[Federal Register Volume 84, Number 202 (Friday, October 18, 2019)]
[Proposed Rules]
[Pages 55894-55897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22435]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1539 and 1552

[EPA-HQ-OARM-2018-0743; FRL-10000-34-OMS]


Environmental Protection Agency Acquisition Regulation (EPAAR); 
Open Source Software

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is writing a new 
EPAAR clause to address open source software requirements at EPA, so 
that the EPA can share open source software developed under its 
procurements.

DATES: Comments must be received on or before December 17, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2018-0743, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Thomas Valentino, Policy, Training and 
Oversight Division, Acquisition Policy and Training Branch (3802R), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone number: (202) 564-4522; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    1. Submitting Classified Business Information. Do not submit CBI to 
EPA website https://www.regulations.gov or email. Clearly mark the part 
or all of the information that you claim to be CBI. For CBI information 
in a disk or CD-ROM that you mail to EPA, mark the outside of the disk 
or CD-ROM as CBI, and then identify electronically within the disk or 
CD-ROM the specific information that is claimed as CBI. In addition to 
one complete version of the comment that includes information claimed 
as CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    [ssquf] Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    [ssquf] Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) Part or section number.
    [ssquf] Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
    [ssquf] Describe any assumptions and provide any technical 
information and/or data that you used.
    [ssquf] If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    [ssquf] Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    [ssquf] Explain your views as clearly as possible, avoiding the use 
of profanity or personal threats.
    [ssquf] Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    The EPA is writing a new EPAAR clause to address open source 
software requirements at EPA, so that the EPA can share custom-
developed code as open source code developed under its procurements, in 
accordance with Office of Management and Budget's (OMB) Memorandum M-
16-21, Federal Source Code Policy: Achieving Efficiency, Transparency, 
and Innovation through Reusable and Open Source Software. In meeting 
the requirements of Memorandum M-16-21 the EPA will be providing an 
enterprise code inventory indicating if the new code (source code or 
code) was custom-developed for, or by, the agency; or if the code is 
available for Federal reuse; or if the code is available publicly as 
open source code; or if the code cannot be made available due to 
specific exceptions.

III. Proposed Rule

    The proposed rule amends EPA Acquisition Regulation (EPAAR) Part 
1539, Acquisition of Information Technology, by adding Subpart 1539.2, 
Open Source Software; and Sec.  1539.2071, Contract clause. EPAAR 
Subpart 1552.2, Texts of Provisions and Clauses, is amended by adding 
EPAAR Sec.  1552.239-71, Open Source Software.
    1. EPAAR Subpart 1539.2 adds the new subpart.
    2. EPAAR Sec.  1539.2071 adds the prescription for use of Sec.  
1552.239-71 in all procurements where open-source software development/
custom development of software will be required.
    3. EPAAR Sec.  1552.239-71, Open Source Software, provides the 
terms and conditions for open source software code development and use.

IV. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the E.O.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

[[Page 55895]]

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute; unless the agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. Small entities include small businesses, small 
organizations, and small governmental jurisdictions. For purposes of 
assessing the impact of this proposed rule on small entities, ``small 
entity'' is defined as: (1) A small business that meets the definition 
of a small business found in the Small Business Act and codified at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; or (3) a small organization that is any 
not-for-profit enterprise which is independently owned and operated and 
is not dominant in its field. After considering the economic impacts of 
this rule on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, because the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities'' 5 U.S.C. 503 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. This 
action establishes a new EPAAR clause that will not have a significant 
economic impact on a substantial number of small entities. We continue 
to be interested in the potential impacts of the rule on small entities 
and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Local, and Tribal 
governments and the private sector. This rule contains no Federal 
mandates (under the regulatory provisions of the Title II of the UMRA) 
for State, Local, and Tribal governments or the private sector. The 
rule imposes no enforceable duty on any State, Local or Tribal 
governments or the private sector. Thus, the rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and Local officials in the 
development of regulatory policies that have federalism implications. 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' This rule 
does not have federalism implications. It will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government as specified in 
Executive Order 13132.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications as specified in Executive Order 13175.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health and Safety Risks'' (62 FR 19885, April 23, 1997), 
applies to any rule that: (1) Is determined to be economically 
significant as defined under E.O. 12886, and (2) concerns an 
environmental health or safety risk that may have a proportionate 
effect on children. This rule is not subject to E.O. 13045 because it 
is not an economically significant rule as defined by Executive Order 
12866, and because it does not involve decisions on environment health 
or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution or Use'' (66 FR 28335 (May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995 (NTTAA)

    Section 12(d) (15 U.S.C. 272 note) of the National Technology 
Transfer and Advancement Act of 1995, Public Law 104-113, directs EPA 
to use voluntary consensus standards in its regulatory activities 
unless to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards. This action does not 
involve technical standards. Therefore, EPA is not considering the use 
of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this proposed 
rule will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment in the general public.

[[Page 55896]]

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a major rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 804(2) defines a ``major rule'' 
as any rule that the Administrator of the Office of Information and 
Regulatory Affairs of the Office of Management and Budget finds has 
resulted in or is likely to result in (1) an annual effect on the 
economy of $100,000,000 or more; (2) a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets. 
EPA is not required to submit a rule report regarding this action under 
section 801 as this is not a major rule by definition.

List of Subjects in 48 CFR Parts 1539 and 1552

    Environmental protection, Government procurement, Reporting and 
recordkeeping requirements.

    Dated: September 17, 2019.
Kimberly Y. Patrick,
Director, Office of Acquisition Solutions.

    For the reasons set forth in the preamble, EPA proposes to amend 
EPAAR parts 1539 and 1552 as follows:

PART 1539--ACQUISITION OF INFORMATION TECHNOLOGY

0
1. Authority: The authority citations for part 1539 continue to read as 
follows:

    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

0
2. Part 1539, as proposed to be added at 84 FR 48856 (September 17, 
2019), is proposed to be further amended by adding subpart 1539.2, 
consisting of 1539.2071 to read follows:

Subpart 1539.2--Open Source Software


1539.2071   Contract clause.

    (a) Contracting Officers shall use clause 1552.239-71, Open Source 
Software, for all procurements where open-source software development/
custom development of software will be required; including, but not 
limited to, multi-agency contracts, Federal Supply Schedule orders, 
Governmentwide Acquisition Contracts, interagency agreements, 
cooperative agreements and student services contracts.
    (b) In addition to clause 1552.239-71, Contracting Officers must 
also select the appropriate version* of Federal Acquisition Regulation 
(FAR) clause 52.227-14, Rights in Data--General, to include in the 
subject procurement in accordance with FAR 27.409. (*Important note: 
Alternate IV of clause 52.227-14 is NOT suitable for open-source 
software procurement use because it gives the contractor blanket 
permission to assert copyright.)

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Authority: The authority citations for part 1552 continue to read as 
follows:

    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

0
4. Add Section 1552.239-71 to read as follows:


1552.239-71  Open source software.

    As prescribed in 1539.2071 insert the following clause:

Open Source Software (Date)

    (a) Definitions.
    ``Custom-Developed Code'' means code that is first produced in 
the performance of a federal contract or is otherwise fully funded 
by the federal government. It includes code, or segregable portions 
of code, for which the government could obtain unlimited rights 
under Federal Acquisition Regulation (FAR) Part 27 and relevant 
agency FAR Supplements. Custom-developed code also includes code 
developed by agency employees as part of their official duties. 
Custom-developed code may include, but is not limited to, code 
written for software projects, modules, plugins, scripts, middleware 
and Application Programming Interfaces (API); it does not, however, 
include code that is truly exploratory or disposable in nature, such 
as that written by a developer experimenting with a new language or 
library.
    ``Open Source Software (OSS)'' means software that can be 
accessed, used, modified and shared by anyone. OSS is often 
distributed under licenses that comply with the definition of ``Open 
Source'' provided by the Open Source Initiative at https://opensource.org/osd or equivalent, and/or that meet the definition of 
``Free Software'' provided by the Free Software Foundation at: 
https://www.gnu.org/philosophy/free-sw.html or equivalent. 
``Software'' means:
    (1) Computer programs that comprise a series of instructions, 
rules, routines or statements, regardless of the media in which 
recorded, that allow or cause a computer to perform a specific 
operation or series of operations; and
    (2) Recorded information comprising source code listings, design 
details, algorithms, processes, flow charts, formulas and related 
material that would enable the computer program to be produced, 
created or compiled. Software does not include computer databases or 
computer software documentation.
    ``Source Code'' means computer commands written in a computer 
programming language that is meant to be read by people. Generally, 
source code is a higher-level representation of computer commands 
written by people, but must be assembled, interpreted or compiled 
before a computer can execute the code as a program.
    (b)(1) Policy. It is the EPA policy that new custom-developed 
code be made broadly available for reuse across the federal 
government, subject to the exceptions provided in (b)(3) of this 
section. The policy does not apply retroactively so it does not 
require existing custom-developed code also be made available for 
Government-wide reuse or as OSS. However, making such code available 
for government-wide reuse or as OSS, to the extent practicable, is 
strongly encouraged. The EPA also supports the Office of Management 
and Budget's (OMB) Federal Source Code Policy provided in OMB 
Memorandum M-16-21, Federal Source Code Policy: Achieving 
Efficiency, Transparency, and Innovation through Reusable and Open 
Source Software, by:
    (i) Providing an enterprise code inventory (e.g., code.json 
file) that lists new and applicable custom-developed code for, or 
by, the EPA;
    (ii) Indicating whether the code is available for Federal reuse; 
or
    (iii) Indicating if the code is available publicly as OSS.
    (2) Exemption: Source code developed for National Security 
Systems (NSS), as defined in 40 U.S.C. 11103, is exempt from the 
requirements herein.
    (3) Exceptions: Exceptions may be applied in specific instances 
to exempt EPA from sharing custom-developed code with other 
government agencies. Any exceptions used must be approved and 
documented by the Chief Information Officer (CIO) or his or her 
designee for the purposes of ensuring effective oversight and 
management of IT resources. For excepted software, EPA must provide 
OMB a brief narrative justification for each exception, with 
redactions as appropriate. Applicable exceptions are as follows:
    (i) The sharing of the source code is restricted by law or 
regulation, including--but not limited to--patent or intellectual 
property law, the Export Asset Regulations, the International 
Traffic in Arms Regulation and the federal laws and regulations 
governing classified information.
    (ii) The sharing of the source code would create an identifiable 
risk to the detriment of national security, confidentiality of 
government information or individual privacy.
    (iii) The sharing of the source code would create an 
identifiable risk to the stability, security or integrity of EPA's 
systems or personnel.

[[Page 55897]]

    (iv) The sharing of the source code would create an identifiable 
risk to EPA mission, programs or operations.
    (v) The CIO believes it is in the national interest to exempt 
sharing the source code.
    (c) The Contractor shall deliver to the Contracting Officer (CO) 
or Contracting Officer's Representative (COR) the underlying source 
code, license file, related files, build instructions, software 
user's guides, automated test suites, and other associated 
documentation as applicable.
    (d) In accordance with OMB Memorandum M-16-21 the Government 
asserts its unlimited rights--including rights to reproduction, 
reuse, modification and distribution of the custom source code, 
associated documentation, and related files--for reuse across the 
federal government and as open source software for the public. These 
unlimited rights described above attach to all code furnished in the 
performance of the contract, unless the parties expressly agree 
otherwise in the contract.
    (e) The Contractor is prohibited from reselling code developed 
under this contract without express written consent of the EPA 
Contracting Officer. The Contractor must provide at least 30 days 
advance notice if it intends to resell code developed under this 
contract.
    (f) Technical guidance for EPA's OSS Policy should conform with 
the ``EPA's Open Source Code Guidance'' that will be maintained by 
the Office of Mission Support (OMS) at https://developer.epa.gov/guide/open-source-code/ or equivalent.
    (g) The Contractor shall identify all deliverables and asserted 
restrictions as follows:
    (1) The Contractor shall use open source license either:
    (i) Identified in the contract, or
    (ii) Developed using one of the following licenses:
    (A) Creative Commons Zero (CC0);
    (B) MIT license;
    (C) GNU General Public License version 3 (GPL v3);
    (D) Lesser General Public License 2.1 (LGPL-2.1);
    (E) Apache 2.0 license; or
    (F) Other open source license subject to Agency approval.
    (2) The Contractor shall provide a copy of the proposed 
commercial license agreement to the Contracting Officer prior to 
contracting for commercial data/software.
    (3) The Contractor shall identify any data that will be 
delivered with restrictions.
    (4) The Contractor shall deliver the data package as specified 
by the EPA.
    (5) The Contractor shall deliver the source code to the EPA-
specified version control repository and source code management 
system.
    (h) The Contractor shall comply with software and data rights 
requirements and provide all licenses for software dependencies as 
follows:
    (1) The Contractor shall ensure all deliverables are 
appropriately marked with the applicable restrictive legends.
    (2) The EPA is deemed to have received unlimited rights when 
data or software is delivered by the Contractor with restrictive 
markings omitted.
    (3) If the delivery is made with restrictive markings that are 
not authorized by the contract, then the marking is characterized as 
``nonconforming.'' In accordance with Federal Acquisition Regulation 
(FAR) 46.407, Nonconforming supplies or services, the Contractor 
will be given the chance to correct or replace the nonconforming 
supplies within the required delivery schedule. If the Contractor is 
unable to deliver conforming supplies, then the EPA is deemed to 
have received unlimited rights to the nonconforming supplies.
    (i) The Contractor shall include this clause in all subcontracts 
that include custom-developed code requirements.

(End of clause)

[FR Doc. 2019-22435 Filed 10-17-19; 8:45 am]
 BILLING CODE 6560-50-P