Proposed Rule2022-26692
Defense Federal Acquisition Regulation Supplement: Update of Challenge Period for Validation of Asserted Restrictions on Technical Data and Computer Software (DFARS Case 2022-D016)
Primary source
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Published
December 16, 2022
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is seeking information that will assist in the development of a revision to the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2012, which addresses the validation of proprietary data restrictions. In addition to the request for written comments on this advance notice of proposed rulemaking, DoD will hold a public meeting to hear the views of interested parties.
Full Text
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<title>Federal Register, Volume 87 Issue 241 (Friday, December 16, 2022)</title>
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[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Proposed Rules]
[Pages 77055-77056]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26692]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
[Docket DARS-2022-0030]
RIN 0750-AL67
Defense Federal Acquisition Regulation Supplement: Update of
Challenge Period for Validation of Asserted Restrictions on Technical
Data and Computer Software (DFARS Case 2022-D016)
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 a section of the National Defense Authorization
Act for Fiscal Year 2012, which addresses the validation of proprietary
data restrictions. In addition to the request for written comments on
this advance notice of proposed rulemaking, 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 February
14, 2023, to be considered in the formation of a proposed rule.
Public Meeting: A virtual public meeting will be held on January
26, 2023, from 1:00 p.m. to 5:00 p.m., Eastern time. 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 January 19, 2023.
Information on how to register for the public meeting may be found
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
2022-D016, using any of the following methods:
[cir] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Search for ``DFARS Case 2022-D016.'' Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2022-
D016'' on any attached documents.
[cir] Email: <a href="/cdn-cgi/l/email-protection#412e32256f2527203332012c20282d6f2c282d"><span class="__cf_email__" data-cfemail="7b14081f551f1d1a09083b161a121755161217">[email protected]</span></a>. Include DFARS Case 2022-D016 in
the subject line of the message.
Comments received generally will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. To confirm receipt of your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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(b) of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012
(Pub. L. 112-81). This statute applies to DoD only; it does not impact
other Federal agencies. Section 815(b) amended 10 U.S.C. 2321
(redesignated as 10 U.S.C. 3782) by increasing the validation period
for asserted restrictions from three years to six years. Section 815(b)
also amended 10 U.S.C. 2321 to provide an exception to the prescribed
time limit for validation of asserted restrictions if the technical
data involved are the subject of a fraudulently asserted use or release
restriction.
DoD previously published proposed DFARS revisions to implement
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 on Technical Data Rights (the
813 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 813 Panel, this statutory subject matter 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 section 815(b) of the NDAA for FY 2012.
[[Page 77056]]
Registration: Individuals wishing to participate in the virtual
meeting must register by January 19, 2023, to facilitate entry to the
meeting. Interested parties may register for the meeting by sending the
following information via email to <a href="/cdn-cgi/l/email-protection#e7889483c98381869594a78a868e8bc98a8e8b"><span class="__cf_email__" data-cfemail="56392532783230372425163b373f3a783b3f3a">[email protected]</span></a> and including
``Public Meeting, DFARS Case 2022-D016'' in the subject line of the
message:
<bullet> Full name.
<bullet> Valid email address, which will be used for admittance to
the meeting.
<bullet> 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.
<bullet> Company or organization name.
<bullet> 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 <a href="/cdn-cgi/l/email-protection#1e716d7a307a787f6c6d5e737f777230737772"><span class="__cf_email__" data-cfemail="cba4b8afe5afadaab9b88ba6aaa2a7e5a6a2a7">[email protected]</span></a> 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 2022-D016'' 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: <a href="https://www.acq.osd.mil/dpap/dars/technical_data_rights.html">https://www.acq.osd.mil/dpap/dars/technical_data_rights.html</a>.
III. Discussion and Analysis
An initial draft of the proposed DFARS revisions is available in
the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, by
searching for ``DFARS Case 2022-D016'' and viewing the ``Supporting &
Related Material''. The strawman is also available at <a href="https://www.acq.osd.mil/dpap/dars/change_notices.html">https://www.acq.osd.mil/dpap/dars/change_notices.html</a> under the publication
notice for DFARS Case 2022-D016. The following is a summary of DoD's
proposed approach and the feedback DoD is seeking from industry and the
public.
A. Validation Period for Asserted Restrictions
Consistent with 10 U.S.C. 2321(d)(2) (redesignated as 10 U.S.C.
3782(b)), DoD is proposing to revise the contract clause at DFARS
252.227-7037, Validation of Restrictive Markings on Technical Data. In
particular, the proposed revisions to DFARS 252.227-7037(i) provide
that the validation period for asserted restrictions is six years
(rather than the three-year period in the current clause) from final
payment on a contract or delivery of the technical data to the
Government, whichever is later. The proposed revisions to paragraph (i)
of the clause at 252.227-7037 also add the new statutory exception to
the prescribed time limit for validation of asserted restrictions if
the technical data involved are the subject of a fraudulently asserted
use or release restriction. Technical corrections to the numbering of
the revised paragraphs are also proposed.
Consistent with long-standing DFARS implementation of the
procedures for validation of asserted restrictions, the proposed
revisions required by statute for technical data have also been
proposed for the analogous clause covering noncommercial computer
software at DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software.
B. 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 Part 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
[FR Doc. 2022-26692 Filed 12-15-22; 8:45 am]
BILLING CODE 5001-06-P
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