[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80260-80263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25406]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 227 and 252
[Docket DARS-2023-0045; Req No. DARS-2024-00015-FR]
RIN 0750-AK82
Defense Federal Acquisition Regulation Supplement: Rights in
Technical Data (DFARS Case 2019-D044)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: DoD is seeking information that will assist in the development
of a revision to the Defense Federal Acquisition Regulation Supplement
(DFARS) to implement sections of the National Defense Authorization
Acts for Fiscal Years 2012 and 2017, which
[[Page 80261]]
address deferred ordering of technical data, including in cases when
the Government does not challenge a restrictive marking or asserted
restriction in technical data. In addition to the request for written
comments on this proposed rule, DoD will hold a public meeting to hear
the views of interested parties.
DATES: Comments on the advance notice of proposed rulemaking should be
submitted in writing to the address shown below on or before January
16, 2024, to be considered in the formation of a proposed rule.
Public Meeting: A virtual public meeting will be held on December
15, 2023, from 1:00 p.m. to 5:00 p.m., Eastern time. DoD also plans to
reserve time on a separate date to be determined. The public meeting
will end at the stated time, or when the discussion ends, whichever
comes first.
Registration: Registration to attend the public meeting must be
received no later than close of business on December 8, 2023.
Information on how to register for the public meeting is provided under
the SUPPLEMENTARY INFORMATION section of this notice.
ADDRESSES:
Public Meeting: A virtual public meeting will be held using Zoom
video conferencing software.
Submission of Comments: Submit comments identified by DFARS Case
2019-D044, using any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2019-D044.'' Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2019-
D044'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2019-D044 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: David E. Johnson, telephone 202-913-
5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is seeking information from experts and interested parties in
the Government and the private sector that will assist in the
development of a revision to the DFARS to implement section 815(a)(2)
of the National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2012 (Pub. L. 112-81) and section 809(c) of the NDAA for FY 2017 (Pub.
L. 114-328). These statutes apply to DoD only; they do not impact other
Federal agencies. Sections 815(a)(2) and 809(c) amended 10 U.S.C. 2320
(currently 10 U.S.C. 3771 and 10 U.S.C. 3772) by adding paragraphs
(b)(9) and (b)(10), respectively. 10 U.S.C. 2320(b)(9) addressed the
Government's rights for deferred ordering of technical data. 10 U.S.C.
2320(b)(10) established that the Government is not foreclosed from
requiring the delivery of the technical data by the Government's
failure to challenge restrictive markings or asserted rights in
technical data.
DoD previously published in the Federal Register proposed DFARS
revisions to implement the statutory revisions in the NDAA for FY 2012
as part of DFARS Case 2012-D022 on June 16, 2016, at 81 FR 39481. That
case was suspended during the pendency of the Government-Industry
Advisory Panel pursuant to section 813 of the NDAA for FY 2016. During
that pause in rulemaking, section 809(c) of the NDAA for FY 2017
further revised the deferred ordering statutory framework. As part of
the resumption and reorganization of the DFARS data rights cases after
the conclusion of the Government-Industry Advisory Panel, the
implementation of these two statutory revisions has been broken out in
this separate case due to the distinct subject matter and limited
nature of the statutory revisions.
II. Public Meeting
DoD is interested in continuing a dialogue with experts and
interested parties in the Government and the private sector regarding
amending the DFARS to implement the aforementioned NDAA sections.
Registration: Individuals wishing to participate in the virtual
meeting must register by December 8, 2023, to facilitate entry to the
meeting. Interested parties may register for the meeting by sending the
following information via email to [email protected] and include
``Public Meeting, DFARS Case 2019-D044'' in the subject line of the
message:
Full name.
Valid email address, which will be used for admittance to
the meeting.
Valid telephone number, which will serve as a secondary
connection method. Registrants must provide the telephone number they
plan on using to connect to the virtual meeting.
Company or organization name.
Whether the individual desires to make a presentation.
Pre-registered individuals will receive instructions for connecting
using the Zoom video conferencing software not more than one week
before the meeting is scheduled to commence.
Presentations: Presentations will be limited to 5 minutes per
company or organization. This limit may be subject to adjustment,
depending on the number of entities requesting to present, in order to
ensure adequate time for discussion. If you wish to make a
presentation, please submit an electronic copy of your presentation via
email to [email protected] no later than the registration date for the
specific meeting. Each presentation should be in PowerPoint to
facilitate projection during the public meeting and should include the
presenter's name, title, organization affiliation, telephone number,
and email address on the cover page.
Correspondence, Comments, and Presentations: Please cite ``Public
Meeting, DFARS Case 2019-D044'' in all correspondence related to the
public meeting. There will be no transcription at the meeting. The
submitted presentations will be the only record of the public meeting
and will be posted to the following website at the conclusion of the
public meeting: https://www.acq.osd.mil/dpap/dars/technical_data_rights.html.
III. Discussion and Analysis
An initial draft of the DFARS revisions under consideration is
available in the Federal eRulemaking Portal at https://www.regulations.gov, by searching for ``DFARS Case 2019-D044'', and
selecting ``Supporting & Related Material.'' The strawman is also
available at https://www.acq.osd.mil/dpap/dars/change_notices.html
under the publication notice for DFARS Case 2019-D044.
In addition, the revisions under consideration for this case
include some definitions and other content that is consistent with
revisions contained in a related case DFARS Case 2021-D005, Modular
Open Systems Approaches, for which an advance notice of proposed
rulemaking is being published on the same date as these revisions under
consideration for DFARS Case 2019-D044. DoD recommends review and
consideration of both of these cases in tandem for a more holistic view
of the revisions under consideration for these related subject matters.
The following is a summary of the approach DoD is considering and
the feedback DoD is seeking from industry and the public.
[[Page 80262]]
A. Deferred Ordering of Technical Data
Consistent with 10 U.S.C. 3772(a)(9) (formerly 10 U.S.C.
2320(b)(9)), DoD is considering a revision to the clause at DFARS
252.227-7027, Deferred Ordering of Technical Data or Computer Software,
and the associated guidance to contracting officers at DFARS 227.7103-8
and 227.7203-8. In particular, the revisions under consideration
include the statutory requirement for a determination that--
The technical data is needed for the purpose of
reprocurement, sustainment, modification, or upgrade (including through
competitive means) of a major system or subsystem thereof, a weapon
system or subsystem thereof, or any noncommercial product or process;
and
The technical data pertains to an item or process
developed in whole or in part with Federal funds; or is described in
subparagraphs (D)(i)(II), (F), and (G) of subsection (a)(2) of 10
U.S.C. 2320.
Subparagraphs (D)(i)(II), (F), and (G) of subsection (a)(2) of 10
U.S.C. 2320 (currently 10 U.S.C. 3771(b)(4)(A)(ii), (b)(6), and (b)(7))
reference technical data related to interfaces necessary for
segregation and reintegration activities, technical data pertaining to
interfaces developed with mixed funding, and technical data pertaining
to modular system interfaces developed exclusively at private expense
or with mixed funding, respectively.
The definition and other implementation of these types of technical
data that enable modular open system approaches (MOSA) are core
elements of the revisions under consideration in DFARS Case 2021-D005,
which implement these and other new MOSA-related statutory
requirements. To ensure consistency with DFARS Case 2021-D005, the
revisions under consideration in this DFARS Case 2019-D044 incorporate
the relevant definitions of such MOSA-related terms as they appear in
DFARS Case 2021-D005, including the terms ``interface implementation
data'', ``interface implementation software'', and ``interface
specification''. ``Interface implementation data'' means technical data
that--
Describes the detailed steps, sequences, characteristics,
and conditions used or specified by the developer to implement an
interface; and
Has sufficient detail necessary to permit segregation of
an item or process from, or reintegration of that item or process (or a
physically or functionally equivalent item or process) with, other
items or processes.
The term ``interface implementation software'' is defined similarly
to cover computer software, rather than technical data, that meets the
same criteria. ``Interface specification'' means form, fit, and
function data or form, fit, and function software that pertains to or
describes an interface. The terms ``form, fit, and function data'' and
``form, fit, and function software'' are also defined in this case and
DFARS Case 2021-D005.
In particular, the revisions under consideration focus on the
following categories of technical data in the implementation of 10
U.S.C. 2320(b)(9)(B)(ii) (currently 10 U.S.C. 3772(a)(9)(B)(ii)):
Technical data described at 10 U.S.C. 3771(b)(4)(ii)
(formerly 10 U.S.C. 2320(a)(2)(D)(i)(II)) is implemented by the
combination of interface specification technical data and interface
implementation data between an item or process or other items or
processes necessary for the segregation of an item or process from, or
the reintegration of that item, process, or a physically or
functionally equivalent item or process with, other items or processes.
Technical data described at 10 U.S.C. 3771(b)(7) (formerly
10 U.S.C. 2320(a)(2)(G)), and more specifically the subtype of such
data related to an interface developed exclusively at private expense,
is implemented by the combination of interface specification technical
data and interface implementation data pertaining to a modular system
interface as described in paragraph (b)(2) of the clauses at DFARS
252.227-7013, Rights in Technical Data--Other Than Commercial Products
or Commercial Services; 252.227-7014, Rights in Other Than Commercial
Computer Software and Other Than Commercial Computer Software
Documentation; 252.227-7015, Technical Data--Commercial Products and
Commercial Services; and 252.227-7018, Rights in Other Than Commercial
Technical Data and Computer Software--Small Business Innovation
Research (SBIR) Program.
This implementation does not separately reference the technical
data covered by 10 U.S.C. 3771(b)(6) (formerly 10 U.S.C.
2320(a)(2)(F)), which is technical data that pertains to interfaces
developed with mixed funding, because this data is subsumed within
another category of technical data already covered in the clause at
DFARS 252.227-7027: ``technical data [that] pertains to an item or
process developed . . . with mixed funding''. Therefore, it is
unnecessary to list ``technical data that pertains to interfaces
developed with mixed funding'' as a separate category of technical data
in the clause.
In short, DoD's approach to the DFARS revisions under consideration
is centered on enabling MOSA, which is consistent with the statutory
intent of 10 U.S.C. 3771(b)(4)(A)(ii), (b)(6), and (b)(7) (formerly 10
U.S.C. 2320(a)(2)(D)(i)(II), (F), and (G), respectively). As discussed
in the advance notice of proposed rulemaking for DFARS Case 2021-D005,
interface implementation data (IID) (and analogously, interface
implementation software (IIS)) provides a greater level of detail than
an interface specification (i.e., form, fit, and function data or form,
fit, and function software that pertains to an interface). Although the
statutory framework allows the deferred ordering of IID or IIS that is
necessary for segregation or reintegration or related to modular system
interfaces, in any individual case DoD may not require the detail in
IID or IIS and may require only the lesser detail provided in an
interface specification.
For the same reasons, the revisions under consideration similarly
apply the statutory amendments in 10 U.S.C. 3772(a)(9) (formerly 10
U.S.C. 2320(b)(9)) to computer software and computer software
documentation in the clause at DFARS 252.227-7027, as well as the
associated guidance for contracting officers.
B. Statutory Amendments Related to Challenges to Restrictive Markings
or Asserted Restrictions in Technical Data
Consistent with 10 U.S.C. 3772(a)(10) (formerly 10 U.S.C.
2320(b)(10)), DoD is proposing to revise the clause at DFARS 252.227-
7037, Validation of Restrictive Markings on Technical Data. In
particular, the revisions under consideration at DFARS 252.227-7037,
paragraph (j), indicate that a decision by the Government, or a
determination by the contracting officer, to not challenge a
restrictive marking or asserted restriction shall not foreclose the
Government from requiring delivery of the technical data.
Consistent with long-standing DFARS implementation of the
procedures for validation of asserted restrictions, the revisions
required by statute for technical data are also being considered for
the analogous clause covering noncommercial computer software at DFARS
252.227-7019, Validation of Asserted Restrictions--Computer Software.
The revisions under consideration add a new paragraph (i) related to
software and documentation that closely parallels the language in DFARS
252.227-7037, paragraph (j).
[[Page 80263]]
C. Seeking Public Comment on Additional Topics
In addition to seeking public comment on the substance of the draft
DFARS revisions, DoD is also seeking information regarding any
corresponding change in the burden, including associated costs or
savings, resulting from contractors and subcontractors complying with
the draft revised DFARS implementation. More specifically, DoD is
seeking information regarding any anticipated increase or decrease in
such burden and costs relative to the burden and costs associated with
complying with the current DFARS implementing language.
List of Subjects in 48 CFR Parts 227 and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
[FR Doc. 2023-25406 Filed 11-16-23; 8:45 am]
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