[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80258-80260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25407]
[[Page 80258]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 207, 215, 227, and 252
[Docket DARS-2023-0044; Req No. DARS-2024-00016-FR]
RIN 0750-AL24
Defense Federal Acquisition Regulation Supplement: Modular Open
Systems Approaches (DFARS Case 2021-D005)
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 certain elements of sections of the National
Defense Authorization Acts for Fiscal Years 2012, 2017, and 2021, which
establish contract requirements that enable modular open system
approaches. In addition to the request for written comments, 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
14, 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 7, 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
2021-D005, using any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2021-D005.'' Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2021-
D005'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2021-D005 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 certain elements of
section 804 of the National Defense Authorization Act (NDAA) for FY
2021 (Pub. L. 116-283), section 809 of the NDAA for FY 2017 (Pub. L.
114-328), and section 815 of the NDAA for FY 2012 (Pub. L. 112-81).
These statutes apply to DoD only; they do not impact other Federal
agencies. Sections 804, 809, and 815 amended 10 U.S.C. 2320 (currently
10 U.S.C. 3771), and section 804 amended 10 U.S.C. 2446a (currently 10
U.S.C. 4401).
Sections 804 and 809 address rights in technical data for
interfaces developed exclusively at private expense or with mixed
funding. To the maximum extent practicable, section 804 also requires
that DoD solicitations and contracts include modular system interfaces
for modular systems deemed relevant in the acquisition strategy or
other requirements documentation, and other contract deliverables that
enable modular open system approaches. Section 815 addresses rights in
technical data necessary for segregation and reintegration activities.
DoD previously published in the Federal Register proposed DFARS
revisions to implement some of these statutory revisions 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. As part of the
resumption and reorganization of the DFARS data rights cases after the
conclusion of the Government-Industry Advisory Panel, this statutory
subject matter has been broken out in this separate case.
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 elements of the aforementioned NDAA
sections, which establish contract requirements that enable modular
open system approaches.
Registration: Individuals wishing to participate in the virtual
meeting must register by December 7, 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 2021-D005'' 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 2021-D005'' 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
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available in the Federal eRulemaking Portal at http://www.regulations.gov, by searching for ``DFARS Case 2021-D005'' 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 2021-D005. The following is
a summary of the approach DoD is considering and the feedback DoD is
seeking from industry and the public.
A. New or Updated Terms and Definitions Related to Modular Open System
Approaches (MOSA)
DoD is considering a revision to the DFARS to include various MOSA-
related terms that are adopted or adapted from 10 U.S.C. 3771 and 4401
(formerly 10 U.S.C. 2320 and 2446a), such as ``desired modularity'',
``interfaces'', ``major system component'', ``major system platform'',
``modular open system approach'', ``modular system'', and ``modular
system interface.'' To the extent practicable, the DFARS definitions of
these terms parallel those provided in the statutes. Although some of
these terms are limited to weapon systems or major defense acquisition
programs, 10 U.S.C. 4401 requires application of MOSA to all defense
acquisition programs to the maximum extent practicable. To resolve
these scope of applicability issues, the revisions under consideration
do not limit the above terms to weapon systems or major systems.
However, when required in accordance with 10 U.S.C. 3771 and section
804 of the NDAA for FY 2021, limitations regarding certain types of
programs or systems are added to the guidance for contracting officers
and the clauses.
In addition, DoD is considering updates to existing terms to enable
the MOSA objectives of the statutes being implemented. For example, the
revisions under consideration update the term ``form, fit, and function
data'' to include the overall characteristics of an item, component, or
process that enable modular open system approaches. These revisions are
made in the clauses at DFARS 252.227-7013, Rights in Technical Data--
Other Than Commercial Products or Commercial Services; 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.
The revisions under consideration clarify the definition of ``form,
fit, and function data'' by incorporating additional elements that
``permit identification of physically or functionally equivalent items
or processes'' from the Federal Acquisition Regulation definition of
``form, fit, and function data'', such as configuration, mating, and
attachment characteristics. The revisions under consideration also add
similar MOSA-enabling characteristics to this definition that ``permit
identification of physically or functionally equivalent items or
processes'', such as architecture, logical, interface,
interoperability, compatibility characteristics. For the same reasons,
the analogous term ``form, fit, and function software'' is added to
DFARS 252.227-7014, Rights in Other Than Commercial Computer Software
and Other Than Commercial Computer Software Documentation, and 252.227-
7018, as well as the guidance for contracting officers. The revisions
under consideration delineate the scope of these terms by expressly
indicating that these terms do not include detailed manufacturing and
process data, computer programs, or source code.
In addition, new terms ``interface specification'', ``interface
implementation data'', and ``interface implementation software'' are
added to 252.227-7013, 252.227-7014, 252.227-7015, and 252.227-7018.
The updated definition of ``form, fit, and function data'' creates a
need for the new DFARS term ``interface specifications'', which is a
subset of form, fit, and function data or form, fit, and function
software that pertains to or describes an interface. To enable the MOSA
principles in sections 804 of the NDAA for FY 2021, 809 of the NDAA for
FY 2017, and 815 of the NDAA for FY 2012, the terms ``interface
implementation data'' (IID) and ``interface implementation software''
(IIS) are added to capture MOSA-enabling technical data and software
that provide a greater level of detail than form, fit, and function
data and software regarding a developer's implementation of an
interface. In particular, IID is defined as technical data that--
(i) Describes the detailed steps, sequences, characteristics, and
conditions used or specified by the developer to implement an
interface; and
(ii) 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.
Similarly, IIS is defined as computer software that--
(i) Describes the detailed steps, sequences, characteristics, and
conditions used or specified by the developer to implement an
interface; and
(ii) Has sufficient detail necessary to permit segregation of
computer software from, or reintegration of that software (or a
physically or functionally equivalent item or process) with, other
software.
A related DFARS Case 2019-D044, Rights in Technical Data,
implements 10 U.S.C. 3772(a)(9), which references sections of 10 U.S.C.
3771 that are implemented in this case. Accordingly, the MOSA-related
definitions and other content under consideration in this case are
consistent with proposed revisions in DFARS 2019-D044 for which an
advance notice of proposed rulemaking is being published on the same
date as these proposed revisions for DFARS Case 2021-D005. DoD
recommends review and consideration of both of these cases in tandem
for a more holistic view of the proposed revisions for these related
subject matters.
B. License Rights Related to Interface Data and Software
DoD is considering a revision to the DFARS to implement statutory
amendments to 10 U.S.C. 3771 (formerly 10 U.S.C. 2320) related to
technical data rights. In addition, DoD is considering analogous
changes to the DFARS related to software rights. These amendments
primarily affect: (1) the types of technical data and software for
which the Government has a ``Government purpose rights'' license; and
(2) instances when disclosure outside of the Government is permitted
for technical data or software related to privately developed
technology.
Consistent with 10 U.S.C. 3771(b)(4)(A)(ii) (formerly 10 U.S.C.
2320(a)(2)(D)(i)(II)), the definition of the term ``limited rights'' is
revised to permit disclosure outside the Government if the
reproduction, release, disclosure, or use is a release or disclosure of
interface implementation data necessary for the segregation of an item
or process from, or the reintegration of that item or process (or a
physically or functionally equivalent item or process) with, other
items or processes, subject to existing protections in the clauses
(e.g., notice and nondisclosure agreements). Similarly, the definition
of the term ``restricted rights'' is revised to permit contractors or
subcontractors to use, modify, reproduce, perform, display, release, or
disclose interface implementation software necessary for segregation of
computer software from, or reintegration of that software (or
functionally equivalent software) with, other
[[Page 80260]]
computer software, subject to existing protections in the clauses.
Consistent with 10 U.S.C. 3771(b)(7) (formerly 10 U.S.C.
2320(a)(2)(G)), the license grant sections in DFARS 252.227-7013, DFARS
252.227-7014, DFARS 252.227-7015, and DFARS 252.227-7018 are updated to
provide the Government with a ``Government purpose rights'' license to
interface implementation data or software pertaining to a modular
system interface--
(i) Used in a modular open system approach;
(ii) For a modular system connected to a weapon system, major
system, or major system component;
(iii) Developed exclusively at private expense; and
(iv) Identified in a solicitation or a contract.
Similarly, these requirements are applied to commercial software in
the guidance at DFARS 227.7202-3(c) because there is no clause for
commercial computer software. The existing guidance to contracting
officers for commercial software centers around the standard customer
licenses customarily provided to the public, unless the standard
license does not meet the needs of the Government. To fit within this
existing licensing framework for commercial software, the guidance
under consideration at DFARS 227.7202-3(c) establishes the Government
needs regarding license rights to support modular open systems
approaches or modular systems.
DoD's approach to defining form, fit, and function data and
software, IID, and IIS was critical in implementing the above license
scheme in 10 U.S.C. 3771 (formerly 10 U.S.C. 2320). As discussed, IID
and IIS provide a greater level of detail than form, fit, and function
data and software. However, IID and IIS only have the level of detail
necessary to enable segregation and reintegration activities. There
were three objectives behind DoD's approach to defining these terms and
developing this license scheme: (1) clarifying the scope of form, fit,
and function data and software to better enable the MOSA objectives of
the statutes being implemented; (2) limiting overlap and avoiding
confusion between IID or IIS and form, fit, and function data or
software; and (3) providing clear boundaries on instances when limited
rights data and restricted rights software that is IID or IIS may be
disclosed outside of the Government. To accomplish this last objective
and protect the private technology development investments of
contractors, content requirements are included in the definitions of
IID and IIS, and requirements related to the purpose of the
Government's authorized use and release of such data and software are
included in the limited rights and restricted rights definitions.
In addition, the revisions under consideration incorporate the new
term ``form, fit, and function software'' within the license grant
section of the software rights clauses. Because the Government has an
unlimited rights license in form, fit, and function data, DFARS
252.227-7014, DFARS 252.227-7018, and the guidance for contracting
officers related to commercial software at DFARS 227.7202-3(c)(1) are
revised to indicate that the Government has an unlimited rights license
in form, fit, and function software.
C. MOSA-Related Requirements for Acquisition Plans
In accordance with section 804(a)(2)(B) and (C), DoD is considering
new requirements for acquisition plans in DFARS 207.103(i), which
require that solicitations and contracts for new or existing systems
identify modular system interfaces and certain MOSA-related technical
data or software, to the maximum extent practicable. The new guidance
for acquisition plans also requires that bilateral contract
modifications or other contracts include these MOSA-related
requirements, when the existing contract for a new or existing system
does not include these requirements.
To enable application of these requirements of section 804(a)(2)(B)
and (C) to commercial software, the revisions under consideration at
DFARS 227.7102-1(a) and 227.7202-1(c)(1) expressly indicate that the
Government may require delivery of form, fit, and function software and
the MOSA-related commercial technical data and software that is not
customarily provided to the public in the above solicitation and
contract requirements.
D. MOSA-Related Revisions Related to Contractor Assertions of Data and
Software Rights Restrictions
In view of the amendments to former 10 U.S.C. 2320(a)(2)(G), DoD is
considering revisions to requirements related to contractor assertions
of data and software rights restrictions. Generally, development at
private expense, either exclusively or partially, is the basis for
asserting restrictions. However, the revisions under consideration
indicate that the Government has a government purpose rights license to
interface implementation data or interface implementation software
pertaining to a modular system interface, as described in paragraph
(b)(2) of DFARS 252.227-7013, 252.227-7014, and 252.227-7018.
Accordingly, DFARS 252.227-7013(e), 252.227-7014(e), 252.227-7017(d),
and 252.227-7018(e) are revised to include these new bases for
contractor assertions for restrictions. The revisions under
consideration also include a requirement for offerors and contractors
to identify and describe modular system interfaces, if applicable.
E. Seeking Public Comment on Additional Topics
In addition to seeking public comment on the substance of the
initial 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 initial draft 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 207, 215, 227, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
[FR Doc. 2023-25407 Filed 11-16-23; 8:45 am]
BILLING CODE 6001-FR-P