[Federal Register Volume 85, Number 149 (Monday, August 3, 2020)]
[Rules and Regulations]
[Pages 46556-46559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15772]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1539 and 1552
[EPA-HQ-OARM-2018-0743; FRL-10011-94-OMS]
Environmental Protection Agency Acquisition Regulation (EPAAR);
Open Source Software
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is adding a new
clause to the EPAAR addressing open source software requirements,
including EPA's ability to share open source software developed under
its procurements.
DATES: This final rule is effective on August 3, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OARM-2018-0743. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Thomas Valentino, Policy, Training,
and Oversight Division, Office of Acquisition Solutions (3802R),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460; telephone number: 202-564-4522; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. 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. On October 18, 2019 (84 FR 55894) EPA sought
comments on the proposed rule and received four comments. One commenter
stated that a single location to access open-source code would be
easier to access and manage. The EPA agrees, and participates in the
https://code.gov/ platform provided by the General Services
Administration (GSA) to host open-source code. Another commenter stated
that protecting our nation's computer systems should be a high
[[Page 46557]]
priority, and the EPA agrees. The EPA also agrees with the commenter
who stated that this rule strikes a balance between government benefit
and risk. The EPA addressed the broad final comment by providing
procedures at https://www.usa.gov/complaint-against-government that
outlines how to file complaints.
II. Final Rule
The final rule creates EPA Acquisition Regulation (EPAAR) Part
1539, Acquisition of Information Technology, and adds 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.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and 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 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.
No information is collected under this action.
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 today's final 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; and
(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. This action
creates a new EPAAR clause and does not impose requirements involving
capital investment, implementing procedures, or record keeping. This
rule will not have a significant economic impact on small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 Executive Order 12886, and (2) concerns an
environmental health or safety risk that may have a proportionate
effect on children. This rule is not subject to Executive Order 13045
because it is not an economically significant rule as defined by
Executive Order 12866, and because it does not involve decisions on
environmental health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution of 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 NTTA, 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 NTTA directs EPA to provide
Congress, through OMB,
[[Page 46558]]
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This rulemaking 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 (E.O.) 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 final 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. This rulemaking does not involve human health or
environmental effects.
List of Subjects in 48 CFR Parts 1539 and 1552
Environmental protection, Government procurement, Reporting and
recordkeeping requirements.
Kimberly Patrick,
Director, Office of Acquisition Solutions.
For the reasons set forth in the preamble, EPA adds 48 CFR part
1539 and amends 48 CFR part 1552 as follows:
0
1. Add part 1539 to read as follows:
PART 1539--ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 1539.2--Open Source Software
Sec.
1539.2071 Contract clause
Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.
Subpart 1539.2--Open Source Software
Sec. 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
4. 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
5. Amend Subpart 1552.2, Texts of Provisions and Clauses, by adding
Sec. 1552.239-71 to read as follows:
Sec. 1552.239-71 Open Source Software.
As prescribed in Sec. 1539.2071, insert the following clause:
Open Source Software (AUG 2020)
(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: (i) 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 (ii) 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). 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.
[[Page 46559]]
(iii) The sharing of the source code would create an
identifiable risk to the stability, security or integrity of EPA's
systems or personnel.
(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); (4) Lesser General Public License 2.1 (LGPL-
2.1); (5) Apache 2.0 license; or (6) 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. 2020-15772 Filed 7-31-20; 8:45 am]
BILLING CODE 6560-50-P