80258 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules 

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. 

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: 

Æ 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. 

Æ Email: osd.dfars@mail.mil. 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 osd.dfars@mail.mil 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 osd.dfars@mail.mil 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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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules 80259 

available in the Federal eRulemaking 

Portal at http://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 MOSArelated 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 MOSAenabling 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 MOSAenabling 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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80260 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules 

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 MOSArelated 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 

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. 

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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