Rule2023-12020
Defense Federal Acquisition Regulation Supplement: Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region (DFARS Case 2023-D015)
Primary source
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Published
June 9, 2023
Effective
June 9, 2023
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2023 that prohibits the use of funds to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from the Xinjiang Uyghur Autonomous Region.
Full Text
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<title>Federal Register, Volume 88 Issue 111 (Friday, June 9, 2023)</title>
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[Federal Register Volume 88, Number 111 (Friday, June 9, 2023)]
[Rules and Regulations]
[Pages 37794-37798]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12020]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
[Docket DARS-2023-0022]
RIN 0750-AL88
Defense Federal Acquisition Regulation Supplement: Prohibition on
Certain Procurements From the Xinjiang Uyghur Autonomous Region (DFARS
Case 2023-D015)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
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SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act for Fiscal Year 2023 that prohibits
the use of funds to knowingly procure any products mined, produced, or
manufactured wholly or in part by forced labor from the Xinjiang Uyghur
Autonomous Region.
DATES: Effective June 9, 2023.
Comment due date: Comments on the interim rule should be submitted
in writing to the address shown below on or before August 8, 2023, to
be considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2023-D015 using any
of the following methods:
[cir] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Search for DFARS Case 2023-D015. Select ``Comment'' and follow the
instructions to submit a comment. Please include your name, company
name (if any), and ``DFARS Case 2023-D015'' on any attached documents.
[cir] Email: <a href="/cdn-cgi/l/email-protection#315e42551f5557504342715c50585d1f5c585d"><span class="__cf_email__" data-cfemail="8fe0fceba1ebe9eefdfccfe2eee6e3a1e2e6e3">[email protected]</span></a>. Include DFARS Case 2023-D015 in
the subject line of the message.
Comments received generally will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. To confirm receipt of your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Kimberly Bass, telephone 703-717-3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register at 87 FR
76980 on December 16, 2022, to implement section 848 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) FY 2022 (Pub. L.
117-81). This interim rule implements section 855 of the NDAA for FY
2023 (Pub. L. 117-263), which repeals section 848 of the NDAA for FY
2022, including the requirement for a certification from offerors for
contracts with DoD stating the offeror has made a good faith effort to
determine that forced labor from Xinjiang Uyghur Autonomous Region of
the People's Republic of China (XUAR) was not or will not be used in
the performance of a contract.
Section 855 adds 10 U.S.C. 4661, which prohibits the use of DoD
funds for any fiscal year to be obligated or expended to knowingly
procure any products mined, produced, or manufactured wholly or in part
by forced labor from XUAR. Section 855 also requires offerors or
awardees of a DoD contract to make a good faith effort to determine
that forced labor from XUAR will not be used in the performance of a
DoD contract. This interim rule requires offerors to represent, by
submission of an offer, that they have made, and requires contractors
to make, a good faith effort to determine that forced labor from XUAR
will not be used in the performance of a DoD contract. The term
``forced labor'' is revised and is defined, along with ``XUAR'' at 10
U.S.C. 2496 (see section 651 of the NDAA for FY 2023). The definition
of ``person'' is removed in its entirety.
II. Discussion and Analysis
Two respondents submitted public comments in response to the
interim rule published at 87 FR 76980 on December 16, 2022. DoD
reviewed the public comments in the development of this interim rule. A
discussion of those comments and the changes made to the rule as a
result of those comments is provided as follows:
[[Page 37795]]
A. Summary of Significant Changes From the Interim Rule
DoD made the following changes in this interim rule:
1. At DFARS 225.7022-1, revised the reference to implementation of
section 855 of the NDAA for FY 2023 and 10 U.S.C. 4661 with conforming
revisions throughout.
2. For consistency with the requirements of section 855 of the NDAA
for FY 2023, at DFARS 225.7022-2 the definition of ``forced labor'' was
revised to align with 10 U.S.C. 2496, with conforming changes
throughout. The term ``XUAR'' is also defined at 10 U.S.C. 2496, and
the cross-reference is added to the definition. References to the
definition of ``person'' are removed for consistency with the repeal of
section 848 of the NDAA for FY 2022 and the revised statutory
requirement in section 855 of the NDAA for FY 2023.
3. The certification requirement for offerors is replaced with a
representation.
B. Analysis of Public Comments
1. Strong Support for the Rule
Comment: A respondent strongly supported the interim rule. The
respondent noted that this prohibition on the purchase of products from
the Xinjiang Uyghur Autonomous Region is an important step in
preserving the United States as the leader of the free world and
protects our national security.
Response: DoD acknowledges the support for the rule.
2. Scope of the Prohibition
Comment: A respondent commented the scope and applicability of the
rule should be clarified. The respondent questioned the applicability
to products, or if the use of tools that could have been made of parts
made with forced labor from XUAR, are to also be covered by the
prohibition.
Response: The rule implements section 855 of the NDAA for FY 2023.
Product, as defined at Federal Acquisition Regulation (FAR) 2.101,
Definitions, has the same meaning as ``supplies''. The FAR definition
of ``supplies'' means all property except land or interest in land. It
includes (but is not limited to) public works, buildings, and
facilities; ships, floating equipment, and vessels of every character,
type, and description, together with parts and accessories; aircraft
and aircraft parts, accessories, and equipment; machine tools; and the
alteration or installation of any of the foregoing. In accordance with
the FAR definition of ``product'' the scope of the prohibition will
include any products mined, produced, or manufactured wholly or in part
by forced labor from XUAR or from any entity that has used labor from
within or transferred from XUAR made with forced labor.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold, for Commercial Services, and for Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
This DFARS rule implements section 855 of the NDAA for FY 2023.
Section 855 prohibits the use of DoD funds for any fiscal year to
knowingly procure any products mined, produced, or manufactured wholly
or in part by forced labor from XUAR and requires offerors or awardees
of DoD contracts to make a good faith effort to determine that forced
labor from XUAR will not be used in the performance of a DoD contract.
This rule amends the solicitation provision at DFARS 252.225-7059,
Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous
Region-Representation, and the contract clause at DFARS 252.225-7060,
Prohibition on Certain Procurements from the Xinjiang Uyghur Autonomous
Region. The clause at DFARS 252.225-7060 is prescribed for use in
solicitations and contracts utilizing funds appropriated or otherwise
made available for any fiscal year, including solicitations using FAR
part 12 procedures for the acquisition of commercial services and
commercial products including COTS items. DoD made the determination to
apply the rule to contracts valued at or below the simplified
acquisition threshold (SAT) and to the acquisition of commercial
services and commercial products, including COTS items, as defined at
FAR 2.101.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to such contracts or subcontracts. 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 and Contracting, 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.
B. Applicability to Contracts for the Acquisition of Commercial
Services and Commercial Products, Including COTS Items.
10 U.S.C. 3452 exempts contracts and subcontracts for the
acquisition of commercial services and commercial products (including
COTS items) from provisions of law enacted after October 13, 1994,
that, as determined by the Under Secretary of Defense for Acquisition
and Sustainment (USD(A&S)), set forth policies, procedures,
requirements, or restrictions for the acquisition of property or
services unless--
The provision of law--
--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
services and commercial products (including COTS items); or USD(A&S)
determines in writing that it would not be in the best interest of the
Government to exempt contracts or subcontracts for the acquisition of
commercial products and services from the applicability of the
provision. This authority has been delegated to the Principal Director,
Defense Pricing and Contracting.
C. Determinations
Section 855 is silent on applicability to contracts and
subcontracts in amounts at or below the SAT or for the acquisition of
commercial products and commercial services. Also, the statute does not
provide for civil or criminal penalties. Therefore, it does not apply
to the acquisition of contracts or subcontracts in amounts not greater
than the SAT or the acquisition of commercial services and commercial
products (including COTS items), unless the Principal Director, Defense
Pricing and Contracting, makes a written determination as provided for
in 41 U.S.C. 1905 and 10 U.S.C. 3452.
The solicitation provision and contract clause provided are
necessary to implement the statutory restrictions and to protect the
contracting officer from violating the prohibition on the use of funds
to knowingly procure any products mined, produced, or
[[Page 37796]]
manufactured wholly or in part by forced labor from XUAR or from an
entity that has used labor from within or transferred from XUAR as part
of a forced labor program.
If the solicitation provision and contract clause are not included
in solicitations and contracts valued at or below the SAT and for the
acquisition of commercial services and commercial products (including
COTS items), it becomes more likely that a contracting officer could
procure a prohibited product, thereby undermining the overarching
public policy purpose of the law. Subjecting FAR part 13 simplified
acquisitions to section 855 will not impact simplified acquisitions
conducted through the use of the Governmentwide commercial purchase
card or the SF 44, as these acquisitions are excepted from section 855.
An exception for contracts for the acquisition of commercial
services and commercial products, including COTS items, would exclude
some high dollar value contracts, thereby undermining the overarching
public policy purpose of the law. However, the prohibition in section
855 covers only ``knowingly'' procuring covered items. It would be
unreasonable to expect the parties to a procurement through the use of
the Governmentwide commercial purchase card or the SF 44 to know
whether the commercial products or commercial services being procured
are mined, produced, or manufactured wholly or in part by forced labor
from XUAR or from an entity that has used labor from within or
transferred from XUAR as part of a forced labor program.
Based on the findings above, it would not be in the best interest
of the United States to exempt acquisitions not greater than the SAT
(except for purchases made regardless of dollar value through the use
of the Governmentwide commercial purchase card or the SF 44) and
acquisitions of commercial services or commercial products, including
COTS items, from the applicability of section 855 of the NDAA for FY
2023.
IV. 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 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, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
DoD does not expect this interim rule 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 replaces a burdensome certification requirement with a
representation requirement. However, an initial regulatory flexibility
analysis has been performed and is summarized as follows:
DoD is amending the DFARS to implement section 855 of the National
Defense Authorization act (NDAA) for Fiscal Year (FY) 2023 (Pub. L.
117-263). Section 855 prohibits the use of DoD funds for any fiscal
year to knowingly procure any products mined, produced, or manufactured
wholly or in part by forced labor from the Xinjiang Uyghur Autonomous
Region of the People's Republic of China (XUAR). Section 855 requires
offerors or awardees of a DoD contract to make a good faith effort to
determine that forced labor from XUAR will not be used in the
performance of a DoD contract. In addition, section 855 repeals section
848 of the NDAA for FY 2022 (Pub. L. 117-81), which required a
certification from offerors that they had made a good faith effort to
determine that forced labor from XUAR was not or will not be used in
the performance of a DoD contract.
The objective of the rule is to implement the prohibition and the
requirement for offerors or contractors to make a good faith effort to
determine that forced labor from XUAR will not be used in the
performance of a DoD contract. The rule revises the solicitation
provision at DFARS 252.225-7059, Prohibition on Certain Procurements
from the Xinjiang Uyghur Autonomous Region--Representation, to remove
the certification requirement and include a representation requirement.
The legal basis for this rule is section 855 of the NDAA for FY 2023.
DoD reviewed data obtained from the Federal Procurement Data System
for FY 2020, 2021, and 2022 for DoD purchases of supplies or end
products valued above the micro-purchase threshold, including
commercial products and commercially available off-the-shelf items. DoD
made an average of 374,735 awards to 16,122 unique entities, of which
154,515 awards were made to 12,187 unique small entities. In addition
to the small entities that received awards, DoD estimates there were
approximately 621,718 unsuccessful offerors. Note that the unsuccessful
offerors are not unique entities; in other words, a single entity may
have been counted more than once as an unsuccessful offeror. The rule
will apply to successful offerors that receive awards and unsuccessful
offerors.
The solicitation provision at DFARS 252.225-7059, Prohibition on
Certain Procurements from the Xinjiang Uyghur Autonomous Region--
Representation, requires offerors to represent, by submission of an
offer, that the offeror has made a good faith effort to determine that
forced labor from XUAR will not be used in the performance of a
contract resulting from a solicitation containing the provision. Small
entities that sell products to DoD will be subject to this requirement
when they submit offers for DoD contracts. The rule does not require
any other reporting or recordkeeping.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
The section 855 prohibition will not apply to purchases under the
micro-purchase threshold made using the Governmentwide commercial
purchase card or to purchases using the SF 44, Purchase Order-Invoice-
Voucher (see DFARS 213.306). DoD was unable to identify any other
alternatives that would reduce burden on small businesses and still
meet the objectives of the statute. Moreover, this interim rule removes
the certification requirement that was required by section 848 of the
NDAA for FY 2022, thereby removing the associated burden.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5
[[Page 37797]]
U.S.C 610 (DFARS Case 2023-D015), in correspondence.
VII. Paperwork Reduction Act
This rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget (OMB)
under the Paperwork Reduction Act (44 U.S.C. chapter 35). OMB, under
the prior interim rule for DFARS Case 2022-D008 that is superseded by
this interim rule, assigned OMB Control Number 0750-0007, Prohibition
on Certain Procurements from the Xinjiang Uyghur Autonomous Region--
Certification; DFARS Provision 252.225-70UU. Upon publication of this
interim rule and removal of the certification reporting requirement,
OMB Control Number 0750-0007 will be canceled, as it is no longer
required.
VIII. Determination To Issue an Immediately Effective Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to promulgate this
interim rule effective immediately without prior opportunity for public
comment (41 U.S.C. 1707(d)). This action is necessary to implement
section 855 of the National Defense Authorization Act for Fiscal Year
2023 (Pub. L. 117-263; 10 U.S.C. 4661). Section 855 repeals section 848
of the NDAA for FY 2022 (Pub. L. 117-81), including the requirement to
obtain a certification from offerors for contracts with DoD stating the
offeror has made a good faith effort to determine that forced labor
from XUAR was not or will not be used in the performance of a contract.
Section 855 prohibits the use of funds to knowingly procure any
products mined, produced, or manufactured wholly or in part by forced
labor from XUAR or from any entity that has used forced labor from
within or transferred from XUAR as part of any forced labor program,
thereby extending the prohibition initiated under section 848 of the
NDAA for FY 2022. The section 855 prohibition requires the offeror to
make a good faith effort to determine that forced labor from XUAR was
not or will not be used in the performance of a contract.
This interim rule must be effective immediately, in the interest of
avoiding further genocide in XUAR (see the Joint Explanatory Statement
To Accompany the National Defense Authorization Act for Fiscal Year
2022), to mitigate the risks associated with procuring products
produced or manufactured using forced labor from XUAR, and to ensure
contracting officers comply with the new statutory requirements in
section 855. Public Law 117-263 containing section 855 was enacted on
December 23, 2022, and section 855 is effective not later than 180 days
after the date of the enactment, or June 21, 2023.
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 212, 225, 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
0
2. Amend section 212.301 by revising paragraphs (f)(ix)(KK) and (LL) to
read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
(f) * * *
(ix) * * *
(KK) Use the provision at 252.225-7059, Prohibition on Certain
Procurements from the Xinjiang Uyghur Autonomous Region--
Representation, as prescribed in 225.7022-5(a), to comply with section
855 of the National Defense Authorization Act for Fiscal Year 2023
(Pub. L. 117-263) and 10 U.S.C. 4661.
(LL) Use the clause at 252.225-7060, Prohibition on Certain
Procurements from the Xinjiang Uyghur Autonomous Region, as prescribed
in 225.7022-5(b), to comply with section 855 of the National Defense
Authorization Act for Fiscal Year 2023 (Pub. L. 117-263) and 10 U.S.C.
4661.
* * * * *
PART 225--FOREIGN ACQUISITION
0
3. Revise section 225.7022-1 to read as follows:
225.7022-1 Scope.
This section implements section 855 of the National Defense
Authorization Act for Fiscal Year 2023 (Pub. L. 117-263) and 10 U.S.C.
4661.
0
4. Revise section 225.7022-2 to read as follows:
225.7022-2 Definitions.
As used in this section--
Forced labor means any work or service that is exacted from any
person under the menace of any penalty for nonperformance and that the
worker does not offer to perform (10 U.S.C. 2496).
XUAR means the Xinjiang Uyghur Autonomous Region of the People's
Republic of China (10 U.S.C. 2496).
225.7022-3 [Amended]
0
5. Amend section 225.7022-3 by removing ``for fiscal year 2022'' and
adding ``for any fiscal year'' in its place.
225.7022-5 [Amended]
0
6. Amend section 225.7022-5--
0
a. In paragraph (a) by--
0
i. Removing ``Certification'' and adding ``Representation'' in its
place; and
0
ii. Removing ``commercial products and commercial services and COTS
items'' and adding ``commercial products, commercial services, and COTS
items'' in its place; and
0
b. In paragraph (b) by--
0
i. Removing ``for fiscal year 2022'' and adding ``for any fiscal year''
in its place; and
0
ii. Removing ``commercial products and commercial services and COTS
items'' and adding ``commercial products, commercial services, and COTS
items'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
7. Amend section 252.225-7059--
0
a. By revising the clause heading, title, and date;
0
b. In paragraph (a) by removing ``, person,''; and
0
c. By revising paragraph (c).
The revisions read as follows:
252.225-7059 Prohibition on Certain Procurements from the Xinjiang
Uyghur Autonomous Region-Representation.
* * * * *
Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous
Region--Representation (Jun 2023)
* * * * *
(c) Representation. By submission of its offer, the Offeror
represents that it has made a good faith effort to determine that
forced labor from XUAR will not be used in the performance of a
contract resulting from this solicitation.
0
8. Amend section 252.225-7060:
0
a. By revising the clause date;
0
b. By revising paragraphs (a) and (b); and
0
d. In paragraph (c), by removing ``commercial products, commercially
[[Page 37798]]
available off-the-shelf items, and commercial services'' and adding
``commercial products, commercial services, and commercially available
off-the-shelf items'' in its place.
The revisions read as follows:
252.225-7060 Prohibition on Certain Procurements from the Xinjiang
Uyghur Autonomous Region.
* * * * *
Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous
Region (Jun 2023)
(a) Definitions. As used in this clause--
Forced labor means any work or service that is exacted from any
person under the menace of any penalty for nonperformance and that the
worker does not offer to perform (10 U.S.C. 2496).
XUAR means the Xinjiang Uyghur Autonomous Region of the People's
Republic of China (10 U.S.C. 2496).
(b) Prohibition. In accordance with 10 U.S.C. 4661, none of the
funds appropriated or otherwise made available for DoD may be used to
knowingly procure any products mined, produced, or manufactured wholly
or in part by forced labor from XUAR or from an entity that has used
labor from within or transferred from XUAR. The Contractor shall make a
good faith effort to determine that forced labor from XUAR will not be
used in the performance of this contract (section 855, Pub. L. 117-
263).
* * * * *
[FR Doc. 2023-12020 Filed 6-8-23; 8:45 am]
BILLING CODE 5001-06-P
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