[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)]
[Notices]
[Pages 40290-40292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14608]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Government-Industry Advisory Panel; Request for Information on
Rights in Technical Data and the Validation of Proprietary Data
Restrictions
AGENCY: Department of Defense.
ACTION: Notice.
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SUMMARY: The Government-Industry Advisory Panel, a Department of
Defense (DoD) advisory committee established in accordance with the
Federal Advisory Committee Act (FACA), is seeking information to
facilitate a review of sections 2320 and 2321 of Title 10 of the United
States Code (U.S.C.), regarding rights in technical data and the
validation of proprietary data restrictions.
DATES: Submit written comments to the address shown in the ADDRESSES
section on or before July 21, 2016.
ADDRESSES: Submit comments to Office of the Assistant Secretary of
Defense (Acquisition), ATTN: LTC Andrew Lunoff/Designated Federal
Officer (DFO), 3090 Defense Pentagon, Washington, DC 20301-3090; or by
email to andrew.s.lunoff.mil@mail.mil">andrew.s.lunoff.mil@mail.mil.
FOR FURTHER INFORMATION CONTACT: LTC Andrew Lunoff, Office of the
Assistant Secretary of Defense (Acquisition), 3090 Defense Pentagon,
Washington, DC 20301-3090; email: andrew.s.lunoff.mil@mail.mil">andrew.s.lunoff.mil@mail.mil; phone:
571-256-9004.
SUPPLEMENTARY INFORMATION: Section 813 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2016 required DoD to
establish the Government-Industry Advisory Panel for the purpose of
reviewing 10 U.S.C. 2320 and 2321, regarding rights in technical data
and the validation of proprietary data restrictions, and the
regulations implementing such sections, for the purpose of ensuring
that such statutory and regulatory requirements are best structured to
serve the interests of the taxpayers and the national defense. The
advisory panel is to give appropriate consideration to the following:
(1) Ensuring that DoD does not pay more than once for the same work;
(2) ensuring that the DoD contractors are appropriately rewarded for
their innovation and invention; (3) providing for cost-effective re-
procurement, sustainment, modification, and upgrades to the DoD
systems; (4) encouraging the private sector to invest in new products,
technologies, and processes relevant to the missions of the DoD; and
(5) ensuring that the DoD has appropriate access to innovative
products, technologies, and processes developed by the private sector
for commercial use.
The regulatory implementation of 10 U.S.C. 2320 and 2321 are in the
Defense Federal Acquisition Regulation Supplement (DFARS) at subpart
227.71, covering both commercial and noncommercial technical data. This
regulatory scheme is also adapted to cover computer software in DFARS
subpart 227.72, where nearly all elements of the technical data scheme
are applied to noncommercial computer software, but not to commercial
computer software. Thus, although the statutory sections apply only to
technical data, the regulatory implementation has historically also
affected how DoD acquires and manages computer software and, therefore,
is another factor to be considered. In addition, a significant
streamlining and integration of these DFARS subparts was published for
public comment in 2010 entitled ``Patent, Data, and Copyrights (DFARS
case 2010-D001)'' (see 75 FR 59411); the key elements of that proposed
revision of regulatory scheme, and the public comments received in
response to that proposed
[[Page 40291]]
rule, may be considered under these efforts.
DoD has also developed a considerable body of policy and guidance
to further implement and manage technical data and computer software
issues in the context of DoD acquisition programs. Most recently, DoD's
Better Buying Power (BBP) activities have included direction to
``enforce open system architectures and effectively manage technical
data rights,'' which have spawned numerous key updates to DoD policy
and guidance. For example, DoD Instruction 5000.02, ``Operation of the
Defense Acquisition System,'' was revised to require program managers
to develop and maintain an Intellectual Property (IP) Strategy
throughout the entire program life cycle, with additional guidance on
this new requirement being provided in an ``Intellectual Property
Strategy'' guidance document and within DoD's ``Guidelines For Creating
and Maintaining a Competitive Environment for Supplies and Services in
the Department of Defense.'' DoD has also incorporated IP
considerations into its training for the DoD workforce (e.g., through
the Defense Acquisition University) and its outreach activities to
industry (e.g., white paper entitled ``DoD, Innovation, and
Intellectual Property in Commercial & Proprietary Technologies'').
Links to all of these statutes, regulations, policy, and guidance
documents, as well as additional related materials, are provided at
https://database.faca.gov/committee/committee.aspx?cid=2561.
As a representative sample of the core elements of the cited DoD
policy and guidance, the following guiding principles for a strategic
approach to IP management are discussed in more detail in the
``Intellectual Property Strategy'' guidance document:
1. Anticipate and plan for sustainment and competition over the
entire system life cycle.
2. Align and integrate the IP Strategy with other program
strategies and plans.
3. Just do it: Delivery now to ensure return on investment (ROI)
for DoD-funded development (or prior acquisition).
4. But don't make an unnecessary ``grab'' for deliverables or
license rights for ``proprietary'' IP.
5. Before and after: Up-front evaluation and back-end validation of
IP deliverables and license rights assertions.
In order to facilitate the panel's review of 10 U.S.C. 2320 and
2321 and the regulations implementing these sections, public comment is
requested, using the factors and additional considerations summarized
in this notice, on the following:
1. Any issues, concerns, benefits, and/or appropriateness of 10
U.S.C. 2320 and/or 2321.
2. Any issues, concerns, benefits, and/or appropriateness of the
current implementing DFARS regulations (subparts 227.71 and 227.72, and
associated clauses), including the extent to which these regulations
are consistent with and effective in implementing 10 U.S.C. 2320 and
2321.
3. Any issues, concerns, benefits, and/or appropriateness of DoD's
policy and guidance on IP strategy and management, including the extent
to which such DoD policy and guidance is consistent with and effective
in further implementing the cited governing statutes and regulations.
4. Any issues/concerns associated with whether and how DoD
personnel are prepared and equipped to implement DoD's IP policy and
guidance, and/or the governing statutes and regulations, including via
DoD's training curriculum, or otherwise.
5. The current approach in regulation (DFARS 227.71 and 227.72) of
extending and adapting the scheme of 10 U.S.C. 2320 and 2321 to apply
to computer software, including the approach whereby most of the
statutory scheme is applied to noncommercial computer software but not
to commercial computer software.
6. The current approach in regulation of treating ``Rights in
Technical Data'' and ``Rights in Computer Software and Computer
Software Documentation'' as two separate topics/subparts (i.e., DFARS
227.71 and 227.72, respectively), or whether they should be merged into
a single topic/subpart.
7. The applicability of 10 U.S.C. 2320 and 2321, and the
implementing DFARS requirements and clauses, to contracts and
subcontracts for commercial items.
8. Practices used by DoD in acquiring IP from non-traditional
contractors, commercial contractors, and traditional contractors. The
request isn't limited to where the law or regulations require a
specific practice, but also includes where the Department uses a
practice not required by law/regulation. For example, any of the
following:
a. What worked?
b. What didn't work?
c. What was fair?
d. What wasn't fair?
e. What practices encourage or discourage non-traditional
contractors from entering the defense marketplace?
f. What practices encourage or discourage commercial contractors
from entering the defense marketplace?
g. What practices encourage or discourage traditional contractors
from privately investing in new products, technologies, and processes
relevant to the missions of the DoD?
9. IP acquisition practices used by DoD that encourage or
discourage use of commercial technologies. For example, any of the
following:
a. What practices encourage or discourage vendors from providing
DoD access to innovative products, technologies, and processes that
have been developed for commercial use?
b. What practices encourage or discourage the transition of Defense
specific technologies into the commercial marketplace?
10. Any issues, concerns, benefits, and/or appropriateness of DoD's
policy, guidance, and practices that link technical data management and
other IP considerations with open systems architectures (OSA), and/or
modular open systems approaches (MOSA).
11. Any issues, concerns, benefits, and/or appropriateness with
sections 1701 (Modular Open System Approach in Development of Major
Weapon Systems) and 1705 (Amendments Relating to Technical Data Rights)
of the House Armed Services Committee markup of H.R. 4909, the NDAA for
FY 2017.
Commenters are requested to include specific citations to law,
regulations, DoD policy and/or guidance, as well as examples and
supporting data (e.g., specific DoD solicitations and/or contracts that
demonstrate DoD practices) to support their comments, to the extent
available. Because the Panel is subject to the FACA, materials will be
made available to the public when provided to the Panel members.
Comments submitted in response to this request for information will
be used solely for the review of 10 U.S.C. 2320 and 2321 and the
current implementing regulations by the Government-Industry Advisory
Panel, pursuant to section 813 of the NDAA for FY 2016.
Please note that the Defense Acquisition Regulation System has
separately published for public comment the following proposed rules to
amend the DFARS regarding rights in technical data:
Rights in Technical Data (DFARS case 2016-D008) (see 81 FR
28812-28816; published May 10, 2016).
Rights in Technical Data and the Validation of Proprietary
Data Restrictions (DFARS case 2012-D022) (see 81 FR 39482-39503;
published June 16, 2016).
Comments on these proposed DFARS rules must be submitted in
accordance with the specific instructions published
[[Page 40292]]
in each proposed rule in order to be considered in the formation of any
final rule resulting therefrom.
Dated: June 16, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-14608 Filed 6-20-16; 8:45 am]
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