Proposed Rule2024-21097
Defense Federal Acquisition Regulation Supplement: Public Access to Results of Federally Funded Research (2020-D028)
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Published
September 26, 2024
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a recommendation of the Government Accountability Office regarding DoD-funded fundamental research.
Full Text
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<title>Federal Register, Volume 89 Issue 187 (Thursday, September 26, 2024)</title>
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[Federal Register Volume 89, Number 187 (Thursday, September 26, 2024)]
[Proposed Rules]
[Pages 79003-79005]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21097]
Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 /
Proposed Rules
[[Page 79003]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 235 and 252
[Docket DARS-2024-0027]
RIN 0750-AL43
Defense Federal Acquisition Regulation Supplement: Public Access
to Results of Federally Funded Research (2020-D028)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a recommendation of the
Government Accountability Office regarding DoD-funded fundamental
research.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before November 25, 2024, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2020-D028, using
either of the following methods:
[cir] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Search for DFARS Case 2020-D028. Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2020-
D028'' on any attached documents.
[cir] Email: <a href="/cdn-cgi/l/email-protection#81eef2e5afe5e7e0f3f2c1ece0e8edafece8ed"><span class="__cf_email__" data-cfemail="533c20377d3735322120133e323a3f7d3e3a3f">[email protected]</span></a>. Include DFARS Case 2020-D028 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: Mr. Jon M. Snyder, telephone 703-945-
5341.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement a recommendation
made by the Government Accountability Office (GAO) in its report GAO-
20-81, Additional Actions Needed to Improve Public Access to Research
Results, published in November 2019. GAO reviewed the progress agencies
have made in implementing their plans to increase public access to
Federally funded research results (publications and data), as called
for in a 2013 Office of Science and Technology Policy (OSTP)
memorandum. In this report, GAO recommended that DoD take steps to
ensure appropriate agency-funded research data are readily findable and
accessible to the public.
The OSTP memorandum of February 22, 2013, entitled ``Increasing
Access to the Results of Federal Funded Scientific Research'', directed
that each Federal agency with over $100 million in annual research and
development expenditures develop a plan to support increased public
access to the results of research funded by the Federal Government.
This includes any results published in peer-reviewed scholarly
publications that are based on research that directly arises from
Federal funds. The required plan's objectives were developed with input
from the National Science and Technology Council and public
consultation in compliance with the America COMPETES Reauthorization
Act of 2010 (Pub. L. 111-358).
II. Discussion and Analysis
This rule proposes changes to DFARS part 235 and adds two clauses
that require contractors to submit final peer-reviewed manuscripts to
the Defense Technical Information Center's publicly accessible
repository and to develop and maintain a data management plan.
Definitions are proposed at DFARS 235.001 for ``data'', ``data
management plan'', ``fundamental research'', and ``peer-reviewed''. A
policy statement reflects that for DoD-funded fundamental research,
data management planning must be an integral part of research planning
as required by Department of Defense Instruction 3200.12, DoD
Scientific and Technical Information Program (STIP). DFARS 235.011
provides guidance for the submission of peer-reviewed manuscripts and
development and submission of data management plans. Prescriptions are
added at DFARS 235.072 for the following new DFARS part 252 contract
clauses: (1) 252.235-70XX, Peer-Reviewed Manuscripts; and (2) 252.235-
70YY, Data Management Plan. The clauses apply to solicitations and
contracts that include fundamental research funded in whole or in part
by DoD.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
This proposed rule proposes to create two new clauses: (1) DFARS
252.235-70XX, Peer-Reviewed Manuscripts; and (2) DFARS 252.235-70YY,
Data Management Plan. The clauses at DFARS 252.235-70XX and 252.235-
70YY are prescribed at DFARS 235.702 for use in research and
development solicitations and contracts that include fundamental
research funded in whole or in part by DoD. The clauses are applicable
to contracts at or below the SAT. The clauses are not applicable to
contracts for the acquisition of commercial products including COTS
items and for the acquisition of commercial services. Not applying the
clauses to contracts valued at or below the SAT would exclude contracts
intended to be covered by this proposed rule and undermine the
overarching purpose of the proposed rule, given GAO's recommendation
that DoD take steps to ensure appropriate agency-funded research data
are readily findable and accessible to the public.
IV. Expected Impact of the Rule
The Defense Technical Information Center is responsible for
collecting all scientific and technical reports. This proposed rule,
when finalized, will require contractors under research and development
contracts that include fundamental research, funded in whole or in part
by DoD, to submit the author's final peer-reviewed manuscript to one of
the Defense Technical Information Center's publicly accessible
repositories.
Currently, a contractor's data management plan is not required for
research and development contracts. The proposed rule, when finalized,
will require contractors awarded research and development contracts to
implement and maintain a data management plan throughout the
performance of the contract.
This proposed rule will ensure the results of fundamental research,
funded in whole or in part by DoD, will be made as widely available as
permitted by law, regulation, or policy to ensure the accuracy,
validity, and reproducibility of the scientific results.
V. 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
[[Page 79004]]
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, as amended.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule, when finalized, to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because it is limited to contracts for DoD funded fundamental
research. However, an initial regulatory flexibility analysis has been
performed and is summarized as follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a recommendation made by the
Government Accountability Office (GAO) in Report GAO-20-81, Additional
Actions Needed to Improve Public Access to Research Results, published
in November 2019. GAO reviewed the progress agencies have made in
implementing their plans to increase public access to Federally funded
research results (publications and data), as called for in a 2013
Office of Science and Technology Policy (OSTP) memorandum. In this
report, GAO recommended that DoD take steps to ensure appropriate
agency-funded research data are readily findable and accessible to the
public.
The OSTP memorandum of February 22, 2013, entitled ``Increasing
Access to the Results of Federal Funded Scientific Research,'' directed
that each Federal agency with over $100 million in annual research and
development expenditures develop a plan to support increased public
access to the results of research funded by the Federal Government.
This includes any results published in peer-reviewed scholarly
publications that are based on research that directly arises from
Federal funds. The required plan's objectives were developed with input
from the National Science and Technology Council and public
consultation in compliance with the America COMPETES Reauthorization
Act of 2010 (Pub. L. 111-358).
The objective of this proposed rule is to implement the
recommendation to DoD in the GAO report GAO-20-81. The legal basis for
this proposed rule is 41 U.S.C. 1303.
Data was obtained on contracts that include DFARS clause 252.235-
7011, Final Scientific or Technical Report. This DFARS clause is
required to be included in solicitations and contracts for research and
development, which includes fundamental research. According to the
Procurement Business Intelligence Service in the last three fiscal
years, DoD awarded contracts including this clause to unique small
entities as follows: 2,086 in fiscal year (FY) 2021, 2,389 in FY 2022,
and 1,799 in FY 2023, which averages out to 2,091 per FY. Therefore,
the number of small entities to which this proposed rule may apply is
approximately 2,091.
This proposed rule does not impose any new reporting,
recordkeeping, or other compliance requirements for small entities.
This proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known alternatives that would accomplish the stated
objectives of the applicable policy.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this proposed rule on
small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this proposed rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2020-
D028), in correspondence.
VII. Paperwork Reduction Act
This proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 235 and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System proposes to
amend 48 CFR parts 235 and 252 as follows:
0
1. The authority citation for 48 CFR parts 235 and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
0
2. Amend section 235.001 by--
0
a. Adding introductory text; and
0
b. Adding, in alphabetical order, the definitions for ``Data'', ``Data
management plan'', ``Fundamental research'', and ``Peer-reviewed''.
The additions read as follows:
235.001 Definitions.
As used in this subpart--
Data means the digitally recorded factual material commonly
accepted in the scientific community as necessary to validate research
findings, including data sets used to support scholarly publications
including publicly releasable digital data, algorithms, or other
information central to the conclusions of published peer-reviewed
scientific research.
Data management plan means a document that describes which data
generated during performance of a research and development contract
will be publicly shared and preserved and how it will be accomplished,
or a justification of why such actions cannot be accomplished.
Fundamental research means basic and applied research in science
and engineering, the results of which ordinarily are published and
shared broadly within the scientific community, as distinguished from
proprietary research and from industrial development, design,
production, and product utilization, the results of which ordinarily
are restricted for proprietary or national security reasons. (Under
Secretary of Defense for Acquisition, Technology, and Logistics
(USD(AT&L)) memorandum on Fundamental Research, dated May 24, 2010)
Peer-reviewed means a process that subjects an author's scholarly
work, research, or ideas to the scrutiny of others who are experts in
the same field and is considered necessary to ensure scientific
quality.
* * * * *
0
3. Add section 235.003 to read as follows:
235.003 Policy.
It is DoD policy that for DoD-funded fundamental research (see
204.403(2)), data management planning should be an integral part of
research planning. See Department of Defense Instruction 3200.12, DoD
Scientific and Technical Information Program.
0
4. Add section 235.010-70 to read as follows:
235.010-70 Peer-reviewed manuscripts.
The contracting officer shall require the contractor to submit
peer-reviewed manuscripts as required by the clause at 252.235-70XX,
Peer-Reviewed Manuscripts.
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0
5. Add section 235.011 to read as follows:
235.011 Data.
(1) The contracting officer shall obtain a data management plan
from the contractor at the start of the research project as required by
the clause at 252.235-70YY, Data Management Plan.
(2) The contracting officer shall provide the contractor's data
management plan to the program manager for approval and notify the
contractor of such approval or disapproval.
0
6. Amend section 235.072 by adding paragraphs (f) and (g) to read as
follows:
235.072 Additional contract clauses.
* * * * *
(f) Use the clause at 252.235-70XX, Peer-Reviewed Manuscripts, in
solicitations and contracts for research and development that include
fundamental research funded in whole or in part by DoD.
(g) Use the clause at 252.235-70YY, Data Management Plan, in
solicitations and contracts for research and development that include
fundamental research funded in whole or in part by DoD.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
7. Add sections 252.235-70XX and 252.235-70YY to read as follows:
252.235-70XX Peer-Reviewed Manuscripts.
As prescribed in 235.072(f), use the following clause:
Peer-Reviewed Manuscripts (DATE)
(a) Definitions. As used in this clause--
Final peer-reviewed manuscript means an author's final
manuscript of a peer-reviewed paper accepted for journal
publication, including all modifications from the peer-review
process and manuscripts jointly authored with DoD personnel during
the period of performance of the fundamental research contract. It
does not include reports required to be delivered under the terms of
the contract.
Peer-reviewed means a process that subjects an author's
scholarly work, research, or ideas to the scrutiny of others who are
experts in the same field and is considered necessary to ensure
scientific quality.
(b) Submission of final peer-reviewed manuscript. When the final
title and date of publication of the author's final peer-reviewed
manuscript are known, the Contractor shall submit an electronic copy
of the manuscript to one of the following Defense Technical
Information Center repositories:
(1) Contractors with a common access card (CAC), personal
identity verification (PIV), or external certification authority
(ECA) shall submit to <a href="https://discover.dtic.mil/submit-documents/">https://discover.dtic.mil/submit-documents/</a>;
or
(2) Contractors without a CAC, PIV, or ECA shall submit to
<a href="https://www.osti.gov/elink/agency-submission">https://www.osti.gov/elink/agency-submission</a>.
(End of clause)
252.235-70YY Data Management Plan.
As prescribed in 235.072(g), insert the following clause:
Data Management Plan (DATE)
(a) Definitions. As used in this clause--
Data means the digitally recorded factual material commonly
accepted in the scientific community as necessary to validate
research findings, including data sets used to support scholarly
publications including publicly releasable digital data, algorithms,
or other information central to the conclusions of published peer-
reviewed scientific research.
Data management plan means a document that describes which data
generated during performance of a research and development contract
will be publicly shared and preserved and how it will be
accomplished, or a justification of why such actions cannot be
accomplished.
(b) Submission of data management plan. Within 30 days of
contract award, the Contractor shall submit to the Contracting
Officer, with a copy to the Contracting Officer's Representative and
the Program Manager, a data management plan for approval by the
Program Manager. Generally, the data management plan should not
exceed 2 pages and should address elements relevant to the research
discipline for the following areas (see DoD Instruction 3200.12):
(1) The types of data, software, and other materials to be
produced.
(2) How the data will be acquired.
(3) Time and location of data acquisition, if scientifically
pertinent.
(4) How the data will be processed.
(5) The file formats and the naming conventions that will be
used.
(6) A description of the quality assurance and quality control
measures during collection, analysis, and processing.
(7) A description of dataset origin when existing data resources
are used.
(8) A description of the standards to be used for data and
metadata format and content.
(9) Appropriate timeframe for preservation.
(10) The plan may consider the balance between the relative
value of data preservation and other factors such as the associated
cost and administrative burden. The plan will provide a
justification for such decisions.
(11) A statement that the data cannot be made available to the
public when there are national security or controlled unclassified
information concerns.
(c) Implementation and maintenance of the data management plan.
The Contractor shall implement and maintain the approved data
management plan throughout the performance of the contract.
(End of clause)
[FR Doc. 2024-21097 Filed 9-25-24; 8:45 am]
BILLING CODE 6001-FR-P
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