Defense Federal Acquisition Regulation Supplement: Public Access to Results of Federally Funded Research (2020-D028)

DEPARTMENT OF DEFENSE <SUBAGY>Defense Acquisition Regulations System</SUBAGY> <CFR>48 CFR Parts 235 and 252</CFR> <DEPDOC>[Docket DARS-2024-0027]</DEPDOC> <RIN>RIN 0750-AL43</RIN> <SUBJECT>Defense Federal Acquisition Regulation Supplement: Public Access to Results of Federally Funded Research (2020-D028)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Defense Acquisition Regulations System, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> 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. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments identified by DFARS Case 2020-D028, using either of the following methods: ○ <E T="03">Federal eRulemaking Portal: https://www.regulations.gov</E> . 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. ○ <E T="03">Email: osd.dfars@mail.mil</E> . Include DFARS Case 2020-D028 in the subject line of the message. Comments received generally will be posted without change to <E T="03">https://www.regulations.gov</E> , including any personal information provided. To confirm receipt of your comment(s), please check <E T="03">https://www.regulations.gov</E> , approximately two to three days after submission to verify posting. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Jon M. Snyder, telephone 703-945-5341. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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). <HD SOURCE="HD1">II. Discussion and Analysis</HD> 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. <HD SOURCE="HD1">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</HD> 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. <HD SOURCE="HD1">IV. Expected Impact of the Rule</HD> 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. <HD SOURCE="HD1">V. Executive Orders 12866 and 13563</HD> 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 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. <HD SOURCE="HD1">VI. Regulatory Flexibility Act</HD> 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, <E T="03">et seq.,</E> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 20k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━