DOD issues final rule on technical data rights

The Pentagon today published a final rule that amends defense acquisition regulations to expand the presumption that an item was developed at private expense.

The rule, published in the Federal Register, implements a provision in the Fiscal Year 2016 National Defense Authorization Act. When the proposed rule was released in May, industry advocates and attorneys told Inside Defense the proposal was a good move forward but not a dramatic change.

Jay DeVecchio, co-chair of Morrison and Foerster's government contracts and public procurement practice, at the time called it a "positive step."

"It does reflect a concern that DOD has been too aggressive with respect to pursuing rights in data," he added.

According to today's Federal Register, the proposed rule received no public comments and the final rule has no significant changes from the proposed version.

However, industry associations have asked the Pentagon to pause rulemaking related to technical data while the congressionally mandated Government-Industry Advisory Panel prepares a final report.

According to the Federal Register notice, the Pentagon consulted with the panel's chair before deciding to advance the rule.

"This case implements section 813(a) of the NDAA for FY 2016, the same section that set up the Panel, with no indication that DoD should delay implementation," the notice adds. "Furthermore, the law is very prescriptive and the proposed rule is a nearly verbatim implementation of the statutory language, so there could be no substantive change to this rule without a corresponding statutory change to 10 U.S.C. 2321."