4546 Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. The 

change to the definition of PRR would 

not affect the overall risk to children 

posed by boiler emissions. This is 

because the overall level of emissions, 

or the emissions mix from boilers, are 

not expected to change significantly 

because of the change in definition of 

PRR and these units remain subject to 

the protective standards established 

under CAA section 112. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution or use of energy. 

The selected NHSMs affected by this 

proposed action would not be generated 

in quantities sufficient to significantly 

(adversely or positively) impact the 

supply, distribution, or use of energy at 

the national level. Even if 100% of the 

available PRR were converted to energy 

(an unlikely best-case scenario), that 

would translate to a potential increase 

of only 0.002% to 0.003% in the 

national energy supply, and these 

effects would be localized at recycling 

paper mills. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This action involves technical 

standards. The EPA proposes to use a 

2% by weight limit on the amount of 

non-fiber content allowed in paper 

recycling residuals (PRR) when burned 

as a non-waste fuel. This is based on a 

voluntary consensus standard set by the 

Institute of Scrap Recycling Industries 

(ISRI) in their Scrap Specifications 

Circular (2021); which identifies a 2% 

prohibitive material content limit for 

paper stock used for re-pulping paper. 

See page 34; http://www.scrap2.org/ 

specs/. In the circular, prohibitive 

material is material which by its 

presence, in excess of the amount 

allowed, will make the pack unusable as 

the grade specified, as well as any 

material that may be damaging to 

equipment. In evaluating the grades of 

paper identified in the circular, the 

maximum allowance of prohibitive 

materials in mixed paper (which 

consists of all paper and paperboard of 

various qualities not limited to the type 

of fiber content) is 2%. The Agency 

proposes that this prohibitive material 

measure can provide an analogous 

measure for allowable amounts of nonfiber materials (including polystyrene 

foam, polyethlene film, other plastics, 

waxes, adhesives, dyes and inks, clays, 

starches and other coating and filler 

material) contained within PRR. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this action, if 

finalized, would not have 

disproportionately high and adverse 

human health or environmental effects 

on minority populations, low-income 

populations and/or indigenous peoples, 

as specified in Executive Order 12898 

(59 FR 7629, February 16, 1994). The 

proposed change in definition of PRR is 

not expected to significantly change the 

overall level of emissions, or the 

emissions mix from boilers, and these 

units remain subject to the protective 

standards established under CAA 

section 112. 

However, if EPA were to grant the 

petitioners’ requests, CTRT could be 

combusted in biomass-only boilers, 

including biomass boilers that are area 

sources under the CAA. As discussed 

earlier, these boilers would have higher 

emissions when burning CTRT rather 

than biomass. Emission standards for 

dioxins, SO2, NOX, etc. for non-major 

sources are addressed under the CAA 

section 129 standards but are not 

addressed by area source boiler 

standards under CAA section 112 which 

require only tune-ups. The risks from 

increased emissions would most likely 

be disproportionately borne by minority 

and low-income communities. In areas 

within three miles of boilers, the 

minority share of the population was 

found to be 33 percent, compared to the 

national average of 25 percent. For these 

same areas, the percent of the 

population below the poverty line (16 

percent) is also higher than the national 

average (13 percent). 

List of Subjects in 40 CFR Part 241 

Environmental protection, Air 

pollution control, Waste treatment and 

disposal, Non-Hazardous Secondary 

Materials. 

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, the EPA is proposing to 

amend 40 CFR part 241 of the Code of 

Federal Regulations as follows: 

PART 241—SOLID WASTES USED AS 

FUELS OR INGREDIENTS IN 

COMBUSTION UNITS 

■ 1. The authority citation for part 241 

continues to read as follows: 

Authority: 42 U.S.C. 6903, 6912, 7429. 

■ 2. Amend § 241.2 by revising the 

definition of ‘‘paper recycling residuals’’ 

to read as follows: 

§ 241.2 Definitions. 

* * * * * 

Paper recycling residuals (PRR) means 

the secondary material generated from 

the recycling of paper, paperboard and 

corrugated containers composed 

primarily of fibers that are too small or 

weak to be used to make new paper and 

paperboard products. PRR that contain 

more than 2% by weight of non-fiber 

materials, including polystyrene foam, 

polyethlene film, other plastics, waxes, 

adhesives, dyes and inks, clays, starches 

and other coating and filler material are 

not PRR under this definition. 

* * * * * 

[FR Doc. 2022–01074 Filed 1–27–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 227, 237, 239, and 252 

[Docket DARS–2019–0067] 

RIN 0750–AK87 

Defense Federal Acquisition 

Regulation Supplement: 

Noncommercial Computer Software 

(DFARS Case 2018–D018) 

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 section of the National 

Defense Authorization Act for Fiscal 

Year 2018 that requires DoD to consider 

all noncommercial computer software 

and related materials necessary to meet 

the needs of the agency. In addition to 

the request for written comments on this 

proposed rule, DoD will hold a public 

meeting to hear the views of interested 

parties. 

DATES: 

Submission of Comments: Comments 

on the proposed rule should be 

submitted in writing to the address 

shown below on or before March 29, 

2022, to be considered in the formation 

of a final rule. 

Public Meeting: A virtual public 

meeting will be held on March 3, 2022, 

from 11:00 a.m. to 2:30 p.m. Eastern 

time. DoD will also reserve 2:30 p.m. to 

5:00 p.m. Eastern time on the same day, 


jspears on DSK121TN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 4547 

if DoD determines additional discussion 

is necessary. 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 February 

24, 2022. Information on how to register 

for the public meeting may be found 

under the heading 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 

written comments identified by DFARS 

Case 2018–D018, using any of the 

following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

‘‘DFARS Case 2018–D018.’’ Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2018–D018’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D018 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. 

David E. Johnson, telephone 571–372– 

6115. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to amend the 

DFARS to implement section 871 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2018 (Pub. 

L. 115–91). Section 871 established new 

direction at 10 U.S.C. 2322a, 

Requirement for consideration of certain 

matters during acquisition of 

noncommercial computer software. The 

statute requires that DoD, as part of any 

negotiation for such software, consider 

all noncommercial computer software 

and related materials necessary to meet 

the needs of the agency. This rule 

provides direction to DoD both to 

improve acquisition planning and to 

identify and negotiate for software 

deliverables and license rights at a fair 

and reasonable price before contract 

award. DoD published an advance 

notice of proposed rulemaking (ANPR) 

on January 14, 2020, at 85 FR 2101 and 

hosted a public meeting on February 18, 

2020, to obtain the views of interested 

parties. DoD accepted public comments 

through March 16, 2020. Two 

respondents submitted public 

comments in response to the ANPR. 

II. Public Meeting 

DoD is interested in continuing a 

dialogue with experts and interested 

parties in Government and the private 

sector regarding amending the DFARS 

to implement section 871 of the NDAA 

for FY 2018, which requires DoD to 

consider all noncommercial computer 

software and related materials necessary 

to meet the needs of the agency. 

Registration: Individuals wishing to 

participate in the virtual meeting must 

register by February 24, 2022, to 

facilitate entry to the meeting. 

Registration for the virtual meeting will 

be valid also for the additional 

discussion time, if DoD determines 

additional time is needed (see the DATES

section of this preamble). 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 2018– 

D018’’ 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 2018–D018’’ 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 

DoD reviewed the public comments 

submitted in response to the ANPR in 

the development of the proposed rule. 

One respondent provided a comment 

that indicated concurrence with the 

rule. A discussion of the remaining 

comments and the changes made to the 

rule as a result of those comments are 

provided as follows: 

A. Summary of Significant Changes 

From the ANPR 

DFARS 227.7202–1 and 227.7203–2 

were clarified in response to public 

comments. New text was added to 

DFARS 227.7203–2 to provide 

additional guidance on assessing lifecycle needs. Several changes were made 

to terms in the proposed rule as follows: 

• The term ‘‘related data’’ was 

replaced with related recorded 

information; 

• The description of required 

software libraries was revised to further 

clarify its scope; and 

• The Government’s minimum needs 

in DFARS 227.7103–2(b)(1) and 

227.7203–2(b)(1) were clarified. 

The proposed definition of data at 

DFARS 227.001 was deleted. DFARS 

227.7203–2(b)(1) was revised to align 

with the text in DFARS 227.7103– 

2(b)(1). The definition of restricted 

rights was revised to permit the 

Government to make and use a 

reasonable number of copies of 

computer software for the purposes 

described in the contract clauses at 

DFARS 252.227–7014, Rights in 

Technical Data—Noncommercial Items, 

and 252.227–7018, Rights in 

Noncommercial Technical Data and 

Computer Software—Small Business 

Innovation Research (SBIR) Program. 

B. Analysis of Public Comments 

1. Proposed Rule Applies Program 

Management Elements to Contracting 

Personnel 

Comment: The respondent expresses 

concern that the rule addresses 

functions that are normally performed 

by program managers, engineers, 

configuration managers, and other 

program personnel and places those 

responsibilities on contracting 

personnel. The respondent recommends 

that these requirements would be best 

addressed within a program’s 

intellectual property (IP) strategy. 


jspears on DSK121TN23PROD with PROPOSALS1
4548 Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 

Response: DoD acknowledges that the 

requirements for program personnel are 

currently addressed in DoD instructions 

(DoDIs), such as DoDI 5000.87, 

Operation of the Software Acquisition 

Pathway, and DoDI 5010.44, Intellectual 

Property (IP) Acquisition and Licensing. 

DFARS 227.7203–2(a) currently 

provides for contracting officers to work 

closely with program personnel when 

developing requirements to meet the 

Government’s needs. Currently, DFARS 

227.7203–2(b) delineates the 

responsibilities of data managers in 

assessing life-cycle needs, and 

227.7203–2(c) requires contracting 

officers to ensure that solicitations and 

contracts include certain requirements 

for software deliverables. The rule 

proposes to revise this language because 

the statute impacts the direction related 

to assessments of life-cycle needs, 

solicitations, and contracts. 

2. Application to Commercial Computer 

Software 

Comment: The respondent asserts that 

the plain language in paragraphs (a) and 

(b) of 10 U.S.C. 2322a make it clear that 

Congress intended for the provision to 

only apply to noncommercial computer 

software. 

Response: Although the statute relates 

to the acquisition of noncommercial 

computer software, the statute also 

discourages reliance on ‘‘external or 

additional computer software or 

technical data’’ with no limitations with 

respect to commerciality. DoD revised 

DFARS 227.7203–2(c)(6) to clarify that 

the proposed rule is limited to 

noncommercial computer software, 

except in cases where the software relies 

on additional internal or external 

commercial computer software or 

technical data. The proposed rule 

permits reliance on additional internal 

or external computer software when 

such software is commercially available 

with the necessary license rights. 

DFARS 227.7202–1 and 227.7203–2 

have been revised to address the 

relationship between noncommercial 

software and commercial software while 

maintaining the policies set forth in 

DFARS 227.7202–1(c). 

3. Proposed Changes to DFARS 

227.7203–2 Encourage Acquisition of 

All Forms of Noncommercial Computer 

Software in All Instances 

Comment: The respondent expresses 

concern that the proposed rule could be 

interpreted as requiring the contracting 

officer to acquire all forms of 

noncommercial computer software in all 

instances, rather than tailoring 

acquisitions to meet DoD’s actual needs. 

The respondent recommends an 

emphasis on the life-cycle needs for a 

program or system, including software 

maintenance. 

Response: DFARS 227.7203–1(a) 

provides that DoD may acquire only the 

computer software and computer 

software documentation, and the rights 

in such software or documentation, 

necessary to satisfy agency needs. This 

direction remains unchanged. The 

proposed rule does require the 

assessment of life-cycle needs to address 

acquisition of software at appropriate 

times in the life cycle of a product, 

program, or system. 

4. DFARS 227.7203–2 Should Consider 

Whether the Software Was Developed at 

Private Expense 

Comment: The respondent 

recommends that the rule consider 

whether the software was developed at 

private expense to incentivize 

investment of private funds into 

noncommercial software development 

to meet DoD needs. The respondent also 

recommends DoD consider alternatives 

to the delivery of source code and 

related software design details. 

Response: DoD concurs with the 

comment and revised DFARS 227.7203– 

2(b)(2)(ii) to include consideration of 

alternatives to the delivery of source 

code and related software design details 

for privately developed noncommercial 

computer software. 

5. References to Necessary or Associated 

License Rights May Be Subject to 

Misinterpretation 

Comment: The respondent states that 

the proposed DFARS 227.7203–2 should 

not refer to ‘‘necessary’’ or ‘‘associated’’ 

license rights when discussing the need 

to acquire specific types of software. 

There is a risk that this could be 

misinterpreted as requiring a separate 

licensing scheme that is not subject to 

the existing noncommercial software 

licensing policies in DFARS 227.7203– 

1. 

Response: Existing policies in DFARS 

227.7203–1 and 227.7203–2 address 

these concerns. Contracting officers 

must ensure consistency with DFARS 

227.7203–1(c), which prohibits a 

contractor from being required to sell or 

relinquish to DoD greater rights than 

required under DFARS 227.7203–5(a)(3) 

through (6). 

6. New Terms Introduced in the ANPR 

Comment: The respondent states a 

concern that the proposed new 

definition for data is not needed to 

implement 10 U.S.C. 2322a and would 

ultimately cause confusion within the 

acquisition workforce. The respondent 

also expresses concerns about the new 

term ‘‘related data’’ and recommends 

‘‘related computer software 

documentation’’ instead. 

Response: DoD concurs and has 

removed the definition of data from the 

proposed rule. To avoid confusion about 

the scope of the term ‘‘related data’’ and 

better align with the broader scope of 

the term ‘‘related materials’’ in 10 U.S.C. 

2322a, ‘‘related data’’ has been changed 

to ‘‘related recorded information,’’ 

which is more consistent with 10 U.S.C. 

2302(4) and existing DFARS 

terminology. 

7. Use of Terms Consistent With Other 

Acquisition Documents 

Comment: The respondent asserts that 

DFARS 227.7203–2 should use 

terminology used in other acquisition 

documents, such as those contained in 

a Data Item Description (DID). The 

respondent expresses concerns with the 

terms ‘‘required software libraries’’ and 

‘‘software revision history.’’ 

Response: The term ‘‘required 

software libraries’’ is intended to 

implement the term ‘‘required libraries’’ 

in 10 U.S.C. 2322a. DFARS 227.7203– 

2(b)(2)(i) and 227.7203–2(c)(6)(ii) have 

been revised to include examples of 

required software libraries. The term 

‘‘software revision history’’ has been 

changed to ‘‘software version history’’ 

consistent with the term ‘‘software 

version’’ used in the ‘‘Software Version 

Description’’ DID, DI–IPSC–81442A. 

8. Policy Changes to DFARS 239.101 

Should Require a Written Determination 

by the Head of the Contracting Activity 

Comment: The respondent 

recommends that a parenthetical should 

be added to ensure the policy change of 

DFARS 239.101 is only used where 

there is a written determination by the 

‘‘head of the contracting authority.’’ 

Response: DFARS 239.101(1) 

currently requires a written 

determination by the head of the 

contracting activity. 

9. Future Rulemaking Should Address 

Recommendations Presented by the 

2018 Government-Industry Advisory 

Panel on Technical Data Rights 

Comment: Although the respondent 

acknowledges that this recommendation 

is not within the scope of implementing 

10 U.S.C. 2322a, the respondent 

recommends that DoD’s future 

rulemaking address the specific 

Government-industry recommendations 

included in the 2018 Report submitted 

by the Government-Industry Advisory 

Panel on Technical Data Rights (the 

‘‘Section 813 Panel Final Report’’). 

Response: To the extent that such 

recommendations align with other 


jspears on DSK121TN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 4549 

proposed revisions made to implement 

10 U.S.C. 2322a, DoD considered 

recommendations in the Section 813 

Panel Final Report. DoD is proposing 

various DFARS revisions that adopt 

recommendations made in the Section 

813 Panel Final Report. 

C. Other Changes 

DFARS 227.7100 and 227.7200 were 

revised to remove a reference to 10 

U.S.C. 2325 that was revoked in 1994 

(Pub. L. 103–355) and to correct the 

citation to Executive Order 12591. 

DFARS 227.7100 and 227.7200 were 

also revised to emphasize the 

importance of assessing life-cycle needs. 

DFARS 227.7203–2(b)(2)(i)(B) through 

(D) were revised to be consistent with 

acquisition policies in section 3.2 of 

DoDI 5000.87, which is closely aligned 

with the subject matter of this case. 

DFARS 227.7203–2(c)(6) was also 

revised to clarify the contracting 

officer’s responsibilities with respect to 

this section. DFARS 237.102 was 

revised to add references to 227.7202 

and 227.7203, emphasizing the need to 

consider this guidance in service 

contracts. 

The definition of technical data in the 

contract clauses at DFARS 252.227– 

7013, 252.227–7015, and 252.227–7018 

has been revised to clarify the types of 

information excluded from the 

definition in 10 U.S.C. 2302. 

IV. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold and for Commercial Items, 

Including Commercially Available Offthe-Shelf Items 

This proposed rule does not create 

any new solicitation provisions or 

contract clauses. It does not change the 

applicability of any existing provisions 

or clauses included in solicitations and 

contracts valued at or below the 

simplified acquisition threshold or for 

commercial items, including 

commercially available off-the-shelf 

items. 

V. Executive Orders 12866 and 13563 

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 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, dated September 30, 1993. 

VI. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD 

will send a copy of the interim or final 

rule and the ‘‘Submission of Federal 

Rules Under the Congressional Review 

Act’’ form to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. A major rule under the 

Congressional Review Act cannot take 

effect until 60 days after it is published 

in the Federal Register. This rule is not 

anticipated to be a major rule under 5 

U.S.C. 804. 

VII. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule 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 the statutory 

requirements are directed at the internal 

processes of the Government rather than 

contractors. However, an initial 

regulatory flexibility analysis has been 

performed and is summarized as 

follows: 

DoD is proposing to implement 

section 871 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2018 (Pub. L. 115–91). Section 

871 established new direction at 10 

U.S.C. 2322a, Requirement for 

consideration of certain matters during 

acquisition of noncommercial computer 

software. The statute requires that DoD, 

as part of any negotiation for such 

software, consider all noncommercial 

computer software and related materials 

necessary to meet the needs of the 

agency. 

The objective of the rule is to ensure 

that the Government identifies and 

acquires all software necessary to meet 

its needs at appropriate times in the life 

cycle of a product, program, or system. 

The legal basis for the rule is section 

871 of the NDAA for FY 2018. 

The rule may impact small entities 

that are awarded DoD contracts for 

noncommercial computer software, to 

include contracts under the Small 

Business Innovation Research and 

Technology Transfer Programs. Based 

on data from the Federal Procurement 

Data System (FPDS) and the Electronic 

Data Access (EDA) for FY 2019 through 

FY 2020, DoD estimates that an average 

of 6,263 unique small entities are 

awarded an average of 30,146 contract 

actions for noncommercial software 

annually. 

This proposed rule does not impose 

any new reporting, recordkeeping or 

other compliance requirements. 

This proposed rule does not 

duplicate, overlap, or conflict with any 

other Federal rules. 

There are no known alternatives 

which would accomplish the stated 

objectives of the applicable statute. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this 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 2018–D018), in 

correspondence. 

VIII. Paperwork Reduction Act 

Although the Paperwork Reduction 

Act (44 U.S.C. chapter 35) applies to 

this rule, these changes to the DFARS 

do not impose additional information 

collection requirements to the 

paperwork burden previously approved 

under Office of Management and Budget 

(OMB) Control Number 0704–0369, 

entitled ‘‘DFARS Subpart 227.71, Rights 

in Technical Data; and Subpart 227.72, 

Rights in Computer Software and 

Computer Software Documentation, and 

related provisions and clauses.’’ 

List of Subjects in 48 CFR Parts 227, 

237, 239, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR parts 227, 237, 239, 

and 252 are proposed to be amended as 

follows: 

■ 1. The authority citation for 48 CFR 

parts 227, 237, 239, and 252 continues 

to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 227—PATENTS, DATA, AND 

COPYRIGHTS 

■ 2. Revise the heading for subpart 

227.71 to read as follows: 

Subpart 227.71—Technical Data and 

Associated Rights 

■ 3. Amend section 227.7100 by 

revising paragraph (a) to read as follows: 

227.7100 Scope of subpart. 

* * * * * 

(a) Prescribes policies and procedures 

for the acquisition of technical data and 

the rights to use, modify, reproduce, 


jspears on DSK121TN23PROD with PROPOSALS1
4550 Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 

release, perform, display, or disclose 

technical data. It implements the 

following laws and Executive order: 

(1) 10 U.S.C. 2302(4). 

(2) 10 U.S.C. 2305(d)(4). 

(3) 10 U.S.C. 2320. 

(4) 10 U.S.C. 2321. 

(5) 10 U.S.C. 7317. 

(6) 17 U.S.C. 1301, et seq. 

(7) Public Law 103–355. 

(8) Executive Order 12591 (subsection 

1(b)(7)). 

* * * * * 

■ 4. Amend section 227.7103–2 by 

revising paragraph (b)(1) to read as 

follows: 

227.7103–2 Acquisition of technical data. 

* * * * * 

(b)(1) Data managers or other 

requirements personnel are responsible 

for identifying the Government’s lifecycle needs for technical data. 

Technical data needs must be 

established giving consideration to the 

contractor’s economic interests in 

technical data pertaining to items, 

components, or processes that have 

been developed at private expense; the 

Government’s costs to acquire, 

maintain, store, retrieve, and protect the 

technical data; reprocurement needs; 

repair, maintenance and overhaul 

philosophies; spare and repair part 

considerations; and whether 

procurement of the items, components, 

or processes can be accomplished on a 

form, fit, or function basis. When it is 

anticipated that the Government will 

obtain unlimited or government purpose 

rights in technical data that will be 

required for competitive spare or repair 

parts procurements, such data should be 

identified as deliverable technical data 

items. Reprocurement needs may not be 

a sufficient reason to acquire detailed 

manufacturing or process data when 

items or components can be acquired 

using performance specifications, form, 

fit, and function data, or when there are 

a sufficient number of alternate sources 

that can reasonably be expected to 

provide such items on a performance 

specification or form, fit, or function 

basis. 

* * * * * 

■ 5. Revise the heading for subpart 

227.72 to read as follows: 

Subpart 227.72—Computer Software, 

Computer Software Documentation, 

and Associated Rights 

■ 6. Revise section 227.7200 to read as 

follows: 

227.7200 Scope of subpart. 

(a) This subpart— 

(1) Prescribes policies and procedures 

for the acquisition of computer software 

and computer software documentation, 

and the rights to use, modify, reproduce, 

release, perform, display, or disclose 

such software or documentation. It 

implements the following laws and 

Executive order: 

(i) 10 U.S.C. 2302(4). 

(ii) 10 U.S.C. 2305(d)(4). 

(iii) 10 U.S.C. 2320. 

(iv) 10 U.S.C. 2321. 

(v) 10 U.S.C. 2322a. 

(vi) Executive Order 12591 

(subsection 1(b)(7)). 

(2) Does not apply to— 

(i) Computer software or computer 

software documentation acquired under 

GSA schedule contracts; or 

(ii) Releases of computer software or 

computer software documentation to 

litigation support contractors (see 

subpart 204.74). 

(b) See PGI 227.7200(b) for guidance 

and information in DoD issuances. 

■ 7. Amend section 227.7202–1 by 

adding paragraph (d) to read as follows: 

227.7202–1 Policy. 

* * * * * 

(d) When establishing contract 

requirements and negotiation objectives 

to meet agency needs, the Government 

shall consider the factors identified in 

227.7203–2(b) and (c) for commercial 

computer software and computer 

software documentation, as applicable 

in paragraph (c) of this section. 

■ 8. Amend section 227.7203–2 by— 

■ a. Revising the section heading and 

paragraphs (b) and (c)(4) and (5); and 

■ b. Adding paragraph (c)(6). 

The revisions and addition read as 

follows: 

227.7203–2 Acquisition of noncommercial 

computer software and computer software 

documentation and associated rights. 

* * * * * 

(b)(1) Data managers or other 

requirements personnel are responsible 

for identifying the Government’s lifecycle needs for computer software and 

computer software documentation. See 

PGI 227.7203–2(b) for further guidance 

on assessing life-cycle needs. In 

addition to desired software 

performance, compatibility, or other 

technical considerations, identification 

of life-cycle needs should consider such 

factors as— 

(i) The contractor’s economic interests 

in software that has been developed at 

private expense; 

(ii) The Government’s costs to 

acquire, maintain, store, retrieve, and 

protect the computer software and 

computer software documentation; 

(iii) Multiple site or shared use 

requirements; 

(iv) Whether the Government’s 

software maintenance philosophy will 

require the right to modify or have third 

parties modify the software; and 

(v) Any special computer software 

documentation requirements. 

(2)(i) Procurement planning. To the 

maximum extent practicable, when 

assessing the life-cycle needs, data 

managers or other requirements 

personnel will address in the 

procurement planning and requirements 

documents (e.g., acquisition plans, 

purchase requests) the acquisition at 

appropriate times in the life cycle of all 

computer software, related recorded 

information, and associated license 

rights necessary to— 

(A) Reproduce, build, or recompile 

the software from its source code and 

required software libraries (e.g., 

software libraries called, invoked, or 

linked by the computer software source 

code that are necessary for the operation 

of the software); 

(B) Conduct required computer 

software testing and evaluation; 

(C) Integrate and deploy computer 

programs on relevant hardware 

including developmental, operational, 

diagnostic, training, or simulation 

environments; and 

(D) Sustain and support the software 

over its life cycle. 

(ii) Delivery of alternatives to source 

code and related software design 

details. The assessment of life-cycle 

needs should consider alternatives to 

the delivery of source code and related 

software design details for privately 

developed computer software as 

necessary to meet the Government’s 

needs, such as— 

(A) Technical data and computer 

software sufficient to implement a 

modular open system approach or a 

similar approach (see PGI 227.7203– 

2(b)(2)(ii)(A) for guidance on 

alternatives to source code and related 

software design details); 

(B) Access to technical data or 

computer software; see PGI 227.7203– 

2(b)(2)(ii)(B) and (C) for guidance on use 

of access agreements to contractor 

source code and related software design 

details; 

(C) Software support and maintenance 

provided directly from the contractor; or 

(D) Other contracting or licensing 

mechanisms including priced options, 

specially negotiated licenses, direct 

licensing between contractors for 

qualifying second sources, data escrow 

agreements, deferred delivery solutions, 

and subscription agreements. See PGI 

227.7203–2(b)(2)(ii)(D) for guidance on 

use of escrow agreements. 

(3) When reviewing offers received in 

response to a solicitation or other 

request for computer software or 

computer software documentation, data 


jspears on DSK121TN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules 4551 

managers must balance the original 

assessment of the Government’s needs 

with prices offered. 

(c) * * * 

(4) Include delivery schedules and 

acceptance criteria for each deliverable 

item; 

(5) Specifically identify the place of 

delivery for each deliverable item; and 

(6) Specify in the negotiated terms 

that any required noncommercial 

computer software, related recorded 

information, and associated license 

rights identified in the assessment of 

life-cycle needs in paragraph (b) of this 

section shall, to the extent appropriate— 

(i) Include computer software 

delivered in a digital format compatible 

with applicable computer programs on 

relevant system hardware; 

(ii) Not rely on additional internal or 

external noncommercial or commercial 

technical data and software, unless such 

technical data or software is— 

(A) Included in the items to be 

delivered with all necessary license 

rights; or 

(B) Commercially available with all 

necessary license rights; and 

(iii) Include sufficient information, 

with all necessary license rights, to 

support maintenance and understanding 

of interfaces and software version 

history when the negotiated terms do 

not allow for the inclusion of the 

external or additional noncommercial or 

commercial technical data and software. 

PART 237—SERVICE CONTRACTS 

■ 9. Add section 237.102–XX to read as 

follows: 

237.102–XX Acquisition of computer 

software and computer software 

documentation under services contracts. 

(a) See 227.7202 for policy on the 

acquisition of commercial computer 

software and commercial computer 

software documentation for services 

contracts that require the development 

or modification of commercial computer 

software. 

(b) See 227.7203 for policy on the 

acquisition of noncommercial computer 

software and noncommercial computer 

software documentation for services 

contracts that require the development 

or modification of noncommercial 

computer software. 

PART 239—ACQUISITION OF 

INFORMATION TECHNOLOGY 

■ 10. Amend section 239.101 by adding 

paragraph (4) to read as follows: 

239.101 Policy. 

* * * * * 

(4) See 227.7203 for policy on the 

acquisition of noncommercial computer 

software and noncommercial computer 

software documentation. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 11. Amend section 252.227–7013 by 

revising the section heading, the date of 

the clause, and paragraph (a)(15) to read 

as follows: 

252.227–7013 Rights in Technical Data— 

Noncommercial Items. 

* * * * * 

Rights in Technical Data— 

Noncommercial Items (DATE) 

(a) * * * 

(15) Technical data means recorded 

information, regardless of the form or 

method of the recording, of a scientific 

or technical nature (including computer 

software documentation). The term does 

not include computer software or 

financial, administrative, cost or 

pricing, or management information, or 

information incidental to contract 

administration. 

* * * * * 

■ 12. Amend section 252.227–7014 by 

revising the section heading, the date of 

the clause, and paragraph (a)(15)(iii) to 

read as follows: 

252.227–7014 Rights in Noncommercial 

Computer Software and Noncommercial 

Computer Software Documentation. 

* * * * * 

Rights in Noncommercial Computer 

Software and Noncommercial 

Computer Software Documentation 

(DATE) 

(a) * * * 

(15) * * * 

(iii) Make and use a reasonable 

number of copies of the computer 

software for safekeeping (archive), 

backup, development, testing, 

evaluation, integration, or modification 

purposes, or diagnosing and correcting 

deficiencies or vulnerabilities in a 

computer program; 

* * * * * 

■ 13. Amend section 252.227–7015 by 

revising the section heading, the date of 

the clause, and paragraph (a)(5) to read 

as follows: 

252.227–7015 Technical Data— 

Commercial Items. 

* * * * * 

Technical Data—Commercial Items 

(DATE) 

(a) * * * 

(5) Technical data means recorded 

information, regardless of the form or 

method of recording, of a scientific or 

technical nature (including computer 

software documentation). The term does 

not include computer software or 

financial, administrative, cost or 

pricing, or management information, or 

information incidental to contract 

administration. 

* * * * * 

■ 14. Amend section 252.227–7018 by 

revising the section heading, the date of 

the clause, and paragraphs (a)(18)(iii) 

and (a)(20) to read as follows: 

252.227–7018 Rights in Noncommercial 

Technical Data and Computer Software— 

Small Business Innovation Research (SBIR) 

Program. 

* * * * * 

Rights in Noncommercial Technical 

Data and Computer Software—Small 

Business Innovation Research (SBIR) 

Program (DATE) 

(a) * * * 

(18) * * * 

(iii) Make and use a reasonable 

number of copies of the computer 

software for safekeeping (archive), 

backup, development, testing, 

evaluation, integration, or modification 

purposes, or diagnosing and correcting 

deficiencies or vulnerabilities in a 

computer program; 

* * * * * 

(20) Technical data means recorded 

information, regardless of the form or 

method of the recording, of a scientific 

or technical nature (including computer 

software documentation). The term does 

not include computer software or 

financial, administrative, cost or 

pricing, or management information, or 

information incidental to contract 

administration. 

* * * * * 

[FR Doc. 2022–01386 Filed 1–27–22; 8:45 am] 

BILLING CODE 5001–06–P 


jspears on DSK121TN23PROD with PROPOSALS1