Environmental Protection Agency Acquisition Regulation (EPAAR); Open Source Software, 46556-46559 [2020-15772]
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46556
Federal Register / Vol. 85, No. 149 / Monday, August 3, 2020 / Rules and Regulations
ar-methyl- (PMN P–18–358, CAS No.
568591–00–4) is subject to reporting
under this section for the significant
new uses described in paragraph (a)(2)
of this section.
(2) The significant new uses are:
(i) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80(y)(1). It is a
significant new use to use the chemical
substance for other than as a curing
agent within carbon fiber reinforced
plastics prepreg or a curing agent in
industrial adhesives for electronics.
(ii) [Reserved]
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph (b).
(1) Recordkeeping. Recordkeeping
requirements as specified in
§ 721.125(a) through (c), and (i) are
applicable to manufacturers and
processors of this substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
(3) Determining whether a specific use
is subject to this section. The provisions
of § 721.1725(b)(1) apply to paragraph
(a)(2)(i) of this section.
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§ 721.11379
Lithium, isotope of mass 6.
(a) Chemical substance and
significant new uses subject to reporting.
(1) The chemical substance identified as
lithium, isotope of mass 6 (P–18–384,
CASRN 14258–72–1) is subject to
reporting under this section for the
significant new uses described in
paragraph (a)(2) of this section.
(2) The significant new uses are:
(i) Industrial, Commercial, and
consumer activities. It is a significant
new use to manufacture, process or use
the chemical substance without the
workplace engineering controls
described in the PMN. It is a significant
new use to use the chemical substance
other than as a starting material for
manufacture of 6-Lithium halide
scintillation crystals for use in radiation
detection.
(ii) Release to water. Requirements as
specified in § 721.90(a)(4), (b)(4), and
(c)(4) where N = 8.5.
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph (b).
(1) Recordkeeping. Recordkeeping
requirements as specified in
§ 721.125(a) through (c), (i), and (k) are
applicable to manufacturers, importers,
and processors of this substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
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(3) Determining whether a specific use
is subject to this section. The provisions
of § 721.1725(b)(1) apply to paragraph
(a)(2)(i) of this section.
§ 721.11380 Silsesquioxanes, 3(dimethyloctadecylammonio)propyl Me Pr,
polymers with silicic acid (H4SiO4) tetra-Et
ester, (2-hydroxyethoxy)- and methoxyterminated, chlorides.
(a) Chemical substance and
significant new uses subject to reporting.
(1) The chemical substance identified as
silsesquioxanes, 3(dimethyloctadecylammonio)propyl Me
Pr, polymers with silicic acid (H4SiO4)
tetra-Et ester, (2-hydroxyethoxy)- and
methoxy-terminated, chlorides. (PMN
P–19–24, CAS No. 35501–23–6) is
subject to reporting under this section
for the significant new uses described in
paragraph (a)(2) of this section.
(2) The significant new uses are:
(i) Industrial, commercial, and
consumer activities. It is a significant
new use to use the substance other than
as an asphalt additive or asphalt
emulsion additive. It is a significant
new use to use the chemical substance
as an asphalt additive in a manner that
results in inhalation exposure to
respirable particles or droplets
containing the chemical substance.
(ii) Release to water. Requirements as
specified in § 721.90(a)(4), (b)(4), and
(c)(4) where N=8.
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph (b).
(1) Recordkeeping. Recordkeeping
requirements as specified in
§ 721.125(a) through (c), (i), and (k) are
applicable to manufacturers and
processors of this substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
[FR Doc. 2020–15014 Filed 7–31–20; 8:45 am]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is adding a new clause to
SUMMARY:
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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 https://
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: valentino.thomas@
epa.gov.
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 customdeveloped 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
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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-againstgovernment 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 § 1539.2071, Contract
clause. EPAAR Subpart 1552.2, Texts of
Provisions and Clauses, is amended by
adding EPAAR § 1552.239–71, Open
Source Software.
1. EPAAR Subpart 1539.2 adds the
new subpart.
2. EPAAR § 1539.2071 adds the
prescription for use of § 1552.239–71 in
all procurements where open-source
software development/custom
development of software will be
required.
3. EPAAR § 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.
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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.
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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
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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,
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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.
For the reasons set forth in the
preamble, EPA adds 48 CFR part 1539
and amends 48 CFR part 1552 as
follows:
■ 1. Add part 1539 to read as follows:
Subpart 1539.2—Open Source
Software
Sec.
1539.2071
Contract clause
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Authority: 5 U.S.C. 301 and 41 U.S.C.
418b.
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
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PART 1552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
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.
5. Amend Subpart 1552.2, Texts of
Provisions and Clauses, by adding
§ 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 (AUG 2020)
Kimberly Patrick,
Director, Office of Acquisition Solutions.
PART 1539—ACQUISITION OF
INFORMATION TECHNOLOGY
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 opensource software procurement use
because it gives the contractor blanket
permission to assert copyright.)
(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.
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‘‘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.
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(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
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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.
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46559
(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 customdeveloped code requirements.
(End of clause)
[FR Doc. 2020–15772 Filed 7–31–20; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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
