[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 [www.gpo.gov]
[FR Doc No: 2024-21097]



Federal Register / Vol. 89, No. 187 / Thursday, September 26, 2024 / 
Proposed Rules

[[Page 79003]]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: https://www.regulations.gov. 
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 
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: 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.

[[Page 79005]]

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 https://discover.dtic.mil/submit-documents/; 
or
    (2) Contractors without a CAC, PIV, or ECA shall submit to 
https://www.osti.gov/elink/agency-submission.


(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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>