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

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