operation of any plants or facilities or specially 
designed equipment for such plants or facilities that are managed or 
operated under its contract with DOE.
    (2) It is the responsibility of the Contractor to obtain from 
its subcontractors technical data and computer software and rights 
therein, on behalf of the Government, necessary to fulfill the 
Contractor's obligations to the Government with respect to such 
data. In the event of refusal by a subcontractor to accept a clause 
affording the Government such rights, the Contractor shall:
    (i) Promptly submit written notice to the Contracting Officer 
setting forth reasons or the subcontractor's refusal and other 
pertinent information which may expedite disposition of the matter, 
and
    (ii) Not proceed with the subcontract without the written 
authorization of the Contracting Officer.
    (3) Neither the Contractor nor higher-tier subcontractors shall 
use their power to award subcontracts as economic leverage to 
acquire rights in a subcontractor's limited rights data or 
restricted computer software for their private use.
    (e) Rights in Limited Rights Data.
    Except as may be otherwise specified in this Contract as data 
which are not subject to this paragraph, the Contractor agrees to 
and does hereby grant to the Government an irrevocable, 
nonexclusive, paid-up license by or for the Government, in any 
limited rights data of the Contractor specifically used in the 
performance of this Contract, provided, however, that to the extent 
that any limited rights data when furnished or delivered is 
specifically identified by the Contractor at the time of initial 
delivery to the Government or a representative of the Government, 
such data shall not be used within or outside the Government except 
as provided in the ``Limited Rights Notice'' set forth. All such 
limited rights data shall be marked with the following ``Limited 
Rights Notice'':

Limited Rights Notice

    These data contain ``limited rights data,'' furnished under 
Contract No. ______________ with the United States Department of 
Energy which may be duplicated and used by the Government with the 
express limitations that the ``limited rights data'' may not be 
disclosed outside the Government or be used for purposes of 
manufacture without prior permission of the Contractor, except that 
further disclosure or use may be made solely for the following 
purposes:
    (a) Use (except for manufacture) by support services contractors 
within the scope of their contracts;
    (b) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (c) This ``limited rights data'' may be disclosed to other 
contractors participating in the Government's program of which this 
Contract is a part for information or use (except for manufacture) 
in connection with the work performed under their contracts and 
under the restriction that the ``limited rights data'' be retained 
in confidence and not be further disclosed;
    (d) This ``limited rights data'' may be used by the Government 
or others on its behalf for emergency repair or overhaul work under 
the restriction that the ``limited rights data'' be retained in 
confidence and not be further disclosed; and
    (e) Release to a foreign government, or instrumentality thereof, 
as the interests of the

[[Page 10511]]

United States Government may require, for information or evaluation, 
or for emergency repair or overhaul work by such government.
    This Notice shall be marked on any reproduction of this data in 
whole or in part.

(End of Notice)

    (f) Rights in Restricted Computer Software.
    (1) Except as may be otherwise specified in this Contract as 
data which are not subject to this paragraph, the Contractor agrees 
to and does hereby grant to the Government an irrevocable, 
nonexclusive, paid-up, license by or for the Government, in any 
restricted computer software of the Contractor specifically used in 
the performance of this Contract, provided, however, that to the 
extent that any restricted computer software when furnished or 
delivered is specifically identified by the Contractor at the time 
of initial delivery to the Government or a representative of the 
Government, such data shall not be used within or outside the 
Government except as provided in the ``Restricted Rights Notice'' 
set forth below. All such restricted computer software shall be 
marked with the following ``Restricted Rights Notice'':

Restricted Rights Notice-Long Form

    (a) This computer software is submitted with restricted rights 
under Department of Energy Contract No. ______________ . It may not 
be used, reproduced, or disclosed by the Government except as 
provided in paragraph (b) of this notice.
    (b) This computer software may be:
    (1) Used or copied for use in or with the computer or computers 
for which it was acquired, including use at any Government 
installation to which such computer or computers may be transferred;
    (2) Used, copied for use, in a backup or replacement computer if 
any computer for which it was acquired is inoperative or is 
replaced;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that only the portions of the derivative software 
consisting of the restricted computer software are to be made 
subject to the same restricted rights; and
    (5) Disclosed to and reproduced for use by contractors under a 
service contract (of the type defined in FAR 37.101) in accordance 
with subparagraphs (b)(1) through (4) of this Notice, provided the 
Government makes such disclosure or reproduction subject to these 
restricted rights.
    (c) Notwithstanding the foregoing, if this computer software has 
been published under copyright, it is licensed to the Government, 
without disclosure prohibitions, with the rights set forth in the 
restricted rights notice above.
    (d) This Notice shall be marked on any reproduction of this 
computer software, in whole or in part.

(End of Notice)

    (2) Where it is impractical to include the Restricted Rights 
Notice on restricted computer software, the following short-form 
Notice may be used in lieu thereof:

Restricted Rights Notice--Short Form

    Use, reproduction, or disclosure is subject to restrictions set 
forth in the Long Form Notice of DOE Contract No. ______________ 
with (name of Contractor ).

(End of Notice)

    (3) If the software is embedded, or if it is commercially 
impractical to mark it with human readable text, then the symbol R 
and the clause date (mo/yr), in brackets or a box, a [R-mo/yr], may 
be used. This will be read to mean restricted computer software, 
subject to the rights of the Government as described in the Long 
Form Notice, in effect as of the date indicated next to the symbol. 
The symbol shall not be used to mark human readable material. In the 
event this Contract contains any variation to the rights in the Long 
Form Notice, then the contract number must also be cited.
    (4) If restricted computer software is delivered with the 
copyright notice of 17 U.S.C. 401, the software will be presumed to 
be published copyrighted computer software licensed to the 
Government without disclosure prohibitions and with unlimited 
rights, unless the Contractor includes the following statement with 
such copyright notice ``Unpublished-rights reserved under the 
Copyright Laws of the United States.''
    (g) Relationship to patents. Nothing contained in this clause 
creates or is intended to imply a license to the Government in any 
patent or is intended to be construed as affecting the scope of any 
licenses or other rights otherwise granted to the Government under 
any patent.

(End of Clause)

    Alternate I (Feb 1998): In accordance with 970.2706(g), insert 
the phrase ``and except Restricted Data in category C-24, 10 CFR 
part 725, in which DOE has reserved the right to receive reasonable 
compensation for the use of its inventions and discoveries, 
including related data and technology'' after ``laser isotope 
separation'' and before the comma in paragraph (b)(2)(ii) of the 
clause at 970.5204-83, as appropriate.

(End of Alternate)

    29. Subsection 970.5204-83 is added to read as follows:


970.5204-83  Rights in Data-Technology Transfer.

    Insert the following clause in management and operating contracts 
in accordance with 48 CFR 970.2707.

Rights in Data-Technology Transfer (Feb 1998)

    (a) Definitions.
    (1) Computer data bases, as used in this clause, means a 
collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term 
does not include computer software.
    (2) Computer software, as used in this clause, means (i) 
computer programs which are data comprising a series of 
instructions, rules, routines, or statements, regardless of the 
media in which recorded, that allow or cause a computer to perform a 
specific operation or series of operations and (ii) data comprising 
source code listings, design details, algorithms, processes, flow 
charts, formulae, and related material that would enable the 
computer program to be produced, created, or compiled. The term does 
not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The 
term includes technical data and computer software. The term 
``data'' does not include data incidental to the administration of 
this contract, such as financial, administrative, cost and pricing, 
or management information.
    (4) Limited rights data, as used in this clause, means data, 
other than computer software, developed at private expense that 
embody trade secrets or are commercial or financial and confidential 
or privileged. The Government's rights to use, duplicate, or 
disclose limited rights data are as set forth in the Limited Rights 
Notice of paragraph (g) of this clause.
    (5) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or 
privileged; or is published copyrighted computer software, including 
minor modifications of any such computer software. The Government's 
rights to use, duplicate, or disclose restricted computer software 
are as set forth in the Restricted Rights Notice of subparagraph (h) 
of this clause.
    (6) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, 
but does include manuals and instructional materials and technical 
data formatted as a computer data base.
    (7) Unlimited rights, as used in this clause, means the rights 
of the Government to use, disclose, reproduce, prepare derivative 
works, distribute copies to the public, including by electronic 
means, and perform publicly and display publicly, in any manner, 
including by electronic means, and for any purpose whatsoever, and 
to have or permit others to do so.
    (b) Allocation of Rights.
    (1) The Government shall have:
    (i) Ownership of all technical data and computer software first 
produced in the performance of this Contract;
    (ii) Unlimited rights in technical data and computer software 
specifically used in the performance of this Contract, except as 
provided herein regarding copyright, limited rights data, or 
restricted computer software, and except for data subject to the 
withholding provisions for protected Cooperative Research and 
Development Agreement (CRADA) information in accordance with 
Technology Transfer actions under this Contract, or other data 
specifically protected by statute for a period of time or, where, 
approved by DOE, appropriate instances of the DOE Work for Others 
Program;
    (iii) The right to inspect technical data and computer software 
first produced or specifically used in the performance of this 
Contract at all reasonable times. The

[[Page 10512]]

Contractor shall make available all necessary facilities to allow 
DOE personnel to perform such inspection;
    (iv) The right to have all technical data and computer software 
first produced or specifically used in the performance of this 
Contract delivered to the Government or otherwise disposed of by the 
Contractor, either as the Contracting Officer may from time to time 
direct during the progress of the work or in any event as the 
Contracting Officer shall direct upon completion or termination of 
this Contract. The Contractor agrees to leave a copy of such data at 
the facility or plant to which such data relate, and to make 
available for access or to deliver to the Government such data upon 
request by the Contracting Officer. If such data are limited rights 
data or restricted computer software. the rights of the Government 
in such data shall be governed solely by the provisions of paragraph 
(g) of this clause (``Rights in Limited Rights Data'') or paragraph 
(h) of this clause (``Rights in Restricted Computer Software''); and
    (v) The right to remove, cancel, correct, or ignore any markings 
not authorized by the terms of this Contract on any data furnished 
hereunder if, in response to a written inquiry by DOE concerning the 
propriety of the markings, the Contractor fails to respond thereto 
within 60 days or fails to substantiate the propriety of the 
markings. In either case DOE will notify the Contractor of the 
action taken.
    (2) The Contractor shall have:
    (i) The right to withhold limited rights data and restricted 
computer software unless otherwise provided in provisions of this 
clause;
    (ii) The right to use for its private purposes, subject to 
patent, security or other provisions of this Contract, data it first 
produces in the performance of this Contract, except for data in 
DOE's Uranium Enrichment Technology, including diffusion, 
centrifuge, and atomic vapor laser isotope separation, provided the 
data requirements of this Contract have been met as of the date of 
the private use of such data; and
    (iii) The right to assert copyright subsisting in scientific and 
technical articles as provided in paragraph (d) of this clause and 
the right to request permission to assert copyright subsisting in 
works other than scientific and technical articles as provided in 
paragraph (e) of this clause.
    (3) The Contractor agrees that for limited rights data or 
restricted computer software or other technical business or 
financial data in the form of recorded information which it receives 
from, or is given access to by DOE or a third party, including a DOE 
contractor or subcontractor, and for technical data or computer 
software it first produces under this Contract which is authorized 
to be marked by DOE, the Contractor shall treat such data in 
accordance with any restrictive legend contained thereon.
    (c) Copyright (General).
    (1) The Contractor agrees not to mark, register, or otherwise 
assert copyright in any data in a published or unpublished work, 
other than as set forth in paragraphs (d) and (e) of this clause.
    (2) Except for material to which the Contractor has obtained the 
right to assert copyright in accordance with either paragraph (d) or 
(e) of this clause, the Contractor agrees not to include in the data 
delivered under this Contract any material copyrighted by the 
Contractor and not to knowingly include any material copyrighted by 
others without first granting or obtaining at no cost a license 
therein for the benefit of the Government of the same scope as set 
forth in paragraph (d) of this clause. If the Contractor believes 
that such copyrighted material for which the license cannot be 
obtained must be included in the data to be delivered, rather than 
merely incorporated therein by reference, the Contractor shall 
obtain the written authorization of the Contracting Officer to 
include such material in the data prior to its delivery.
    (d) Copyrighted works (scientific and technical articles).
    (1) The Contractor shall have the right to assert, without prior 
approval of the Contracting Officer, copyright subsisting in 
scientific and technical articles composed under this contract or 
based on or containing data first produced in the performance of 
this Contract, and published in academic, technical or professional 
journals, symposia, proceedings, or similar works. When assertion of 
copyright is made, the Contractor shall affix the applicable 
copyright notice of 17 U.S.C. 401 or 402 and acknowledgment of 
Government sponsorship (including contract number) on the data when 
such data are delivered to the Government as well as when the data 
are published or deposited for registration as a published work in 
the U.S. Copyright Office. The Contractor grants to the Government, 
and others acting on its behalf, a nonexclusive, paid-up, 
irrevocable, world-wide license in such copyrighted data to 
reproduce, prepare derivative works, distribute copies to the 
public, and perform publicly and display publicly, by or on behalf 
of the Government.
    (2) The contractor shall mark each scientific or technical 
article first produced or composed under this Contract and submitted 
for journal publication or similar means of dissemination with a 
notice, similar in all material respects to the following, on the 
front reflecting the Government's non-exclusive, paid-up, 
irrevocable, world-wide license in the copyright.
    Notice: This manuscript has been authored by [insert the name of 
the Contractor] under Contract No. [insert the contract number] with 
the U.S. Department of Energy. The United States Government retains 
and the publisher, by accepting the article for publication, 
acknowledges that the United States Government retains a non-
exclusive, paid-up, irrevocable, world-wide license to publish or 
reproduce the published form of this manuscript, or allow others to 
do so, for United States Government purposes.

(End of Notice)
    (3) The title to the copyright of the original of unclassified 
graduate theses and the original of related unclassified scientific 
papers shall vest in the author thereof, subject to the right of DOE 
to retain duplicates of such documents and to use such documents for 
any purpose whatsoever without any claim on the part of the author 
or the contractor for additional compensation.
    (e) Copyrighted works (other than scientific and technical 
articles and data produced under a CRADA). The Contractor may obtain 
permission to assert copyright subsisting in technical data and 
computer software first produced by the Contractor in performance of 
this Contract, where the Contractor can show that commercialization 
would be enhanced by such copyright protection, subject to the 
following:
    (1) Contractor Request to Assert Copyright.
    (i) For data other than scientific and technical articles and 
data produced under a CRADA, the Contractor shall submit in writing 
to Patent Counsel its request to assert copyright in data first 
produced in the performance of this Contract pursuant to this 
clause. The right of the Contractor to copyright data first produced 
under a CRADA is as described in the individual CRADA. Each request 
by the Contractor must include:
    (A) The identity of the data (including any computer program) 
for which the Contractor requests permission to assert copyright, as 
well as an abstract which is descriptive of the data and is suitable 
for dissemination purposes,
    (B) The program under which it was funded,
    (C) Whether, to the best knowledge of the Contractor, the data 
is subject to an international treaty or agreement,
    (D) Whether the data is subject to export control,
    (E) A statement that the Contractor plans to commercialize the 
data in compliance with the clause of this contract entitled 
``Technology Transfer Mission,'' within five (5) years after 
obtaining permission to assert copyright or, on a case-by-case 
basis, a specified longer period where the Contractor can 
demonstrate that the ability to commercialize effectively is 
dependent upon such longer period, and
    (F) For data other than computer software, a statement 
explaining why the assertion of copyright is necessary to enhance 
commercialization and is consistent with DOE's dissemination 
responsibilities.
    (ii) For data that is developed using other funding sources in 
addition to DOE funding, the permission to assert copyright in 
accordance with this clause must also be obtained by the Contractor 
from all other funding sources prior to the Contractor's request to 
Patent Counsel. The request shall include the Contractor's 
certification or other documentation acceptable to Patent Counsel 
demonstrating such permission has been obtained.
    (iii) Permission for the Contractor to assert copyright in 
excepted categories of data as determined by DOE will be expressly 
withheld. Such excepted categories include data whose release (A) 
would be detrimental to national security, i.e., involve classified 
information or data or sensitive information under Section 148 of 
the Atomic Energy Act of 1954, as amended, or are subject to export 
control for nonproliferation and other nuclear-related national 
security purposes, (B) would not enhance the appropriate transfer or 
dissemination and commercialization of such data, (C) would have a 
negative impact on U.S. industrial

[[Page 10513]]

competitiveness, (D) would prevent DOE from meeting its obligations 
under treaties and international agreements, or (E) would be 
detrimental to one or more of DOE's programs. Additional excepted 
categories may be added by the Assistant General Counsel for 
Technology Transfer and Intellectual Property. Where data are 
determined to be under export control restriction, the Contractor 
may obtain permission to assert copyright subject to the provisions 
of this clause for purposes of limited commercialization in a manner 
that complies with export control statutes and applicable 
regulations. In addition, notwithstanding any other provision of 
this Contract, all data developed with Naval Reactors' funding and 
those data that are classified fall within excepted categories. The 
rights of the Contractor in data are subject to the disposition of 
data rights in the treaties and international agreements identified 
under this Contract as well as those additional treaties and 
international agreements which DOE may from time to time identify by 
unilateral amendment to the Contract; such amendment listing added 
treaties and international agreements is effective only for data 
which is developed after the date such treaty or international 
agreement is added to this Contract. Also, the Contractor will not 
be permitted to assert copyright in data in the form of various 
technical reports generated by the Contractor under the Contract 
without first obtaining the advanced written permission of the 
Contracting Officer.
    (2) DOE Review and Response to Contractor's Request. The Patent 
Counsel shall use its best efforts to respond in writing within 90 
days of receipt of a complete request by the Contractor to assert 
copyright in technical data and computer software pursuant to this 
clause. Such response shall either give or withhold DOE's permission 
for the Contractor to assert copyright or advise the Contractor that 
DOE needs additional time to respond and the reasons therefor.
    (3) Permission for Contractor to Assert Copyright.
    (i) For computer software, the Contractor shall furnish to the 
DOE designated, centralized software distribution and control point, 
the Energy Science and Technology Software Center, at the time 
permission to assert copyright is given under paragraph (e)(2) of 
this clause: (A) an abstract describing the software suitable for 
publication, (B) the source code for each software program, and (C) 
the object code and at least the minimum support documentation 
needed by a technically competent user to understand and use the 
software. The Patent Counsel, for good cause shown by the 
Contractor, may allow the minimum support documentation to be 
delivered within 60 days after permission to assert copyright is 
given or at such time the minimum support documentation becomes 
available. The Contractor acknowledges that the DOE designated 
software distribution and control point may provide a technical 
description of the software in an announcement identifying its 
availability from the copyright holder.
    (ii) Unless otherwise directed by the Contracting Officer, for 
data other than computer software to which the Contractor has 
received permission to assert copyright under paragraph (e)(2) of 
this clause above, the Contractor shall within sixty (60) days of 
obtaining such permission furnish to DOE's Office of Scientific and 
Technical Information (OSTI) a copy of such data as well as an 
abstract of the data suitable for dissemination purposes. The 
Contractor acknowledges that OSTI may provide an abstract of the 
data in an announcement to DOE, its contractors and to the public 
identifying its availability from the copyright holder.
    (iii) For a five year period or such other specified period as 
specifically approved by Patent Counsel beginning on the date the 
Contractor is given permission to assert copyright in data, the 
Contractor grants to the Government, and others acting on its 
behalf, a paid-up, nonexclusive, irrevocable worldwide license in 
such copyrighted data to reproduce, prepare derivative works and 
perform publicly and display publicly, by or on behalf of the 
Government. Upon request, the initial period may be extended after 
DOE approval. The DOE approval will be based on the standard that 
the work is still commercially available and the market demand is 
being met.
    (iv) After the period approved by Patent Counsel for application 
of the limited Government license described in paragraph (e)(3)(iii) 
of this clause, or if, prior to the end of such period(s), the 
Contractor abandons commercialization activities pertaining to the 
data to which the Contractor has been given permission to assert 
copyright, the Contractor grants to the Government, and others 
acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide 
license in such copyrighted data to reproduce, distribute copies to 
the public, prepare derivative works, perform publicly and display 
publicly, and to permit others to do so.
    (v) Whenever the Contractor asserts copyright in data pursuant 
to this paragraph (e), the Contractor shall affix the applicable 
copyright notice of 17 U.S.C. 401 or 402 on the copyrighted data and 
also an acknowledgment of the Government sponsorship and license 
rights of paragraphs (e)(3) (iii) and (iv) of this clause. Such 
action shall be taken when the data are delivered to the Government, 
published, licensed or deposited for registration as a published 
work in the U.S. Copyright Office. The acknowledgment of Government 
sponsorship and license rights shall be as follows:
    Notice: These data were produced by (insert name of Contractor) 
under Contract No. ______________ with the Department of Energy. For 
(period approved by DOE Patent Counsel) from (date permission to 
assert copyright was obtained), the Government is granted for itself 
and others acting on its behalf a nonexclusive, paid-up, irrevocable 
worldwide license in this data to reproduce, prepare derivative 
works, and perform publicly and display publicly, by or on behalf of 
the Government. There is provision for the possible extension of the 
term of this license. Subsequent to that period or any extension 
granted, the Government is granted for itself and others acting on 
its behalf a nonexclusive, paid-up, irrevocable worldwide license in 
this data to reproduce, prepare derivative works, distribute copies 
to the public, perform publicly and display publicly, and to permit 
others to do so. The specific term of the license can be identified 
by inquiry made to Contractor or DOE. Neither the United States nor 
the United States Department of Energy, nor any of their employees, 
makes any warranty, express or implied, or assumes any legal 
liability or responsibility for the accuracy, completeness, or 
usefulness of any data , apparatus, product, or process disclosed, 
or represents that its use would not infringe privately owned 
rights.

(End of Notice)
    (vi) With respect to any data to which the Contractor has 
received permission to assert copyright, the DOE has the right, 
during the five (5) year or specified longer period approved by 
Patent Counsel as provided for in paragraph (e) of this clause, to 
request the Contractor to grant a nonexclusive, partially exclusive 
or exclusive license in any field of use to a responsible 
applicant(s) upon terms that are reasonable under the circumstances, 
and if the Contractor refuses such request, to grant such license 
itself, if the DOE determines that the Contractor has not made a 
satisfactory demonstration that either it or its licensee(s) is 
actively pursuing commercialization of the data as set forth in 
subparagraph (e)(1)(A) of this clause. Before licensing under this 
subparagraph (vi), DOE shall furnish the Contractor a written 
request for the Contractor to grant the stated license, and the 
Contractor shall be allowed thirty (30) days (or such longer period 
as may be authorized by the Contracting Officer for good cause shown 
in writing by the Contractor) after such notice to show cause why 
the license should not be granted. The Contractor shall have the 
right to appeal the decision of the DOE to grant the stated license 
to the Invention Licensing Appeal Board as set forth in 10 CFR 
781.65--``Appeals''.
    (vii) No costs shall be allowable for maintenance of copyrighted 
data, primarily for the benefit of the Contractor and/or a licensee 
which exceeds DOE Program needs, except as expressly provided in 
writing by the Contracting Officer. The Contractor may use its net 
royalty income to effect such maintenance costs.
    (viii) At any time the Contractor abandons commercialization 
activities for data for which the Contractor has received permission 
to assert copyright in accordance with this clause, it shall advise 
OSTI and Patent Counsel and upon request assign the copyright to the 
Government so that the Government can distribute the data to the 
public.
    (4) The following notice may be placed on computer software 
prior to any publication and prior to the Contractor's obtaining 
permission from the Department of Energy to assert copyright in the 
computer software pursuant to paragraph (c)(3) of this section.
    Notice: This computer software was prepared by [insert the 
Contractor's name and the individual author], hereinafter the 
Contractor, under Contract [insert the Contract Number] with the 
Department of Energy (DOE). All rights in the computer

[[Page 10514]]

software are reserved by DOE on behalf of the United States 
Government and the Contractor as provided in the Contract. You are 
authorized to use this computer software for Governmental purposes 
but it is not to be released or distributed to the public. NEITHER 
THE GOVERNMENT NOR THE CONTRACTOR MAKES ANY WARRANTY, EXPRESS OR 
IMPLIED, OR ASSUMES ANY LIABILITY FOR THE USE OF THIS SOFTWARE. This 
notice including this sentence must appear on any copies of this 
computer software.

(End of Notice)

    (5) a similar notice can be used for data, other than computer 
software, upon approval of DOE Patent Counsel.
    (f) Subcontracting.
    (1) Unless otherwise directed by the Contracting Officer, the 
Contractor agrees to use in subcontracts in which technical data or 
computer software is expected to be produced or in subcontracts for 
supplies that contain a requirement for production or delivery of 
data in accordance with the policy and procedures of 48 CFR (FAR) 
Subpart 27.4 as supplemented by 48 CFR (DEAR) 927.401 through 
927.409, the clause entitled ``Rights in Data-General'' at 48 CFR 
52.227-14 modified in accordance with 927.409(a) and including 
Alternate V. Alternates II through IV of that clause may be included 
as appropriate with the prior approval of DOE Patent Counsel, and 
the Contractor shall not acquire rights in a subcontractor's limited 
rights data or restricted computer software, except through the use 
of Alternates II or III, respectively, without the prior approval of 
DOE Patent Counsel. The clause at FAR 52.227-16, Additional Data 
Requirements, shall be included in subcontracts in accordance with 
DEAR 927.409(h). The Contractor shall use instead the Rights in 
Data--Facilities clause at DEAR 970.5204-82 in subcontracts, 
including subcontracts for related support services, involving the 
design or operation of any plants or facilities or specially 
designed equipment for such plants or facilities that are managed or 
operated under its contract with DOE.
    (2) It is the responsibility of the Contractor to obtain from 
its subcontractors technical data and computer software and rights 
therein, on behalf of the Government, necessary to fulfill the 
Contractor's obligations to the Government with respect to such 
data. In the event of refusal by a subcontractor to accept a clause 
affording the Government such rights, the Contractor shall:
    (i) Promptly submit written notice to the Contracting Officer 
setting forth reasons or the subcontractor's refusal and other 
pertinent information which may expedite disposition of the matter, 
and
    (ii) Not proceed with the subcontract without the written 
authorization of the Contracting Officer.
    (3) Neither the Contractor nor higher-tier subcontractors shall 
use their power to award subcontracts as economic leverage to 
acquire rights in a subcontractor's limited rights data and 
restricted computer software for their private use.
    (g) Rights in Limited Rights Data.
    Except as may be otherwise specified in this Contract as data 
which are not subject to this paragraph, the Contractor agrees to 
and does hereby grant to the Government an irrevocable nonexclusive, 
paid-up license by or for the Government, in any limited rights data 
of the Contractor specifically used in the performance of this 
Contract, provided, however, that to the extent that any limited 
rights data when furnished or delivered is specifically identified 
by the Contractor at the time of initial delivery to the Government 
or a representative of the Government, such data shall not be used 
within or outside the Government except as provided in the ``Limited 
Rights Notice'' set forth below. All such limited rights data shall 
be marked with the following ``Limited Rights Notice:''

Limited Rights Notice

    These data contain ``limited rights data,'' furnished under 
Contract No. ______________ with the United States Department of 
Energy which may be duplicated and used by the Government with the 
express limitations that the ``limited rights data'' may not be 
disclosed outside the Government or be used for purposes of 
manufacture without prior permission of the Contractor, except that 
further disclosure or use may be made solely for the following 
purposes:
    (a) Use (except for manufacture) by support services contractors 
within the scope of their contracts;
    (b) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (c) This ``limited rights data'' may be disclosed to other 
contractors participating in the Government's program of which this 
Contract is a part for information or use (except for manufacture) 
in connection with the work performed under their contracts and 
under the restriction that the ``limited rights data'' be retained 
in confidence and not be further disclosed;
    (d) This ``limited rights data'' may be used by the Government 
or others on its behalf for emergency repair or overhaul work under 
the restriction that the ``limited rights data'' be retained in 
confidence and not be further disclosed; and
    (e) Release to a foreign government, or instrumentality thereof, 
as the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work 
by such government.
    This Notice shall be marked on any reproduction of this data in 
whole or in part.

(End of Notice)

    (h) Rights in Restricted Computer Software.
    (1) Except as may be otherwise specified in this Contract as 
data which are not subject to this paragraph, the Contractor agrees 
to and does hereby grant to the Government an irrevocable, 
nonexclusive, paid-up, license by or for the Government, in any 
restricted computer software of the Contractor specifically used in 
the performance of this Contract; provided, however, that to the 
extent that any restricted computer software when furnished or 
delivered is specifically identified by the Contractor at the time 
of initial delivery to the Government or a representative of the 
Government, such data shall not be used within or outside the 
Government except as provided in the ``Restricted Rights Notice'' 
set forth below. All such restricted computer software shall be 
marked with the following ``Restricted Rights Notice:''

Restricted Rights Notice--Long Form

    (a) This computer software is submitted with restricted rights 
under Department of Energy Contract No. ______________ . It may not 
be used, reproduced, or disclosed by the Government except as 
provided in paragraph (b) of this notice.
    (b) This computer software may be:
    (1) Used or copied for use in or with the computer or computers 
for which it was acquired, including use at any Government 
installation to which such computer or computers may be transferred;
    (2) Used, copied for use, in a backup or replacement computer if 
any computer for which it was acquired is inoperative or is 
replaced;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that only the portions of the derivative software 
consisting of the restricted computer software are to be made 
subject to the same restricted rights; and
    (5) Disclosed to and reproduced for use by contractors under a 
service contract (of the type defined in FAR 37.101) in accordance 
with subparagraphs (b)(1) through (4) of this Notice, provided the 
Government makes such disclosure or reproduction subject to these 
restricted rights.
    (c) Notwithstanding the foregoing, if this computer software has 
been published under copyright, it is licensed to the Government, 
without disclosure prohibitions, with the rights set forth in the 
restricted rights notice above.
    (d) This Notice shall be marked on any reproduction of this 
computer software, in whole or in part.

(End of Notice)

    (2) Where it is impractical to include the Restricted Rights 
Notice on restricted computer software, the following short-form 
Notice may be used in lieu thereof:

Restricted Rights Notice--Short Form

    Use, reproduction, or disclosure is subject to restrictions set 
forth in the Long Form Notice of DOE Contract No. ______________ 
with (name of Contractor).

(End of Notice)
    (3) If the software is embedded, or if it is commercially 
impractical to mark it with human readable text, then the symbol R 
and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may 
be used. This will be read to mean restricted computer software, 
subject to the rights of the Government as described in the Long 
Form Notice, in effect as of the date indicated next to the symbol. 
The symbol shall not be used to mark human readable material. In the 
event this Contract contains any variation to the rights in the Long 
Form Notice, then the contract number must also be cited.
    (4) If restricted computer software is delivered with the 
copyright notice of 17 U.S.C. 401, the software will be presumed to

[[Page 10515]]

be published copyrighted computer software licensed to the 
Government without disclosure prohibitions and with unlimited 
rights, unless the Contractor includes the following statement with 
such copyright notice ``Unpublished-rights reserved under the 
Copyright Laws of the United States.''
    (i) Relationship to patents.
    Nothing contained in this clause creates or is intended to imply 
a license to the Government in any patent or is intended to be 
construed as affecting the scope of any licenses or other rights 
otherwise granted to the Government under any patent.

(End of Clause)
    Alternate I (Feb. 1998): In accordance with 970.2706(g), insert 
the phrase ``and except Restricted Data in category C-24, 10 CFR 
part 725, in which DOE has reserved the right to receive reasonable 
compensation for the use of its inventions and discoveries, 
including related data and technology'' after ``laser isotope 
separation'' and before the comma in paragraph (b)(2)(ii) of the 
clause at 970.5204-83, as appropriate.

(End of Alternate)

[FR Doc. 98-5079 Filed 3-4-98; 8:45 am]
BILLING CODE 6450-01-P