[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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