80 FR 67672 - Open Licensing Requirement for Direct Grant Programs

DEPARTMENT OF EDUCATION

Federal Register Volume 80, Issue 212 (November 3, 2015)

The Secretary proposes to amend the regulations regarding the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in order to require that all Department grantees awarded direct competitive grant funds openly license to the public all copyrightable intellectual property created with Department grant funds. These proposed changes would increase the Department's ability to be more strategic with limited resources, broadening the impact of its investments by allowing stakeholders, such as local educational agencies (LEAs), State educational agencies (SEAs), institutions of higher education (IHEs), and other entities, to benefit from these investments, even if they are not themselves recipients of Department funds. An open licensing requirement would also allow the Department to sustain innovations beyond the grant period by encouraging subject matter experts and users to adapt, update, and build upon grant products, stimulating quality and innovation in the development of educational resources. Finally, the proposed requirement would promote equity and access to Department-funded technology and materials and increase transparency and accountability for the Department and its grantees.

[Federal Register Volume 80, Number 212 (Tuesday, November 3, 2015)]
[Proposed Rules]
[Pages 67672-67677]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-27930]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 80, No. 212 / Tuesday, November 3, 2015 / 
Proposed Rules

[[Page 67672]]



DEPARTMENT OF EDUCATION

2 CFR Part 3474

[Docket ID ED-2015-OS-0105]
RIN 1894-AA07


Open Licensing Requirement for Direct Grant Programs

AGENCY: Office of the Secretary, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations regarding the 
Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards in order to require that all Department 
grantees awarded direct competitive grant funds openly license to the 
public all copyrightable intellectual property created with Department 
grant funds.
    These proposed changes would increase the Department's ability to 
be more strategic with limited resources, broadening the impact of its 
investments by allowing stakeholders, such as local educational 
agencies (LEAs), State educational agencies (SEAs), institutions of 
higher education (IHEs), and other entities, to benefit from these 
investments, even if they are not themselves recipients of Department 
funds. An open licensing requirement would also allow the Department to 
sustain innovations beyond the grant period by encouraging subject 
matter experts and users to adapt, update, and build upon grant 
products, stimulating quality and innovation in the development of 
educational resources. Finally, the proposed requirement would promote 
equity and access to Department-funded technology and materials and 
increase transparency and accountability for the Department and its 
grantees.

DATES: We must receive your comments on or before December 3, 2015.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by email. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under the help tab at ``How To Use Regulations.gov.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about the proposed regulations, address 
them to Sharon Leu, U.S. Department of Education, 400 Maryland Avenue 
SW., Room 6W252, Washington, DC 20202-5900.
    Privacy Note: The Department's policy for comments received from 
members of the public is to make these submissions available for public 
viewing in their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information that they wish to make publicly 
available.

FOR FURTHER INFORMATION CONTACT: Sharon Leu, U.S. Department of 
Education, 400 Maryland Avenue SW., room 6W252, Washington, DC 20202. 
Telephone: (202) 453-5646 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:
    Invitation to Comment: We invite you to submit comments regarding 
these proposed regulations. To ensure that your comments have maximum 
effect in developing the final regulations, we urge you to identify 
clearly the specific section or sections of the proposed regulations 
that each of your comments addresses and to arrange your comments in 
the same order as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
proposed regulations. Please let us know of any ways we could reduce 
potential costs or increase potential benefits while preserving the 
effective and efficient administration of the Department's programs and 
activities.
    Specific Issues Open for Comment:
    In addition to your general comments, we are particularly 
interested in your feedback on the following questions:
     Should the Department require that copyrightable works be 
openly licensed prior to the end of the grant period as opposed to 
after the grant period is over? If yes, what impact would this have on 
the quality of the final product?
     Should the Department include a requirement that grantees 
distribute copyrightable works created under a direct competitive grant 
program? If yes, what suggestions do you have on how the Department 
should implement such a requirement?
     What further activities would increase public knowledge 
about the materials and resources that are created using the 
Department's grant funds and broaden their dissemination?
     What technical assistance should the Department provide to 
grantees to promote broad dissemination of their grant-funded 
intellectual property?
     What experiences do you have implementing requirements of 
open licensing policy with other Federal agencies? Please share your 
experiences with these different approaches, including lessons learned 
and recommendations that might be related to this document.

During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments, in person, in room 6W100, 400 
Maryland Avenue SW., Washington, DC, between the hours of 8:30 a.m. and 
4:00 p.m., Washington, DC time, Monday through Friday of each week 
except Federal holidays. Please contact the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for these proposed regulations. If

[[Page 67673]]

you want to schedule an appointment for this type of accommodation or 
auxiliary aid, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

Background

    The Department's regulations and policies related to copyrightable 
works created by Department grant funds have continually evolved with 
the goal of maximizing the dissemination of these works to the public.
    In regulations published in the Federal Register on April 3, 1980 
(45 FR 22494, 22550), the Department implemented a new policy that 
allowed grantees to retain unlimited rights to copyright and royalty 
income. Simultaneously, the Department retained a royalty-free, non-
exclusive, and irrevocable right to reproduce, publish, or otherwise 
use, and to authorize others to use without cost, works created with 
Department grant funds for Federal Government purposes (45 FR 22593). 
The purpose of this regulation was to create a policy that was 
conducive to disseminating grant-funded works to the public that was 
consistent with provisions in OMB Circular A-110.
    After this final rule was promulgated, the Department thereafter 
amended part 80 on March 11, 1988 (53 FR 8034, 8071), and part 74 on 
July 6, 1994 (59 FR 34722, 34733-34), to incorporate this copyright 
policy. These provisions remained in effect until 2014, when the 
Department removed parts 74 and 80 from title 34 and adopted 2 CFR part 
200 (79 FR 75871), including 200.315(b) which reflects the current 
policy. The 1988, 1994, and 2014 rulemakings did not substantively 
alter the policy.
    We believe that the wide variety of educational materials created 
through the Department's discretionary competitive grants should be 
shared more broadly with the public. Even though current policy allows 
the public to access grant-funded resources for use for Federal 
Government purposes by seeking permission from the Department, the 
public rarely requested access to these copyrighted materials, possibly 
due to administrative barriers, lack of clarity regarding the scope of 
Federal Government purposes, or lack of information about available 
products. We believe that removing barriers and clarifying usage rights 
to these products, including lesson plans, instructional plans, 
professional development tools, and other teaching and learning 
resources will benefit the Department's diverse stakeholders and will 
benefit teaching and learning. These include LEAs, SEAs, IHEs, 
students, nonprofit educational organizations, and others beyond direct 
grant recipients. The Department's goal remains to institute a policy 
that results in broadest and most effective dissemination of grant-
funded works to the public, and therefore the Department is proposing 
to modify this policy to require, with minimal exceptions, that all 
copyrightable works created under a direct competitive grant program be 
openly licensed.

Proposed Regulatory Changes

2 CFR Part 3474

Section 3474.20 Open Licensing Requirement for Direct

Competitive Grant Programs

    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  3474.20 would establish an 
open licensing requirement for copyrightable works created using funds 
from direct competitive grant programs. Section 3474.20 would require 
that all Department grantees awarded direct competitive grant funds 
openly license to the public all copyrightable intellectual property 
created with Department grant funds. This requirement would apply to 
only new copyrightable materials created with Department grant funds 
and copyrightable modifications made to pre-existing content using 
Department grant funds awarded after the effective date of the final 
regulations.
    Accordingly, the proposed open licensing requirement would not 
apply to existing grants or existing copyrightable intellectual 
property. Additionally, the proposed regulations would not apply to 
grants that provide funding for general operating expenses, grants that 
provide support to individuals (e.g., scholarships, fellowships), or 
peer-reviewed research publications that arise from scientific research 
funded, either fully or partially, from grants awarded by the Institute 
of Education Sciences (Institute) that are already covered by the 
Institute's existing public access policy, found at http://ies.ed.gov/funding/researchaccess.asp. Moreover, the Secretary would retain 
authority pursuant to 2 CFR 3474.5 and 2 CFR 200.102 to authorize 
exceptions to the open licensing requirement.
    These proposed regulations would allow the public to access and use 
copyrightable intellectual property created with direct competitive 
grant funds for any purpose, provided that the user gives attribution 
to the designated authors or copyright holders of the intellectual 
property.
    Reasons: We believe that the wide variety of educational materials 
created through the Department's direct competitive grants should be 
shared broadly with the public. These products, including lesson plans, 
instructional plans, professional development tools, and other teaching 
and learning resources provide benefit to LEAs, SEAs, IHEs, nonprofit 
educational organizations, and others beyond direct competitive grant 
recipients. Current Department practice, in combination with Federal 
grant regulations and copyright law, may present unnecessary barriers 
for the public to access these materials. Under current practice, 
Department grantees retain an ``all rights reserved copyright,'' 
allowing them to restrict reuse and redistribution of these materials, 
sometimes resulting in significant cost or administrative burden to the 
general public for their access. In addition, in general, the 
Department currently exercises its Federal purpose license in Sec.  
200.315(b) only in rare cases where a grantee fails to implement its 
copyright or prices its product at an unacceptably high cost that 
educators cannot afford to pay. While the current practice helps make 
copyrightable work created by grantees more available to educators, we 
are concerned that the policy fails to make the materials more widely 
available to all educators, regardless of their resources. For example, 
in certain instances, grant-funded materials may only be commercially 
available, requiring the public to incur additional costs for their 
use. While the Department recognizes that commercial incentives can 
often encourage the development of high-quality materials, we believe 
that the public should have access to works created under a Department 
direct competitive grant with public funds at the lowest cost possible.
    To this end, the proposed regulation under Sec.  3474.20, requires 
all Department grantees awarded direct competitive grant funds to 
openly license to the public all copyrightable intellectual property 
created with these funds. Open licensing would broaden the impact of ED 
investments, allowing LEAs, SEAs, IHEs, students, and others beyond 
direct grant recipients to benefit from the Department's investment. 
These stakeholders would have free access to and use of all materials 
produced by grantees, without needing to seek permission from the 
copyright holder to access such resource for each instance of use or to 
create derivative works. We believe this access would accelerate 
innovation and improve quality in education by enabling others to test 
and build upon Department-

[[Page 67674]]

funded work, and by stimulating a market of derivative works. In 
addition, access to technology and high-quality materials would promote 
equity and especially benefit resource-poor stakeholders.
    This requirement would also increase the Department's ability to be 
more strategic with limited resources. For example, in some cases, 
dissemination of openly licensed materials could reduce the need to 
fund multiple duplicate projects. In other cases, it could encourage 
diversity and non-duplication in the types of projects receiving 
similar funding.
    We believe that an open licensing requirement would improve the 
quality of educational resources and sustain innovations beyond the 
grant period by encouraging subject matter experts and other users to 
build upon the grant products and enriching the grant-funded content. 
We also expect that an open licensing requirement would stimulate 
innovation in the development of educational resources by encouraging 
commercial adaptation and derivatives and supporting large-scale 
adoption of grant products, even after the grant period.
    We note that nothing in the proposed regulations would require a 
grantee to distribute work that a grantee would be required to openly 
license under proposed Sec.  3474.20. In the Invitation to Comment 
section, we include specific questions to help inform us whether such a 
distribution requirement should be included in the final Sec.  3474.20; 
or, alternatively, whether we should use non-regulatory approaches such 
as technical assistance and guidance to help facilitate distribution.

Section 3474.1 Adoption of 2 CFR Part 200

    Current Regulations: Current Sec.  3474.1 adopts 2 CFR part 200 but 
specifically excludes certain provisions from 2 CFR part 200 as being 
applicable under the Department's regulations.
    Proposed Regulations: Proposed Sec.  3474.1 would include, among 
these exceptions, 2 CFR 200.315(b). However, in proposed Sec.  
3474.20(d), we have retained the Federal government's royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so, 
provided through Sec.  200.315(b).
    Reasons: We propose to except Sec.  200.315(b) from the 
Department's regulations because Sec.  200.315(b) allows a non-Federal 
entity to copyright certain work developed under a Federal award, which 
is inconsistent with our proposed open licensing requirement. In order 
to have a consistent rule for how intellectual property developed with 
the Department's direct competitive grant funds is licensed, we need to 
add Sec.  200.315(b) to the provisions within 2 CFR part 200 that are 
inapplicable under the Department's Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards regulations.
    We propose to retain the Federal government's royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so, in 
order to reserve the right to disseminate certain copyrightable 
intellectual property created with Department funds, if we determine 
that such action is the best way to make this content readily 
available. In the case of State administered or direct formula grant 
programs not covered by this proposed rule, the Department is exploring 
additional opportunities to expand dissemination of educational 
materials produced under those programs and to broaden dissemination of 
those materials to the public.
    Under some direct competitive grants, the Department funds the 
costs of general operating expenses or the costs to provide support to 
individuals such as through scholarships or fellowship programs. In 
these cases, the Department's funding covers expenditures incurred to 
engage in activities not directly associated with the production of 
products, even though products are sometimes created. The open 
licensing requirement would not apply to these grantees, though they 
are encouraged to consider whether an open license would be appropriate 
or useful.
    This open licensing requirement also does not apply to peer-
reviewed research publications that arise from scientific research 
funded, either fully or partially, from grants awarded by the Institute 
of Education Sciences, since they are already covered by the 
Institute's existing public access policy.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by the 
Office of Management and Budget (OMB). Section 3(f) of Executive Order 
12866 defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This proposed regulatory action is a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that

[[Page 67675]]

might result from technological innovation or anticipated behavioral 
changes.''
    We are issuing these proposed regulations only on a reasoned 
determination that their benefits would justify their costs. In 
choosing among alternative regulatory approaches, we selected those 
approaches that maximize net benefits. Based on the analysis that 
follows, the Department believes that these proposed regulations are 
consistent with the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those we have determined as necessary 
for administering the Department's programs and activities.

Summary of Potential Costs and Benefits

    The open licensing requirement will not impose significant costs on 
entities that receive assistance through the Department's direct 
competitive grant programs. Application, submission, and participation 
in a competitive discretionary grant program are voluntary. The costs 
of meeting the requirements will be paid for with program funds and 
therefore will not be a burden for grantees, including small entities. 
While there are no significant costs, in some limited circumstances, 
there may be some instances of lost revenue or added costs related to 
the loss of commercial benefit derived from exclusive copyrights.
    Under current regulations, grantees that create copyrightable works 
as part of a grant program retain unlimited rights to copyright and 
royalty income while the Department also retains a royalty-free, non-
exclusive, and irrevocable right to reproduce, publish, or otherwise 
use, and to authorize others to use without cost, works created with 
Department grant funds for Federal Government purposes. These rights 
are assigned to the grantee at the time of the grant award and no 
further action is necessary to designate these rights. Grantees may 
establish terms and conditions that permit use and re-use of their 
works to any member of the public, for each instance of use or for each 
created work.
    Proposed changes to the regulation would require that grantees 
openly license copyrightable works to enable the public to use the work 
without restriction, so long as they provide attribution to the grantee 
as the author of the works or the holder of the copyright and author, 
if different. While the type of license will differ depending on the 
type of work created, applying an open license to a grant product 
typically involves the addition of a brief license identification 
statement or insertion of a license icon. This could occur following 
the development of the product, at the same time that the disclaimer 
currently required under 34 CFR 75.620 is applied.
    In this context, the proposed regulations could reduce commercial 
incentives for an eligible entity to apply to participate in a 
discretionary grant program. For example, under some competitive grant 
programs, grant recipients have produced materials that were 
subsequently sold or licensed to third parties, such as publishing 
companies or others in the field. Although an open license does not 
preclude the grantee or any individual from developing commercial 
products and derivatives from the grant funded material, it does remove 
the competitive advantage that these grantees currently possess as the 
exclusive copyright holder. In addition, publishers and other third 
parties may incur loss of revenue since their commercial product will 
potentially compete with freely available versions of a similar 
product. We note, however, that based on the Department's program 
offices' past grantmaking experiences, relatively few grantees develop 
and market copyrighted content paid for with Department funds.
    However, the proposed regulations would result in significant 
benefits. The proposed policy would increase the Department's ability 
to be strategic with limited resources, encouraging diversity and non-
duplication in the types of projects that receive funding. By 
encouraging subject matter experts and other users to build upon the 
grant products and enrich and update the content, this proposed 
regulation would ensure the quality and long-term sustainability of 
innovations created through grant funds.
    The proposed regulations would also broaden the impact of the 
Department's investments, enabling broader and more effective 
dissemination of grant-funded works to the public. Department 
stakeholders, such as LEAs, SEAs, IHEs, students, and others beyond 
direct grant recipients would be able to freely use and access the 
technology and high-quality materials, promoting equity and especially 
benefiting resource-poor stakeholders.
    For example, the Department's First in the World grant program 
currently requires grantees to openly license intellectual property. 
The online remediation tool being created by the Southern New Hampshire 
University under this grant program will help underprepared, 
underrepresented, and low-income working adults obtain a postsecondary 
credential and reduce the time to degree completion. Under the terms of 
the grant, the open license will allow any other IHE or adult education 
provider to use this tool to serve the working adults in its service 
areas, without incurring costs or duplicating efforts of development.
    Under the proposed open licensing requirement, stakeholders will be 
able to more easily access resources that are created by the many other 
competitive discretionary grant programs at the Department. For 
example, the Department grantees have created educational materials, 
assessments, and technical assistance that support the needs of various 
special populations. These include grants by the Department's Office of 
Special Education Programs (OSEP) to create resources that support 
children, youth, and adults with disabilities. An open license would 
give broad permission for any member of the public to use, adapt, and 
widely redistribute the assistive technologies, resources for building 
inclusive communities, and training materials for specialized service 
personnel to the address particular needs of their own school or 
community, without the additional administrative burden of seeking 
permission from the grantee or copyright holder. Similarly, some grants 
by the Department's Office of Elementary and Secondary Education (OESE) 
support innovative approaches to literacy to promote reading skills. An 
open license on those professional development tools and reading 
resources would allow stakeholders and other members of the public to 
access and share resources to address the needs of the public beyond 
those known to the grantee or copyright holder.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:

[[Page 67676]]

     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with its clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  3474.20 Open Licensing Requirement for Direct Competitive Grant 
Programs.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section.

Initial Regulatory Flexibility Act Analysis

    This Initial Regulatory Flexibility Analysis presents an estimate 
of the effect on small entities of the proposed regulations. The U.S. 
Small Business Administration Size Standards define ``for-profit 
institutions'' as ``small businesses'' if they are independently owned 
and operated and not dominant in their field of operation with total 
annual revenue below $7,000,000, and defines ``non-profit 
institutions'' as small organizations if they are independently owned 
and operated and not dominant in their field of operation, or as small 
entities if they are institutions controlled by governmental entities 
with populations below 50,000. The Secretary certifies that these 
proposed regulations would not have a significant economic impact on a 
substantial number of small entities. We recognize that the proposed 
rule would eliminate the ability for a grantee to sell copyrighted 
content developed using the Department's funds. However, we do not 
believe many grantees would experience this potential loss of income, 
in part because relatively few grantees develop and market copyrighted 
content paid for with Department funds and in part because a grantee 
could still sell its openly licensed content under the proposed 
regulation. Additionally, there are other avenues of funding outside of 
the Department that can be pursued if a small entity is focused on 
profiting from the educational tools and resources it develops. Lastly, 
we believe that small entities as a whole may realize significant 
benefits from access to a vast array of openly licensed educational 
tools and resources under the proposed open-licensing rule. However, 
the Department acknowledges that it is difficult to quantify the impact 
of this proposed regulation on small entities and, therefore, the 
Secretary invites comments from such entities as to whether they 
believe the proposed changes would have a significant economic impact 
on them and, if so, requests evidence to support that belief.

Paperwork Reduction Act of 1995

    These proposed regulations do not contain any information 
collection requirements.

Intergovernmental Review

    These proposed regulations affect direct grant programs of the 
Department that are subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of our specific plans and 
actions for these programs.

Assessment of Educational Impact

    In accordance with section 411 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether these proposed regulations would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.thefederalregister.org/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects in 2 CFR Part 3474

    Accounting, Administrative practice and procedure, Adult education, 
Aged, Agriculture, American Samoa, Bilingual education, Blind, Business 
and industry, Civil rights, Colleges and universities, Communications, 
Community development, Community facilities, Copyright, Credit, 
Cultural exchange programs, Educational facilities, Educational 
research, Education, Education of disadvantaged, Education of 
individuals with disabilities, Educational study programs, Electric 
power, Electric power rates, Electric utilities, Elementary and 
secondary education, Energy conservation, Equal educational 
opportunity, Federally affected areas, Government contracts, Grant 
programs, Grant programs--agriculture, Grant programs--business and 
industry, Grant programs--communications, Grant programs--education, 
Grant programs--energy, Grant programs--health, Grant programs--housing 
and community development, Grant programs--social programs, Grant 
administration, Guam, Home improvement, Homeless, Hospitals, Housing, 
Human research subjects, Indians, Indians--education, Infants and 
children, Insurance, Intergovernmental relations, International 
organizations, Inventions and patents, Loan programs, Loan programs 
social programs, Loan programs--agriculture, Loan programs--business 
and industry, Loan programs--communications, Loan programs--energy, 
Loan programs--health, Loan programs--housing and community 
development, Manpower training programs, Migrant labor, Mortgage 
insurance, Nonprofit organizations, Northern Mariana Islands, Pacific 
Islands Trust Territories, Privacy, Renewable Energy, Reporting and 
recordkeeping requirements, Rural areas, Scholarships and fellowships, 
School construction, Schools, Science and technology, Securities, Small 
businesses, State and local governments, Student aid, Teachers, 
Telecommunications, Telephone, Urban areas, Veterans, Virgin Islands, 
Vocational education, Vocational rehabilitation, Waste treatment and

[[Page 67677]]

disposal, Water pollution control, Water resources, Water supply, 
Watersheds, Women.

    Dated: October 28, 2015.
 Arne Duncan,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary proposes 
to amend part 3474 of title 2 of the Code of Federal Regulations as 
follows:

PART 3474--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, 
AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS.

0
1. The authority citation for part 3474 continues to read as follows:

    Authority:  20 U.S.C. 1221e-3, 3474, and 2 CFR part 200, unless 
otherwise noted.


Sec.  3474.1  [Amended]

0
2. Section 3474.1(a) is amended by removing ``2 CFR 200.102(a) and 2 
CFR 200.207(a)'' and adding, in its place, ``2 CFR 200.102(a), 
200.207(a), and 200.315(b)''.
0
3. Add Sec.  3474.20 to read as follows:


Sec.  3474.20   Open licensing requirement for direct competitive grant 
programs.

    For direct competitive grants awarded after [EFFECTIVE DATE OF THE 
FINAL REGULATIONS]:
    (a) A grantee that is awarded direct competitive grant funds must 
openly license to the public new copyrightable materials created in 
whole, or in part, with Department grant funds and copyrightable 
modifications made to pre-existing content using Department grant 
funds, except as provided in paragraph (c) of this section. The license 
must be worldwide, non-exclusive, royalty-free, perpetual, and 
irrevocable, and must grant the public permission to access, reproduce, 
publicly perform, publicly display, adapt, distribute, and otherwise 
use, for any purposes, copyrightable intellectual property created with 
direct competitive grant funds, provided that the licensee gives 
attribution to the designated authors of the intellectual property. The 
licensee must also include the statement of attribution and disclaimer 
in 34 CFR 75.620(b).
    (b) Except as provided in paragraph (c) of this section, a grantee 
that is awarded direct competitive grant funds must openly license all 
computer software source code developed or created with these grant 
funds under an intellectual property license that allows the public to 
freely use and build upon computer source code created or developed 
with these grant funds.
    (c) The requirements of paragraphs (a) and (b) of this section do 
not apply to--
    (1) Grants that provide funding for general operating expenses;
    (2) Grants that provide support to individuals (e.g., scholarships, 
fellowships); or
    (3) Peer-reviewed research publications that arise from scientific 
research funded, either fully or partially, from grants awarded by the 
Institute of Education Sciences that are already covered by the 
Institute's public access policy found at http://ies.ed.gov/funding/researchaccess.asp.
    (d) The Department reserves a royalty-free, nonexclusive and 
irrevocable right to reproduce, publish, or otherwise use the work for 
Federal purposes, and to authorize others to do so.

[FR Doc. 2015-27930 Filed 10-29-15; 11:15 am]
 BILLING CODE 4000-01-P