90254 Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Proposed Rules 

24Comments received on the 2023 Proposal are 

contained in the same docket as the current 

proposal: Docket ID No. EPA–R03–OAR–2022– 

0987. 

be due to permanent and enforceable 

measures. Therefore, the designation 

status of the Washington Area will 

remain nonattainment for the 2015 8- 

hour ozone NAAQS until such time as 

DC, MD, and VA submit a request for 

redesignation pursuant to 107(d)(3) of 

the CAA and the EPA determines that 

the area meets the CAA requirements for 

redesignation to attainment and takes 

action to redesignate the area. 

The EPA also proposes to take final 

agency action on an exceptional events 

request submitted by DC on March 20, 

2024, and concurred on by the EPA on 

July 17, 2024. 

The EPA is soliciting public 

comments on the issues discussed in 

this document. These comments will be 

considered before taking final action. 

The EPA previously received comments 

on the 2023 CDD Proposal (88 FR 6688, 

February 1, 2023). In re-proposing the 

CDD, the EPA will consider all 

comments received on the 2023 CDD 

Proposal as the Agency moves forward 

with the current rulemaking. 

Accordingly, commenters need not 

submit duplicate comments on the 

current proposal.24 However, the EPA 

welcomes comments providing 

additional information not previously 

submitted to the Agency. 

V. Statutory and Executive Order 

Reviews 

This rulemaking proposes to make an 

attainment determination based on air 

quality data and would, if finalized, 

result in the suspension of certain 

Federal requirements and would not 

impose any additional requirements. 

For that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); and 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA. 

Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The EPA did not perform an EJ 

analysis and did not consider EJ in this 

action. Due to the nature of the action 

being taken here, this action is expected 

to have a neutral to positive impact on 

the air quality of the affected area. 

Consideration of EJ is not required as 

part of this action, and there is no 

information in the record inconsistent 

with the stated goal of E.O. 12898 of 

achieving environmental justice for 

people of color, low-income population, 

and Indigenous peoples. 

In addition, this action for the 

Washington Area does not have Tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because this action is not 

approved to apply in Indian country 

located in the Washington Area, and the 

EPA notes that it will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Ozone, Reporting and 

recordkeeping requirements. 

Adam Ortiz, 

Regional Administrator, Region III. 

[FR Doc. 2024–26423 Filed 11–14–24; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 213, 217, 239, and 

252 

[Docket DARS–2024–0034] 

RIN 0750–AK23 

Defense Federal Acquisition 

Regulation Supplement: Disclosure of 

Information Regarding Foreign 

Obligations (DFARS Case 2018–D064) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2019, which prohibits DoD from 

acquiring products, services, or systems 

relating to information or operational 

technology, cybersecurity, industrial 

control systems, or weapon systems 

through a contract unless the offeror or 

contractor provides disclosures related 

to sharing source code and computer 

code with foreign governments. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

January 14, 2025, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D064, 

using either of the following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

DFARS Case 2018–D064. Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2018–D064’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D064 in the subject 

line of the message. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 


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confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Heather Kitchens, telephone 571–296– 

7152. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement section 1655(a) and (c) of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2019 (Pub. 

L. 115–232). Section 1655(a) prohibits 

DoD from acquiring products, services, 

or systems relating to information or 

operational technology, cybersecurity, 

industrial control systems, or weapon 

systems through a contract unless the 

offeror or contractor provides 

disclosures related to sharing source 

code and computer code with foreign 

governments. Section 1655(c) requires 

contracts for those products, services, or 

systems to include a clause requiring 

the disclosures during the contract 

period of performance if an entity 

becomes aware of information requiring 

disclosure. 

The first part of the disclosure is 

related to whether, after August 12, 

2013, the entity making the disclosure 

has allowed, or is under an obligation to 

allow, a foreign government to review 

the code of a noncommercial product, 

system, or service developed for DoD. 

The second part of the disclosure 

pertains to whether, after August 12, 

2013, the entity making the disclosure 

has allowed, or is under an obligation to 

allow, a foreign government in a list 

required by section 1654 of the NDAA 

for FY 2019 to review the source code 

of a product, system, or service that DoD 

is using or intends to use. 

The third part of the disclosure is 

related to whether the entity making the 

disclosure holds or has sought a license 

pursuant to the Export Administration 

Regulations (15 CFR chapter VII, 

subchapter C), the International Traffic 

in Arms Regulations (22 CFR chapter I, 

subchapter M), or successor regulations, 

for information technology products, 

components, software, or services that 

contain code custom-developed for the 

noncommercial product, system, or 

service DoD is using or intends to use. 

Once the disclosures are provided to 

DoD, and if the Secretary of Defense 

determines that the disclosure relating 

to a product, system, or service entails 

a risk to the national security 

infrastructure or data of the United 

States, or any national security system 

under the control of DoD, section 1655 

requires the Secretary to take such 

measures as the Secretary considers 

appropriate to mitigate such risks. In 

addition, as the Secretary considers 

appropriate, the Secretary may 

condition any agreement for the use, 

procurement, or acquisition of the 

product, system, or service on the 

inclusion of enforceable conditions or 

requirements that would mitigate such 

risks. 

II. Discussion and Analysis 

This proposed rule includes a new 

subpart, 239.7X, Disclosure of 

Information Regarding Foreign 

Obligations. Section 239.7X00 describes 

the statutory requirement implemented 

in the new subpart. Section 239.7X01 

includes new definitions of computer 

code, open source software, and source 

code. The new subpart includes the 

section 1655 prohibition at 239.7X02. 

Section 239.7X03 clarifies that the 

prohibition does not apply to open 

source software. 

A section on procedures was added at 

239.7X04 to require contracting officers 

to validate in the Catalog Data Standard 

within the Electronic Data Access (EDA) 

system (https://piee.eb.mil) that offerors 

or contractors have completed all 

foreign obligation disclosures prior to 

awarding a contract or exercising an 

option. Section 1655 prohibits DoD from 

using a product, service, or system 

procured or acquired under certain 

awards unless foreign obligation 

disclosures have been made. This 

proposed rule requires completion of 

the foreign obligation disclosures prior 

to exercising an option to ensure DoD 

complies with the statutory intent. 

Section 239.7X05 provides 

prescriptions for a new solicitation 

provision and contract clause. The new 

provision is prescribed for use in 

solicitations that include the clause at 

252.239–70ZZ, Postaward Disclosure of 

Foreign Obligations. The new clause is 

prescribed for use in solicitations and 

contracts, task orders, or delivery 

orders, for the acquisition of products, 

services, or systems relating to 

information or operational technology, 

cybersecurity, industrial control 

systems, or weapon systems, including 

those using Federal Acquisition 

Regulation (FAR) part 12 procedures for 

the acquisition of commercial products 

and commercial services. 

The purpose of the provision at 

252.239–70YY, Preaward Disclosure of 

Foreign Obligations—Representation, is 

to notify offerors that they will be 

required to make disclosures within the 

Catalog Data Standard in the Electronic 

Data Access (EDA) system (https://

piee.eb.mil) in order to be eligible for 

award. While there are three distinct 

disclosures, the provision identifies the 

first and second disclosures in one 

paragraph at 252.239–70YY, paragraph 

(c)(1), for clarity. The third disclosure is 

identified at paragraph (c)(2). This 

provision includes a requirement for all 

offerors to represent by submission of 

the offer that the information on the 

foreign disclosures the offeror has made 

within the Catalog Data Standard in 

EDA is current, accurate, and complete. 

The purpose of the clause at 252.239– 

70ZZ, Postaward Disclosure of Foreign 

Obligations, is to require contractors to 

maintain their disclosures in the Catalog 

Data Standard within EDA and flow 

down the requirement to maintain 

disclosures in the Catalog Data Standard 

within EDA to subcontractors. Similar 

to the provision, while there are three 

distinct disclosures, the clause 

identifies the first and second 

disclosures in one paragraph at 

252.239–70XX, paragraph (b)(1), for 

clarity. The third disclosure is identified 

at paragraph (b)(2). The clause also 

requires contractors to require their 

subcontractors to complete foreign 

obligation disclosures in the Catalog 

Data Standard in EDA prior to awarding 

the subcontract. 

Language was added at part 212 to 

apply the provision and clause to the 

acquisition of commercial products and 

commercial services. In part 213, 

language was added to apply the 

requirement to disclose foreign 

obligations will be applied at or below 

the micro-purchase threshold. Language 

was also added at part 217 to instruct 

the contracting officer exercise options 

only after verifying in the Catalog Data 

Standard in the EDA system (https://

piee.eb.mil) that all disclosures have 

been completed. 

III. Applicability to Contracts At or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Services and Commercial Products, 

Including Commercially Available Offthe-Shelf (COTS) Items 

This proposed rule proposes a new 

provision and clause to implement the 

requirements of section 1655 of the 

NDAA for FY 2019: (1) DFARS 252.239– 

70YY, Preaward Disclosure of Foreign 

Obligations-Representation; and (2) 

DFARS 252.239–70ZZ, Postaward 

Disclosure of Foreign Obligations. The 

provision at DFARS 252.239–70YY is 

prescribed at DFARS 239.7X05(a) for 

use in solicitations that include the 

clause at DFARS 252.239–70ZZ. The 

clause at DFARS 252.239–70ZZ is 

prescribed at DFARS 239.7X05(b) for 

use in solicitations and contracts for the 

acquisition of products, services, or 


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systems relating to information or 

operational technology, cybersecurity, 

industrial control systems, or weapon 

systems, including those using FAR part 

12 procedures for the acquisition of 

commercial products and commercial 

services. DoD does intend to apply the 

proposed rule to contracts at or below 

the SAT. DoD does intend to apply the 

proposed rule to contracts for the 

acquisition of commercial products 

including COTS items and for the 

acquisition of commercial services. 

A. Applicability to Contracts At or 

Below the Simplified Acquisition 

Threshold 

The statute at 41 U.S.C. 1905 governs 

the applicability of laws to contracts or 

subcontracts in amounts not greater 

than the simplified acquisition 

threshold. It is intended to limit the 

applicability of laws to such contracts or 

subcontracts. The statute at 41 U.S.C. 

1905 provides that if a provision of law 

contains criminal or civil penalties, or if 

the Federal Acquisition Regulatory 

Council makes a written determination 

that it is not in the best interest of the 

Federal Government to exempt contracts 

or subcontracts at or below the SAT, the 

law will apply to them. The Principal 

Director, Defense Pricing, Contracting, 

and Acquisition Policy (DPCAP), is the 

appropriate authority to make 

comparable determinations for 

regulations to be published in the 

DFARS, which is part of the FAR system 

of regulations. DoD does intend to make 

that determination. Therefore, this 

proposed rule will apply at or below the 

simplified acquisition threshold. 

B. Applicability to Contracts for the 

Acquisition of Commercial Products 

Including COTS Items and for the 

Acquisition of Commercial Services 

The statute at 10 U.S.C. 3452 exempts 

contracts and subcontracts for the 

acquisition of commercial products 

including COTS items, and commercial 

services from provisions of law enacted 

after October 13, 1994, unless the Under 

Secretary of Defense (Acquisition and 

Sustainment) (USD(A&S)) makes a 

written determination that it would not 

be in the best interest of DoD to exempt 

contracts for the procurement of 

commercial products and commercial 

services from the applicability of the 

provision or contract requirement, 

except for a provision of law that— 

• Provides for criminal or civil 

penalties; 

• Requires that certain articles be 

bought from American sources pursuant 

to 10 U.S.C. 4862, or that strategic 

materials critical to national security be 

bought from American sources pursuant 

to 10 U.S.C. 4863; or 

• Specifically refers to 10 U.S.C. 3452 

and states that it shall apply to contracts 

and subcontracts for the acquisition of 

commercial products (including COTS 

items) and commercial services. 

The statute implemented in this 

proposed rule does not impose criminal 

or civil penalties, does not require 

purchase pursuant to 10 U.S.C. 4862 or 

4863, and does not refer to 10 U.S.C. 

3452. Therefore, section 1655 of the 

NDAA for FY 2019 will not apply to the 

acquisition of commercial services or 

commercial products including COTS 

items unless a written determination is 

made. Due to delegations of authority, 

the Principal Director, DPCAP is the 

appropriate authority to make this 

determination. DoD intends to make 

that determination to apply this statute 

to the acquisition of commercial 

products including COTS items and to 

the acquisition of commercial services. 

Therefore, this proposed rule will apply 

to the acquisition of commercial 

products including COTS items and to 

the acquisition of commercial services. 

C. Determinations 

Given that the requirements of section 

1655 of the NDAA for FY 2019 were 

enacted to require disclosures of foreign 

obligations by contractors for contracts 

that include products, services, or 

systems relating to information or 

operational technology, cybersecurity, 

industrial control systems, or weapon 

systems and since products, services, or 

systems related to information or 

operational technology, cybersecurity, 

industrial control systems or weapon 

systems can include COTS items and 

awards at or below the SAT, it is in the 

best interest of the Federal Government 

to apply the statute to contracts for the 

acquisition of commercial services and 

commercial products, including COTS 

items, as defined at Federal Acquisition 

Regulation 2.101 and awards that are at 

or below the SAT. An exception for 

contracts for the acquisition of 

commercial services and commercial 

products, including COTS items, or for 

contracts or subcontracts valued at or 

below the SAT, would exclude the 

contracts intended to be covered by the 

law, thereby undermining the 

overarching public policy purpose of 

the law. 

IV. Expected Impact of the Rule 

The proposed rule implements 

section 1655 of the NDAA for FY 2019, 

which prohibits DoD from acquiring 

products, services, or systems relating to 

information or operational technology, 

cybersecurity, industrial control 

systems, or weapon systems through a 

contract unless the offeror or contractor 

provides disclosures related to sharing 

source code and computer code with 

foreign governments. Based on data 

from the Federal Procurement Data 

System, DoD issued approximately 

36,677 new awards for information 

technology and weapon systems to 

approximately 4,147 unique entities per 

year on average from FY 2021 through 

FY 2023. DoD assumes this number will 

cover awardees for information or 

operational technology, cybersecurity, 

industrial control systems, and weapon 

systems, as there is no way to track 

individual awards for operational 

technology, industrial control systems, 

and cybersecurity. Of the 4,147 unique 

entities, on average, that received 

awards each year, an average of 

approximately 17,100 awards were 

made to 2,667 unique small entities 

from FY 2021 through FY 2023. DoD 

assumes that the clause will apply to the 

estimated 4,147 unique entities, 

including the 2,667 unique small 

entities. 

DoD does not have a way to track the 

number of unique offerors per award, so 

DoD estimates that the number of 

offerors is the number of unique entities 

that received awards (i.e., 4,147) 

multiplied by a factor of three, 

representing three offerors per award. 

Therefore, the estimated number of 

offerors is three times the average 

number of entities that received 

information technology and weapon 

systems awards for FY 2021 through FY 

2023 (4,147 entities × 3), or 12,441, of 

which 8,002 are estimated to be small 

entities. 

The proposed changes will require 

offerors for products, services, or 

systems related to information or 

operational technology, cybersecurity, 

industrial control systems, or weapon 

systems to make certain disclosures in 

the Catalog Data Standard within EDA 

(https://piee.eb.mil) regarding whether 

they have shared certain source code 

and computer code with foreign persons 

or governments any time since August 

12, 2013. During contract performance, 

prior to the exercise of any option, 

contractors will be required to update 

their disclosures in the Catalog Data 

Standard within EDA. 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 


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Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Proposed Rules 90257 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, as amended. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule, when finalized, to have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule is only applied to 

awards for products, services, or 

systems related to information or 

operational technology, cybersecurity, 

industrial control systems, or weapon 

systems. However, an initial regulatory 

flexibility analysis has been performed 

and is summarized as follows: 

This proposed rule is necessary to 

implement section 1655 of the NDAA 

for FY 2019. Section 1655 prohibits DoD 

from using a product, service, or system 

relating to information or operational 

technology, cybersecurity, industrial 

control systems, or weapon systems 

provided by an entity unless that entity 

makes certain disclosures. The 

disclosures required by the statute have 

three parts. 

The first part of the disclosures is 

related to whether, since August 12, 

2013, the entity making the disclosure 

has allowed, or is under an obligation to 

allow, a foreign government to review 

the code of an other than commercial 

product, system, or service developed 

for DoD. The second part of the 

disclosure pertains to whether, since 

August 12, 2013, the entity making the 

disclosure has allowed, or is under an 

obligation to allow, a foreign 

government in the list required by 

section 1654 of the NDAA for FY 2019 

to review the source code of a product, 

system, or service that DoD is using or 

intends to use. The third part of the 

disclosure is related to whether the 

entity making the disclosure holds or 

has sought a license pursuant to the 

Export Administration Regulations (15 

CFR chapter VII, subchapter C), the 

International Traffic in Arms 

Regulations (22 CFR chapter I, 

subchapter M), or successor regulations, 

for information technology products, 

components, software, or services that 

contain code custom-developed for the 

other than commercial product, system, 

or service DoD is using or intends to 

use. 

Once the disclosures are provided to 

DoD, and if the Secretary of Defense 

determines that the disclosure relating 

to a product, system, or service entails 

a risk to the national security 

infrastructure or data of the United 

States, or any national security system 

under the control of DoD, section 1655 

requires the Secretary to take such 

measures as the Secretary considers 

appropriate to mitigate such risks. 

The objective of this proposed rule is 

to implement the statutory requirement 

for offeror, contractor, and subcontractor 

disclosures under section 1655 of the 

NDAA for FY 2019 prior to award and 

during contract performance. The legal 

basis for the proposed rule is section 

1655 of the NDAA for FY 2019. 

The proposed rule applies to offerors, 

contractors, and subcontractors for 

information or operational technology, 

cybersecurity, industrial control 

systems, or weapon systems. Based on 

data from the Federal Procurement Data 

System, DoD issued approximately 

36,677 awards to 4,147 entities, of 

which 17,100 awards were made to 

2,667 small entities, for information 

technology and weapon systems, on 

average, from FY 2021 through FY 2023. 

DoD assumes these numbers will cover 

small entities awarded contracts for 

products, services, or systems relating to 

information or operational technology, 

cybersecurity, industrial control 

systems, and weapon systems, as there 

is no way to track individual awards for 

operational technology, cybersecurity, 

and industrial control systems. In order 

to estimate the number of offerors for 

information or operational technology, 

cybersecurity, industrial control 

systems, and weapon systems, DoD 

assumes the number of offerors will be 

the 4,147 awardees multiplied by a 

factor of three, or 12,441 offerors, of 

which 8,002 are estimated to be small 

entities. 

This proposed rule does impose new 

reporting, recordkeeping, or other 

compliance requirements for small 

entities. These reporting requirements 

would apply to any offerors that are 

small entities for a contract for 

information or operational technology, 

cybersecurity, industrial control 

systems, and weapon systems. These 

small entities will be required to make 

disclosures within the Catalog Data 

Standard within the EDA system 

(https://piee.eb.mil) in order to be 

eligible for award and will be required 

to represent that the disclosures are 

current, accurate, and complete. 

Contractors whose contracts contain the 

clause 252.239–70ZZ, Postaward 

Disclosure of Foreign Obligations, will 

be required to maintain their disclosures 

in EDA and flow down the requirement 

to maintain disclosures in EDA to 

subcontracts and other contractual 

instruments. 

The proposed rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. 

There are no known alternatives that 

would accomplish the stated objectives 

of the applicable statute. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

proposed rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this proposed rule in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 610 (DFARS 

Case 2018–D064) in correspondence. 

VII. Paperwork Reduction Act 

This proposed rule contains 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). Accordingly, DoD has 

submitted a request for approval of a 

new information collection requirement 

concerning DFARS Case 2018–D064, 

Disclosure of Information Regarding 

Foreign Obligations, to the Office of 

Management and Budget. 

A. Estimate of Public Burden 

Public reporting burden for this 

collection of information is estimated to 

average 0.5 hour per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

The annual reporting burden is 

estimated as follows: 

Respondents: 12,441. 

Total annual responses: 14,515. 

Total annual burden hours: 7,257.5. 

B. Request for Comments Regarding 

Paperwork Burden 

Written comments and 

recommendations on the proposed 

information collection, including 

suggestions for reducing this burden, 

should be submitted using the Federal 

eRulemaking Portal at https://

www.regulations.gov or by email to 

osd.dfars@mail.mil. Comments can be 

received up to 60 days after the date of 

this notice. 

Public comments are particularly 

invited on: whether this collection of 

information is necessary for the proper 

performance of the functions of DoD, 

including whether the information will 


khammond on DSKJM1Z7X2PROD with PROPOSALS
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have practical utility; the accuracy of 

DoD’s estimate of the burden of this 

information collection; ways to enhance 

the quality, utility, and clarity of the 

information to be collected; and ways to 

minimize the burden of the information 

collection on respondents, including 

through the use of automated collection 

techniques or other forms of information 

technology. 

To obtain a copy of the supporting 

statement and associated collection 

instruments, please email osd.dfars@

mail.mil. Include DFARS Case 2018– 

D064 in the subject line of the message. 

List of Subjects in 48 CFR Parts 212, 

213, 217, 239, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System proposes to amend 

48 CFR parts 212, 213, 217, 239, and 

252 as follows: 

■ 1. The authority citation for parts 212, 

213, 217, 239, and 252 continues to read 

as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

■ 2. Amend section 212.301 by adding 

paragraphs (f)(xvi)(E) and (F) to read as 

follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

* * * * * 

(f) * * * 

(xvi) * * * 

(E) Use the provision at 252.239– 

70YY, Preaward Disclosure of Foreign 

Obligations—Representation, as 

prescribed in 239.7X05(a), to comply 

with section 1655 of the National 

Defense Authorization Act for Fiscal 

Year 2019 (Pub. L. 115–232). 

(F) Use the clause at 252.239–70ZZ, 

Postaward Disclosure of Foreign 

Obligations, as prescribed at 

239.7X05(b), to comply with section 

1655 of the National Defense 

Authorization Act for Fiscal Year 2019 

(Pub. L. 115–232). 

* * * * * 

PART 213—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 3. Add section 213.201–70 to read as 

follows: 

213.201–70 Additional general 

requirements. 

Do not procure or obtain, or exercise 

an option or otherwise extend a contract 

relating to, information or operational 

technology, cybersecurity, industrial 

control systems, or weapon systems 

from a contractor, including through a 

subcontractor at any tier, unless the 

contractor completes all foreign 

obligation disclosures in the Catalog 

Data Standard within the Electronic 

Data Access system (https://piee.eb.mil). 

See subpart 239.7X. 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 4. Amend section 217.207 by adding 

paragraph (c)(3) to read as follows: 

217.207 Exercise of options. 

(c) * * * 

(3) Verifying in the Catalog Data 

Standard in the Electronic Data Access 

system (https://piee.eb.mil) that all 

foreign obligation disclosures are 

completed (see 239.7X). 

PART 239—ACQUISITION OF 

INFORMATION TECHNOLOGY 

■ 5. Add subpart 239.7X to read as 

follows: 

Subpart 239.7X—Disclosure of Information 

Regarding Foreign Obligations 

Sec. 

239.7X00 Scope. 

239.7X01 Definitions. 

239.7X02 Prohibition. 

239.7X03 Exception. 

239.7X04 Procedures. 

239.7X05 Solicitation provision and 

contract clause. 

SUBPART 239.7X—DISCLOSURE OF 

INFORMATION REGARDING FOREIGN 

OBLIGATIONS 

239.7X00 Scope. 

This section implements the foreign 

obligation disclosure requirements of 

section 1655(a) and (c) of the National 

Defense Authorization Act for Fiscal 

Year 2019 (Pub. L. 115–232). 

239.7X01 Definitions. 

As used in this subpart— 

Computer code means a set of 

instructions, rules, or routines recorded 

in a form that is capable of causing a 

computer to perform a specific 

operation or series of operations. It 

includes both source code and object 

code. 

Open source software means software 

for which the human-readable source 

code is available for use, study, reuse, 

modification, enhancement, and 

redistribution by the users of such 

software (section 1655, Pub. L. 115– 

232). 

Source code means any collection of 

code, with or without comments, 

written using a human-readable 

programming language, usually as plain 

text. This code is later translated into 

machine language by a compiler. The 

translated code is referred to as object 

code. 

239.7X02 Prohibition. 

(a) Contracting officers shall not 

procure or obtain, or exercise an option 

or otherwise extend a contract to 

procure or obtain, any products, 

services, or systems relating to 

information or operational technology, 

cybersecurity, industrial control 

systems, or weapon systems through a 

contract or subcontract at any tier from 

a prospective contractor unless the 

offeror or contractor makes the 

disclosures required by section 1655 of 

the NDAA for FY 2019. 

(b) Contracting officers shall ensure 

that they do not violate the prohibition 

by using the provision at 252.239–70YY 

and the clause at 252.239–70ZZ, as 

prescribed. The provision requires 

offerors to provide the required foreign 

obligation disclosures, and the clause 

ensures that contractors provide updates 

to foreign obligation disclosures for the 

life of the contract. 

239.7X03 Exception. 

The prohibition at 239.7X02 does not 

apply to open source software. 

239.7X04 Procedures. 

(a) Contracting officers shall not 

award a contract, task order, or delivery 

order for information or operational 

technology, cybersecurity, industrial 

control systems, or weapon systems, 

unless the prospective contractor has 

completed all of the foreign obligation 

disclosures in the Catalog Data Standard 

within the Electronic Data Access (EDA) 

system (https://piee.eb.mil) and those 

disclosures are current, accurate, and 

complete (see 239.7X02). 

(b) Contracting officers shall not 

exercise an option or extend the period 

of performance on a contract, task order, 

or delivery order for information or 

operational technology, cybersecurity, 

industrial control systems, or weapons 

systems, unless the contractor has 

completed all of the foreign obligation 

disclosures in the Catalog Data Standard 

within the EDA system (see 239.7X02). 

(c) Contracting officers shall work 

with the program office to validate that 

the offeror has completed all of the 

foreign obligation disclosures in the 

Catalog Data Standard within the EDA 

system. 


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Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Proposed Rules 90259 

(d) Contracting officers shall follow 

agency procedures, as applicable, in the 

event that the program office notifies the 

contracting officer that additional steps 

must be taken prior to award based on 

information disclosed in EDA. 

239.7X05 Solicitation provision and 

contract clause. 

(a) Use the provision at 252.239– 

70YY, Preaward Disclosure of Foreign 

Obligations—Representation, in 

solicitations that include the clause at 

252.239–70ZZ. 

(b) Use the clause at 252.239–70ZZ, 

Postaward Disclosure of Foreign 

Obligations, in solicitations and 

contracts, task orders, or delivery 

orders, including those using FAR part 

12 procedures for the acquisition of 

commercial products and commercial 

services, for the acquisition of products, 

services, or systems relating to 

information or operational technology, 

cybersecurity, industrial control 

systems, or weapon systems. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Add sections 252.239–70YY and 

252.239–70ZZ to read as follows: 

252.239–70YY Preaward Disclosure of 

Foreign Obligations—Representation. 

As prescribed in 239.7X05(a), use the 

following provision: 

Preaward Disclosure of Foreign 

Obligations—Representation (Date) 

(a) Definitions. As used in this provision, 

computer code, open source software, and 

source code are defined in the Defense 

Federal Acquisition Regulation Supplement 

252.239–70ZZ, Postaward Disclosure of 

Foreign Obligations, clause of this 

solicitation. 

(b) Prohibition on award. In accordance 

with section 1655 of Public Law 115–232, no 

contract for information or operational 

technology, cybersecurity, industrial control 

systems, or weapon systems may be awarded 

to an offeror unless the offeror makes the 

disclosures described in paragraph (c). 

(c) Disclosures. The Offeror shall complete 

the following foreign obligation disclosures 

in the Catalog Data Standard in the Electronic 

Data Access (EDA) system (https://

piee.eb.mil): 

(1) Whether, and if so, when, at any time 

after August 12, 2013, the Offeror— 

(i) Has allowed a foreign person or foreign 

government to review the source code for any 

product, system, or service that DoD is using 

or intends to use, or the computer code for 

any other than commercial product, system, 

or service developed for DoD; or 

(ii) Is under any obligation to allow a 

foreign person or foreign government to 

review, as a condition of entering into an 

agreement for sale or other transaction with 

a foreign government or with a foreign person 

on behalf of such a government— 

(A) The source code for any product, 

system, or service that DoD is using or 

intends to use; or 

(B) The computer code for any other than 

commercial product, system, or service 

developed for DoD; and 

(2) Whether or not the Offeror holds or has 

sought a license pursuant to the Export 

Administration Regulations (15 CFR chapter 

VII, subchapter C) or the International Traffic 

in Arms Regulations (22 CFR chapter I, 

subchapter M) for information technology 

products, components, software, or services 

that contain computer code customdeveloped for the other than commercial 

product, system, or service DoD is procuring. 

(d) Exception. The prohibition in 

paragraph (b) of this provision does not apply 

to open source software. 

(e) Representation. By submission of its 

offer, the Offeror represents that it has 

completed the foreign obligation disclosures 

in EDA and the disclosures are current, 

accurate, and complete. 

(End of provision) 

252.239–70ZZ Postaward Disclosure of 

Foreign Obligations. 

As prescribed in 239.7X05(b), use the 

following clause: 

Postaward Disclosure of Foreign 

Obligations (Date) 

(a) Definitions. As used in this clause— 

Computer code means a set of instructions, 

rules, or routines recorded in a form that is 

capable of causing a computer to perform a 

specific operation or series of operations. It 

includes both source code and object code. 

Open source software means software for 

which the human-readable source code is 

available for use, study, reuse, modification, 

enhancement, and redistribution by the users 

of such software (section 1655, Pub. L. 115– 

232). 

Source code means any collection of code, 

with or without comments, written using a 

human-readable programming language, 

usually as plain text. This code is later 

translated into machine language by a 

compiler. The translated code is referred to 

as object code. 

(b) Prohibition. The Contractor shall not 

provide to DoD any products, services, or 

systems relating to information or operational 

technology, cybersecurity, industrial control 

systems, or weapon systems through a 

contract or subcontract at any tier unless the 

Contractor makes the disclosures described 

in paragraph (c). 

(c) Disclosures. The Contractor shall 

complete the following foreign obligation 

disclosures in the Catalog Data Standard in 

the Electronic Data Access (EDA) system 

(https://piee.eb.mil): 

(1) Whether, and if so, when, at any time 

after August 12, 2013, the Contractor— 

(i) Has allowed a foreign person or foreign 

government to review the source code for any 

product, system, or service that DoD is using 

or intends to use, or the computer code for 

any other than commercial product, system, 

or service developed for DoD; 

(ii) Is under any obligation to allow a 

foreign person or foreign government to 

review, as a condition of entering into an 

agreement for sale or other transaction with 

a foreign government or with a foreign person 

on behalf of such a government— 

(A) The source code for any product, 

system, or service that DoD is using or 

intends to use; or 

(B) The computer code for any other than 

commercial product, system, or service 

developed for DoD; and 

(2) Whether or not the supplier holds or 

has sought a license pursuant to the Export 

Administration Regulations (15 CFR chapter 

VII, subchapter C) or the International Traffic 

in Arms Regulations (22 CFR chapter I, 

subchapter M) for information technology 

products, components, software, or services 

that contain computer code customdeveloped for the other than commercial 

product, system, or service DoD is using or 

intends to use. 

(d) Maintenance of disclosures. The 

Contractor shall maintain its foreign 

obligation disclosures in EDA for the life of 

the contract. 

(e) Identification of information requiring 

disclosure. In the event the Contractor 

identifies information requiring disclosure 

during contract performance, or the 

Contractor is notified of such by a 

subcontractor at any tier or any other source, 

the Contractor shall update its disclosures in 

EDA and shall disclose any mitigation 

measures taken or anticipated. 

(f) Exception. The prohibition in paragraph 

(b) does not apply to open source software. 

(g) Subcontracts. The Contractor shall— 

(1) Insert the substance of this clause, 

including this paragraph (g), in subcontracts, 

or other contractual instruments, for the 

acquisition of products, services, or systems 

relating to information or operational 

technology, cybersecurity, industrial control 

systems, or weapon systems, including those 

for commercial products and commercial 

services; and 

(2) Require the subcontractor to complete 

the foreign obligation disclosures in EDA 

prior to awarding a subcontract. 

(End of clause) 

[FR Doc. 2024–26058 Filed 11–14–24; 8:45 am] 

BILLING CODE 6001–FR–P 


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