[Federal Register: November 23, 2009 (Volume 74, Number 224)]
[Rules and Regulations]               
[Page 61043-61045]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23no09-13]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 227 and 252

RIN 0750-AG50

 
Defense Federal Acquisition Regulation Supplement; Government 
Rights in the Design of DoD Vessels (DFARS Case 2008-D039)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement section 825 of 
the Duncan Hunter National Defense Authorization Act for Fiscal Year 
2009 (Pub. L. 110-417). Section 825 clarifies the Government's rights 
in technical data in the designs of DoD vessels, boats, craft, and 
components thereof. This interim rule also implements the Vessel Hull 
Design Protection Amendments of 2008 (Pub. L. 110-434).

DATES: Effective date: November 23, 2009.
    Comment date: Comments on the interim rule should be submitted to 
the address shown below on or before January 22, 2010, to be considered 
in the formation of the final rule.

ADDRESSES: Respondents may submit comments via the Internet at http://
emissary.acq.osd.mil/dar/dfars.nsf/pubcom. As an alternative, 
respondents may e-mail comments to: dfars@osd.mil. Please cite DFARS 
Case 2008-D039 in the subject line of e-mailed comments.
    Respondents that cannot submit comments using either of the above 
methods may submit comments to: Defense Acquisition Regulations 
Council, Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DARS), IMD 3D139, 
3062 Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-
7887. Please cite DFARS Case 2008-D039.
    Interested parties may view public comments on the Internet at 
http://emissary.acq.osd.mil/dar/dfars.nsf.

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

[[Page 61044]]


SUPPLEMENTARY INFORMATION: 

A. Background

    The requirements of the Vessel Hull Design Protection Amendments 
and new section 825 of the National Defense Authorization Act for 
Fiscal Year 2009 are similar in both substance and language. This 
interim rule adds language to the existing technical data policy 
sections and creates two new clause alternates.
    10 U.S.C. 2320 establishes requirements for DoD's acquisition of 
technical data and neither of the above statutory changes covers 
computer software. Accordingly, additional coverage in the DFARS for 
computer software is unnecessary.
    Both statutory changes provide new requirements, not presently 
covered in the DFARS, for the acquisition of vessels and hulls covered 
by vessel hull design registrations. DFARS coverage is appropriate 
because these statutory changes directly impact the acquisition of 
vessels and hulls by DoD and its components.
    To implement the statutory changes, DoD has added new paragraph (c) 
to current 227.7102-1, Policy, and new paragraph (g) to current 
227.7103-1, Policy. Contracting officers must be made aware of the 
requirements of 17 U.S.C. 1301(a)(3) and 10 U.S.C. 7317, as these 
statutes affect both the rights of the contractors and DoD.
    The rule also provides Alternates to clauses 252.227-7013, Rights 
in Technical Data--Noncommercial Items, and 252.227-7015, Technical 
Data--Commercial Items. Each Alternate adds to the basic clause--
    (i) A new definition for ``vessel designs''; and
    (ii) An affirmative grant of appropriate rights in same to the 
Government.
    This rule was subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it does not 
create any burden for small business concerns. The rule just clarifies 
the Government's rights in technical data in the designs of DoD 
vessels, boats, craft, and components thereof. For acquisition of 
vessels and hulls covered by vessel hull design registrations, the rule 
provides that the Government shall have certain rights for a vessel 
design (including a vessel design embodied in a useful article) that is 
developed or delivered to the Government, to the same extent that the 
Government is granted rights in the technical data pertaining to the 
vessel design. Therefore, DoD has not performed an initial regulatory 
flexibility analysis. DoD invites comments from small businesses and 
other interested parties.
    DoD also will consider comments from small entities concerning the 
affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments 
should be submitted separately and should cite DFARS Case 2008-D039.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the DFARS rule 
will not impose any additional reporting or recordkeeping requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to publish an 
interim rule prior to affording the public an opportunity to comment. 
This interim rule implements section 825 of the Duncan Hunter National 
Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417) and 
the Vessel Hull Design Protection Amendments of 2008 (Pub. L. 110-434). 
These statutes were effective upon enactment. Comments received in 
response to this interim rule will be considered in the formation of 
the final rule.

List of Subjects in 48 CFR Parts 227 and 252

    Government procurement.

Amy G. Williams,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 227 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 227 and 252 continues to 
read as follows:

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

PART 227--PATENTS, DATA, AND COPYRIGHTS

0
2. Section 227.7100 is amended by redesignating paragraphs (a)(6) and 
(a)(7) as paragraphs (a)(8) and (a)(9) respectively and adding new 
paragraphs (a)(6) and (a)(7), to read as follows:


227.7100  Scope of subpart.

* * * * *
    (a) * * *
    (6) 10 U.S.C. 7317.
    (7) 17 U.S.C. 1301, et seq.
* * * * *

0
3. Section 227.7102-1 is amended by adding paragraph (c) to read as 
follows:


227.7102-1  Policy.

* * * * *
    (c) The Government's rights in a vessel design, and in any useful 
article embodying a vessel design, must be consistent with the 
Government's rights in technical data pertaining to the design (10 
U.S.C. 7317; 17 U.S.C. 1301(a)(3)).
0
4. Section 227.7102-3 is amended by redesignating paragraph (a) as 
paragraph (a)(1) and adding paragraph (a)(2) to read as follows:


227.7102-3  Contract clause.

    (a)(1) * * *
    (2) Use the clause at 252.227-7015 with its Alternate I in 
contracts for the development or delivery of a vessel design or any 
useful article embodying a vessel design.
* * * * *

0
5. Section 227.7103-1 is amended by adding paragraph (g) to read as 
follows:


227.7103-1  Policy.

* * * * *
    (g) The Government's rights in a vessel design, and in any useful 
article embodying a vessel design, must be consistent with the 
Government's rights in technical data pertaining to the design (10 
U.S.C. 7317; 17 U.S.C. 1301(a)(3)).
0
6. Section 227.7103-6 is amended by redesignating paragraphs (b)(1) and 
(b)(2) as (b)(i) and (b)(ii), paragraph (b) as (b)(1), and adding 
paragraph (b)(2) to read as follows:


227.7103-6  Contract clauses.

* * * * *
    (b)(1) * * *
    (2) Use the clause at 252.227-7013 with its Alternate II in 
contracts for the development or delivery of a vessel design or any 
useful article embodying a vessel design.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
7. Section 252.227-7013 is amended in the introductory text of 
Alternate I by removing ''227.7103-6(b)'' and adding in its place 
``227.7103-6(b)(1)''; and adding Alternate II to read as follows:
* * * * *

[[Page 61045]]

Alternate II (NOV 2009)
    As prescribed in 227.7103-6(b)(2), add the following paragraphs 
(a)(16) and (b)(7) to the basic clause:
    (a)(16) ``Vessel design'' means the design of a vessel, boat, or 
craft, and its components, including the hull, decks, 
superstructure, and the exterior surface shape of all external 
shipboard equipment and systems. The term includes designs covered 
by 10 U.S.C. 7317, and designs protectable under 17 U.S.C. 1301, et 
seq.
    (b)(7) Vessel designs. For a vessel design (including a vessel 
design embodied in a useful article) that is developed or delivered 
under this contract, the Government shall have the right to make and 
have made any useful article that embodies the vessel design, to 
import the article, to sell the article, and to distribute the 
article for sale or to use the article in trade, to the same extent 
that the Government is granted rights in the technical data 
pertaining to the vessel design.


0
8. Section 252.227-7015 is amended in the introductory text by removing 
``227.7102-3'' and adding in its place ``227.7102-3(a)(1)''; and adding 
Alternate I to read as follows:


252.227-7015  Technical data--Commercial items.

* * * * *
Alternate I (NOV 2009)
    As prescribed in 227.7102-3(a)(2), add the following paragraphs 
(a)(5) and (b)(3) to the basic clause:

    (a)(5) ``Vessel design'' means the design of a vessel, boat, or 
craft, and its components, including the hull, decks, 
superstructure, and the exterior surface shape of all external 
shipboard equipment and systems. The term includes designs covered 
by 10 U.S.C. 7317, and designs protectable under 17 U.S.C. 1301, et 
seq.
    (b)(3) Vessel designs. For a vessel design (including a vessel 
design embodied in a useful article) that is developed or delivered 
under this contract, the Government shall have the right to make and 
have made any useful article that embodies the vessel design, to 
import the article, to sell the article, and to distribute the 
article for sale or to use the article in trade, to the same extent 
that the Government is granted rights in the technical data 
pertaining to the vessel design.

[FR Doc. E9-27844 Filed 11-20-09; 8:45 am]

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