Defense Federal Acquisition Regulation Supplement: Rights in Technical Data (DFARS Case 2019-D044), 80260-80263 [2023-25406]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[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

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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).

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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]
BILLING CODE 6001-FR-P