Defense Federal Acquisition Regulation Supplement: Modular Open Systems Approaches (DFARS Case 2021-D005), 80258-80260 [2023-25407]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[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]



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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 https://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

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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