Defense Federal Acquisition Regulation Supplement: Rights in Technical Data (DFARS Case 2016-D008), 65565-65567 [2016-22570]
Download as PDF
<![CDATA[
Federal Register / Vol. 81, No. 185 / Friday, September 23, 2016 / Rules and Regulations
236.215 Special procedures for costreimbursement contracts for construction.
For contracts in connection with a
military construction project or military
family housing project, see the
prohibition at 216.301–3.
■ 5. Revise section 236.271 to read as
follows:
236.271
Cost-plus-fixed-fee contracts.
Annual military construction
appropriations acts restrict the use of
cost-plus-fixed-fee contracts (see
216.306(c)). See also 216.301–3
regarding the prohibition on the use of
certain cost-reimbursement contracts in
connection with a military construction
project or military family housing
project.
[FR Doc. 2016–22569 Filed 9–22–16; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 227 and 252
[Docket DARS–2016–0010]
RIN 0750–AI91
Defense Federal Acquisition
Regulation Supplement: Rights in
Technical Data (DFARS Case 2016–
D008)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule to
amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2016 that addresses rights in
technical data relating to major weapon
systems, expanding application of the
presumption that a commercial item has
been developed entirely at private
expense.
SUMMARY:
Effective September 23, 2016.
Ms.
Amy G. Williams, telephone 571–372–
6106.
DATES:
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
rmajette on DSK2TPTVN1PROD with RULES
I. Background
DoD published a proposed rule in the
Federal Register at 81 FR 28812 on May
10, 2016, to implement section 813(a) of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2016 (Pub.
L. 114–92). Section 813(a) modifies 10
U.S.C. 2321(f) to address rights in
VerDate Sep<11>2014
15:10 Sep 22, 2016
Jkt 238001
technical data relating to major weapon
systems.
Until now, except for commercially
available off-the-shelf (COTS) items, a
contracting officer’s challenge to
asserted restrictions on technical data
relating to a major system was sustained
unless the contractor or subcontractor
submitted information demonstrating
that the item was developed exclusively
at private expense.
Section 813(a) revised 10 U.S.C.
2321(f) in two primary ways: (1) The
major systems rule was narrowed to
apply only to major weapon systems;
and (2) the exception to the major
systems rule for commercially available
off-the-shelf (COTS) items was
expanded to include three additional
exceptions. More specifically, the
formerly COTS-only exception was
expanded to include (i) COTS items
with modifications of a type customarily
available in the commercial marketplace
or minor modifications made to meet
Federal Government requirements; (ii)
commercial subsystems or components
of a major weapon system, if the major
weapon system was acquired as a
commercial item in accordance with 10
U.S.C. 2379(a); and (iii) components of
a subsystem, if the subsystem was
acquired as a commercial item in
accordance with 10 U.S.C. 2379(b).
There were no public comments
submitted in response to the proposed
rule. There are no significant changes
from the proposed rule made in the final
rule.
Although there were no comments
received on the substance of the
proposed rule, DoD did receive a
request to suspend the rulemaking
process on any case (including this case)
relating to rights in technical data until
such time as the final report of the
Government-Industry Advisory Panel
(the Panel), established in accordance
with section 813(b) of the NDAA for FY
2016, has been submitted to Congress.
After consultation with the Chair of the
Panel, DoD determined to proceed with
publication of the final rule on this case.
This case implements section 813(a) of
the NDAA for FY 2016, the same section
that set up the Panel, with no indication
that DoD should delay implementation.
Furthermore, the law is very
prescriptive and the proposed rule is a
nearly verbatim implementation of the
statutory language, so there could be no
substantive change to this rule without
a corresponding statutory change to 10
U.S.C. 2321. The statute was effective
upon implementation, and is expected
to be beneficial to industry, including
small businesses.
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
65565
II. Discussion and Analysis
In order to implement the statutory
changes for validation of asserted
restrictions on technical data, and apply
the revised requirements and
procedures to validation of asserted
restrictions on computer software, this
final rule amends—
• DFARS 227.7103–13, Government
right to review, verify, challenge, and
validate asserted restrictions;
• DFARS 227.7203–13, Government
right to review, verify, challenge, and
validate asserted restrictions;
• DFARS 252.227–7019, Validation of
Asserted Restrictions—Computer
Software; and
• DFARS 252.227–7037, Validation of
Restrictive Markings on Technical Data.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This final rule does not add any new
provisions or clauses or add new
requirements to existing provision or
clauses. Rather, when acquiring major
weapon systems, it expands the
circumstances relating to commerciality
in which the contracting officer shall
presume that development was
exclusively at private expense.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
This rule was initiated to implement
section 813(a) of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2016 (Pub. L. 114–92). The
objective of this rule is to reduce the
requirement to respond to Government
E:\FR\FM\23SER1.SGM
23SER1
rmajette on DSK2TPTVN1PROD with RULES
65566
Federal Register / Vol. 81, No. 185 / Friday, September 23, 2016 / Rules and Regulations
challenges of restricted rights, by
expanding the applicability of the
presumption regarding development
exclusively at private expense in
accordance with section 813(a) of the
NDAA for FY 2016.
There were no public comments in
response to the initial regulatory
flexibility analysis.
DoD cannot accurately determine the
number of small entities that will be
affected by this change in the
regulations, because DoD does not have
sufficient information about subcontract
awards of subsystems and components
of major weapon systems. However,
DoD estimates an annual reduction of 50
prechallenge requests for information
and 2 challenges of asserted technical
data restrictions. DoD further estimates,
based on data from the DoD FY 2014
Small Business Procurement Scorecard,
that this reduction in challenges will
affect about 17 small businesses (52 ×
0.33).
The final rule reduces the
requirement to respond to Government
challenge of restricted rights. Under
current regulations, the presumption
regarding development exclusively at
private expense does not apply to major
systems or subsystems or components
thereof, except for commercially
available off-the-shelf items. This rule
expands applicability of the
presumption regarding development
exclusively at private expense with
regard to a major weapon system, or a
subsystem or component thereof, to
cover—
• A commercial subsystem or
component of a major weapon system,
if the major weapon system was
acquired as a commercial item in
accordance with DFARS subpart 234.70
(10 U.S.C. 2379(a));
• A component of a subsystem, if the
subsystem was acquired as a
commercial item in accordance with
DFARS subpart 234.70 (10 U.S.C.
2379(b)); and
• Commercially available off-the-shelf
items with modifications of a type
customarily available in the commercial
marketplace or minor modifications
made to meet Federal Government
requirements.
The classes of small entities that will
be affected by this reduction are small
businesses that provide any items in the
above categories that are not challenged
due to the new statute.
This rule reduces the burden on small
entities to the maximum extent
permitted by the statute.
VI. Paperwork Reduction Act
This rule contains information
collection requirements that have been
VerDate Sep<11>2014
15:10 Sep 22, 2016
Jkt 238001
approved by the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
This information collection requirement
has been assigned OMB Control Number
0704–0369, entitled ‘‘Defense Federal
Acquisition Regulation Supplement
(DFARS) Subpart 227.71, Rights in
Technical Data, and Subpart 227.72,
Rights in Computer Software and
Computer Software Documentation, and
related provisions and clauses.’’
List of Subjects in 48 CFR Parts 227 and
252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 227 and 252
are amended as follows:
■ 1. The authority citation for parts 227
and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 227—PATENTS, DATA, AND
COPYRIGHTS
2. Amend section 227.7103–13 by—
a. Revising the section heading;
b. In paragraph (c)(1), removing
‘‘commercial item, component, or
process’’ and adding ‘‘commercial item’’
in its place and removing ‘‘the item,
component or process’’ and adding
‘‘that item’’ in its place; and
■ c. Revising paragraphs (c)(2)(i) and
(ii).
The revisions read as follows:
■
■
■
227.7103–13 Government right to review,
verify, challenge, and validate asserted
restrictions.
*
*
*
*
*
(c) * * *
(2) * * *
(i) Commercial items. Except as
provided in paragraph (c)(2)(ii) of this
section, contracting officers shall
presume that a commercial item was
developed exclusively at private
expense whether or not a contractor or
subcontractor submits a justification in
response to a challenge notice. When a
challenge is warranted, a contractor’s or
subcontractor’s failure to respond to the
challenge notice cannot be the sole basis
for issuing a final decision denying the
validity of an asserted restriction.
(ii) Major weapon systems. When the
contracting officer challenges an
asserted restriction regarding technical
data for a major weapon system or a
subsystem or component thereof on the
basis that the technology was not
developed exclusively at private
expense—
PO 00000
Frm 00036
Fmt 4700
Sfmt 4700
(A) The presumption in paragraph
(c)(2)(i) of this section applies to—
(1) A commercial subsystem or
component of a major weapon system,
if the major weapon system was
acquired as a commercial item in
accordance with subpart 234.70 (10
U.S.C. 2379(a));
(2) A component of a subsystem, if the
subsystem was acquired as a
commercial item in accordance with
subpart 234.70 (10 U.S.C. 2379(b)); and
(3) Any other component, if the
component is a commercially available
off-the-shelf item or a commercially
available off-the-shelf item with
modifications of a type customarily
available in the commercial marketplace
or minor modifications made to meet
Federal Government requirements; and
(B) In all other cases, the contracting
officer shall sustain the challenge unless
information provided by the contractor
or subcontractor demonstrates that the
item was developed exclusively at
private expense.
*
*
*
*
*
227.7203–13
[Amended]
3. Amend section 227.7203–13 by—
a. In the section heading, adding a
comma after ‘‘challenge’’;
■ b. Removing paragraph (d); and
■ c. Redesignating paragraphs (e), (f),
and (g) as paragraphs (d), (e), and (f),
respectively.
■
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Amend section 252.227–7019 by—
a. Removing the clause date ‘‘(SEP
2011)’’ and adding ‘‘(SEP 2016)’’ in its
place;
■ b. Removing paragraph (f);
■ c. Redesignating paragraphs (g), (h),
(i), and (j) as paragraphs (f), (g), (h), and
(i), respectively;
■ d. In newly redesignated paragraph
(f)(5)—
■ i. Removing ‘‘(g)(1)’’ and adding
‘‘(f)(1)’’ in its place;
■ ii. Removing ‘‘Officer will’’ and
adding ‘‘Officer shall’’ in its place; and
■ iii. Removing ‘‘paragraph (f) of this
clause and’’;
■ f. In newly redesignated paragraph
(f)(6) introductory text, removing ‘‘the
written explanation furnished pursuant
to paragraph (f)(1) of this clause, or any
other’’ and adding ‘‘any’’ in its place;
■ g. In newly redesignated paragraph
(g)(1) introductory text, removing
‘‘(h)(3)’’ and adding ‘‘(g)(3)’’ in its place;
and
■ h. In newly redesignated paragraph
(g)(3), removing ‘‘(h)(1)’’ and adding
‘‘(g)(1)’’ in its place.
■
■
E:\FR\FM\23SER1.SGM
23SER1
Federal Register / Vol. 81, No. 185 / Friday, September 23, 2016 / Rules and Regulations
5. Amend section 252.227–7037 by—
a. Removing the clause date ‘‘(JUN
2013)’’ and adding ‘‘(SEP 2016)’’ in its
place; and
■ b. Revising paragraphs (b)(1) and (2).
The revisions read as follows:
DEPARTMENT OF DEFENSE
252.227–7037 Validation of restrictive
markings on technical data.
[Docket DARS–2016–0032]
*
RIN 0750–AJ07
■
rmajette on DSK2TPTVN1PROD with RULES
■
*
*
*
*
(b) * * *
(1) Commercial items. (i) Except as
provided in paragraph (b)(2) of this
clause, the Contracting Officer will
presume that the Contractor’s or a
subcontractor’s asserted use or release
restrictions with respect to a
commercial item is justified on the basis
that the item was developed exclusively
at private expense.
(ii) The Contracting Officer will not
challenge such assertions unless the
Contracting Officer has information that
demonstrates that the commercial item
was not developed exclusively at
private expense.
(2) Major weapon systems. In the case
of a challenge to a use or release
restriction that is asserted with respect
to data of the Contractor or a
subcontractor for a major weapon
system or a subsystem or component
thereof on the basis that the major
weapon system, subsystem, or
component was developed exclusively
at private expense—
(i) The presumption in paragraph
(b)(1) of this clause applies to—
(A) A commercial subsystem or
component of a major weapon system,
if the major weapon system was
acquired as a commercial item in
accordance with DFARS subpart 234.70
(10 U.S.C. 2379(a));
(B) A component of a subsystem, if
the subsystem was acquired as a
commercial item in accordance with
DFARS subpart 234.70 (10 U.S.C.
2379(b)); and
(C) Any other component, if the
component is a commercially available
off-the-shelf item or a commercially
available off-the-shelf item with
modifications of a type customarily
available in the commercial marketplace
or minor modifications made to meet
Federal Government requirements; and
(ii) In all other cases, the challenge to
the use or release restriction will be
sustained unless information provided
by the Contractor or a subcontractor
demonstrates that the item or process
was developed exclusively at private
expense.
*
*
*
*
*
[FR Doc. 2016–22570 Filed 9–22–16; 8:45 am]
BILLING CODE 5001–06–P
VerDate Sep<11>2014
15:10 Sep 22, 2016
Jkt 238001
Defense Acquisition Regulations
System
48 CFR Part 252
Defense Federal Acquisition
Regulation Supplement: New
Designated Country—Moldova (DFARS
Case 2016–D028)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
AGENCY:
ACTION:
Final rule.
DoD is issuing a final rule to
amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to add
Moldova as a new designated country
under the World Trade Organization
Government Procurement Agreement.
SUMMARY:
DATES:
Effective September 23, 2016.
FOR FURTHER INFORMATION CONTACT:
Ms.
Amy Williams, telephone 571–372–
6176.
SUPPLEMENTARY INFORMATION:
I. Background
On June 29, 2016, the World Trade
Organization (WTO) Committee on
Government Procurement approved the
accession of Moldova to the WTO
Government Procurement Agreement
(GPA). This rule adds Moldova to the
list of WTO GPA countries wherever it
appears in the DFARS, as part of the
definition of ‘‘designated country’’.
II. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule only updates the list of
designated countries in the DFARS by
adding the newly designated country of
Moldova. The definition of ‘‘designated
country’’ is updated in each of the
following clauses; however, this
revision does not impact the clause
prescriptions for use, or applicability at
or below the simplified acquisition
threshold, or applicability to
commercial items. The clauses are:
DFARS 252.225–7017, Photovoltaic
Devices; DFARS 252.225–7021, Trade
Agreements; and DFARS 252.225–7045,
Balance of Payments Program—
Construction Material Under Trade
Agreements.
PO 00000
Frm 00037
Fmt 4700
Sfmt 4700
65567
III. Publication of This Final Rule for
Public Comment Is Not Required by
Statute
The statute that applies to the
publication of the Federal Acquisition
Regulation (FAR) is 41 U.S.C. 1707
entitled ‘‘Publication of Proposed
Regulations.’’ Paragraph (a)(1) of the
statute requires that a procurement
policy, regulation, procedure, or form
(including an amendment or
modification thereof) must be published
for public comment if it relates to the
expenditure of appropriated funds, and
has either a significant effect beyond the
internal operating procedures of the
agency issuing the policy, regulation,
procedure, or form, or has a significant
cost or administrative impact on
contractors or offerors. This final rule is
not required to be published for public
comment, because it is just updating the
lists of designated countries in order to
reflect that Moldova is now a member
of the WTO GPA. These requirements
affect only the internal operating
procedures of the Government.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
V. Regulatory Flexibility Act
The Regulatory Flexibility Act does
not apply to this rule because this final
rule does not constitute a significant
DFARS revision within the meaning of
FAR 1.501–1, and 41 U.S.C. 1707 does
not require publication for public
comment.
VI. Paperwork Reduction Act
This rule affects the information
collection requirements in the
provisions at DFARS 252.225–7018,
Photovoltaic Devices—Certificate, and
252.225–7020, Trade Agreements
Certificate, currently approved under
OMB Control Number 0704–0229,
entitled ‘‘Defense Federal Acquisition
Regulation Supplement Part 225,
E:\FR\FM\23SER1.SGM
23SER1
]]>Agencies
[Federal Register Volume 81, Number 185 (Friday, September 23, 2016)]
[Rules and Regulations]
[Pages 65565-65567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22570]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 227 and 252
[Docket DARS-2016-0010]
RIN 0750-AI91
Defense Federal Acquisition Regulation Supplement: Rights in
Technical Data (DFARS Case 2016-D008)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act for Fiscal Year 2016 that addresses
rights in technical data relating to major weapon systems, expanding
application of the presumption that a commercial item has been
developed entirely at private expense.
DATES: Effective September 23, 2016.
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-
372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 81 FR
28812 on May 10, 2016, to implement section 813(a) of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L.
114-92). Section 813(a) modifies 10 U.S.C. 2321(f) to address rights in
technical data relating to major weapon systems.
Until now, except for commercially available off-the-shelf (COTS)
items, a contracting officer's challenge to asserted restrictions on
technical data relating to a major system was sustained unless the
contractor or subcontractor submitted information demonstrating that
the item was developed exclusively at private expense.
Section 813(a) revised 10 U.S.C. 2321(f) in two primary ways: (1)
The major systems rule was narrowed to apply only to major weapon
systems; and (2) the exception to the major systems rule for
commercially available off-the-shelf (COTS) items was expanded to
include three additional exceptions. More specifically, the formerly
COTS-only exception was expanded to include (i) COTS items with
modifications of a type customarily available in the commercial
marketplace or minor modifications made to meet Federal Government
requirements; (ii) commercial subsystems or components of a major
weapon system, if the major weapon system was acquired as a commercial
item in accordance with 10 U.S.C. 2379(a); and (iii) components of a
subsystem, if the subsystem was acquired as a commercial item in
accordance with 10 U.S.C. 2379(b).
There were no public comments submitted in response to the proposed
rule. There are no significant changes from the proposed rule made in
the final rule.
Although there were no comments received on the substance of the
proposed rule, DoD did receive a request to suspend the rulemaking
process on any case (including this case) relating to rights in
technical data until such time as the final report of the Government-
Industry Advisory Panel (the Panel), established in accordance with
section 813(b) of the NDAA for FY 2016, has been submitted to Congress.
After consultation with the Chair of the Panel, DoD determined to
proceed with publication of the final rule on this case. This case
implements section 813(a) of the NDAA for FY 2016, the same section
that set up the Panel, with no indication that DoD should delay
implementation. Furthermore, the law is very prescriptive and the
proposed rule is a nearly verbatim implementation of the statutory
language, so there could be no substantive change to this rule without
a corresponding statutory change to 10 U.S.C. 2321. The statute was
effective upon implementation, and is expected to be beneficial to
industry, including small businesses.
II. Discussion and Analysis
In order to implement the statutory changes for validation of
asserted restrictions on technical data, and apply the revised
requirements and procedures to validation of asserted restrictions on
computer software, this final rule amends--
DFARS 227.7103-13, Government right to review, verify,
challenge, and validate asserted restrictions;
DFARS 227.7203-13, Government right to review, verify,
challenge, and validate asserted restrictions;
DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software; and
DFARS 252.227-7037, Validation of Restrictive Markings on
Technical Data.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This final rule does not add any new provisions or clauses or add
new requirements to existing provision or clauses. Rather, when
acquiring major weapon systems, it expands the circumstances relating
to commerciality in which the contracting officer shall presume that
development was exclusively at private expense.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
This rule was initiated to implement section 813(a) of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L.
114-92). The objective of this rule is to reduce the requirement to
respond to Government
[[Page 65566]]
challenges of restricted rights, by expanding the applicability of the
presumption regarding development exclusively at private expense in
accordance with section 813(a) of the NDAA for FY 2016.
There were no public comments in response to the initial regulatory
flexibility analysis.
DoD cannot accurately determine the number of small entities that
will be affected by this change in the regulations, because DoD does
not have sufficient information about subcontract awards of subsystems
and components of major weapon systems. However, DoD estimates an
annual reduction of 50 prechallenge requests for information and 2
challenges of asserted technical data restrictions. DoD further
estimates, based on data from the DoD FY 2014 Small Business
Procurement Scorecard, that this reduction in challenges will affect
about 17 small businesses (52 x 0.33).
The final rule reduces the requirement to respond to Government
challenge of restricted rights. Under current regulations, the
presumption regarding development exclusively at private expense does
not apply to major systems or subsystems or components thereof, except
for commercially available off-the-shelf items. This rule expands
applicability of the presumption regarding development exclusively at
private expense with regard to a major weapon system, or a subsystem or
component thereof, to cover--
A commercial subsystem or component of a major weapon
system, if the major weapon system was acquired as a commercial item in
accordance with DFARS subpart 234.70 (10 U.S.C. 2379(a));
A component of a subsystem, if the subsystem was acquired
as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C.
2379(b)); and
Commercially available off-the-shelf items with
modifications of a type customarily available in the commercial
marketplace or minor modifications made to meet Federal Government
requirements.
The classes of small entities that will be affected by this
reduction are small businesses that provide any items in the above
categories that are not challenged due to the new statute.
This rule reduces the burden on small entities to the maximum
extent permitted by the statute.
VI. Paperwork Reduction Act
This rule contains information collection requirements that have
been approved by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35). This information
collection requirement has been assigned OMB Control Number 0704-0369,
entitled ``Defense Federal Acquisition Regulation Supplement (DFARS)
Subpart 227.71, Rights in Technical Data, and Subpart 227.72, Rights in
Computer Software and Computer Software Documentation, and related
provisions and clauses.''
List of Subjects in 48 CFR Parts 227 and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 227 and 252 are amended as follows:
0
1. The authority citation for parts 227 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
2. Amend section 227.7103-13 by--
0
a. Revising the section heading;
0
b. In paragraph (c)(1), removing ``commercial item, component, or
process'' and adding ``commercial item'' in its place and removing
``the item, component or process'' and adding ``that item'' in its
place; and
0
c. Revising paragraphs (c)(2)(i) and (ii).
The revisions read as follows:
227.7103-13 Government right to review, verify, challenge, and
validate asserted restrictions.
* * * * *
(c) * * *
(2) * * *
(i) Commercial items. Except as provided in paragraph (c)(2)(ii) of
this section, contracting officers shall presume that a commercial item
was developed exclusively at private expense whether or not a
contractor or subcontractor submits a justification in response to a
challenge notice. When a challenge is warranted, a contractor's or
subcontractor's failure to respond to the challenge notice cannot be
the sole basis for issuing a final decision denying the validity of an
asserted restriction.
(ii) Major weapon systems. When the contracting officer challenges
an asserted restriction regarding technical data for a major weapon
system or a subsystem or component thereof on the basis that the
technology was not developed exclusively at private expense--
(A) The presumption in paragraph (c)(2)(i) of this section applies
to--
(1) A commercial subsystem or component of a major weapon system,
if the major weapon system was acquired as a commercial item in
accordance with subpart 234.70 (10 U.S.C. 2379(a));
(2) A component of a subsystem, if the subsystem was acquired as a
commercial item in accordance with subpart 234.70 (10 U.S.C. 2379(b));
and
(3) Any other component, if the component is a commercially
available off-the-shelf item or a commercially available off-the-shelf
item with modifications of a type customarily available in the
commercial marketplace or minor modifications made to meet Federal
Government requirements; and
(B) In all other cases, the contracting officer shall sustain the
challenge unless information provided by the contractor or
subcontractor demonstrates that the item was developed exclusively at
private expense.
* * * * *
227.7203-13 [Amended]
0
3. Amend section 227.7203-13 by--
0
a. In the section heading, adding a comma after ``challenge'';
0
b. Removing paragraph (d); and
0
c. Redesignating paragraphs (e), (f), and (g) as paragraphs (d), (e),
and (f), respectively.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 252.227-7019 by--
0
a. Removing the clause date ``(SEP 2011)'' and adding ``(SEP 2016)'' in
its place;
0
b. Removing paragraph (f);
0
c. Redesignating paragraphs (g), (h), (i), and (j) as paragraphs (f),
(g), (h), and (i), respectively;
0
d. In newly redesignated paragraph (f)(5)--
0
i. Removing ``(g)(1)'' and adding ``(f)(1)'' in its place;
0
ii. Removing ``Officer will'' and adding ``Officer shall'' in its
place; and
0
iii. Removing ``paragraph (f) of this clause and'';
0
f. In newly redesignated paragraph (f)(6) introductory text, removing
``the written explanation furnished pursuant to paragraph (f)(1) of
this clause, or any other'' and adding ``any'' in its place;
0
g. In newly redesignated paragraph (g)(1) introductory text, removing
``(h)(3)'' and adding ``(g)(3)'' in its place; and
0
h. In newly redesignated paragraph (g)(3), removing ``(h)(1)'' and
adding ``(g)(1)'' in its place.
[[Page 65567]]
0
5. Amend section 252.227-7037 by--
0
a. Removing the clause date ``(JUN 2013)'' and adding ``(SEP 2016)'' in
its place; and
0
b. Revising paragraphs (b)(1) and (2).
The revisions read as follows:
252.227-7037 Validation of restrictive markings on technical data.
* * * * *
(b) * * *
(1) Commercial items. (i) Except as provided in paragraph (b)(2) of
this clause, the Contracting Officer will presume that the Contractor's
or a subcontractor's asserted use or release restrictions with respect
to a commercial item is justified on the basis that the item was
developed exclusively at private expense.
(ii) The Contracting Officer will not challenge such assertions
unless the Contracting Officer has information that demonstrates that
the commercial item was not developed exclusively at private expense.
(2) Major weapon systems. In the case of a challenge to a use or
release restriction that is asserted with respect to data of the
Contractor or a subcontractor for a major weapon system or a subsystem
or component thereof on the basis that the major weapon system,
subsystem, or component was developed exclusively at private expense--
(i) The presumption in paragraph (b)(1) of this clause applies to--
(A) A commercial subsystem or component of a major weapon system,
if the major weapon system was acquired as a commercial item in
accordance with DFARS subpart 234.70 (10 U.S.C. 2379(a));
(B) A component of a subsystem, if the subsystem was acquired as a
commercial item in accordance with DFARS subpart 234.70 (10 U.S.C.
2379(b)); and
(C) Any other component, if the component is a commercially
available off-the-shelf item or a commercially available off-the-shelf
item with modifications of a type customarily available in the
commercial marketplace or minor modifications made to meet Federal
Government requirements; and
(ii) In all other cases, the challenge to the use or release
restriction will be sustained unless information provided by the
Contractor or a subcontractor demonstrates that the item or process was
developed exclusively at private expense.
* * * * *
[FR Doc. 2016-22570 Filed 9-22-16; 8:45 am]
BILLING CODE 5001-06-P
