Federal Acquisition Regulation: Protecting Life in Global Health Assistance, 56549-56557 [2020-17551]

Download as PDF Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules The U.S. Nuclear Regulatory Commission (NRC) is making preliminary proposed rule language for the Alternative Physical Security Requirements for Advanced Reactors rulemaking available to the public. The NRC is not requesting public comment at this time; however, the public will have an opportunity to provide comment when the proposed rule is published in the future. DATES: The preliminary proposed rule language is available on September 14, 2020. ADDRESSES: Please refer to Docket ID NRC–2017–0227 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods: • Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC–2017–0227. Address questions about NRC docket IDs to Carol Gallagher; telephone: 301–415–3463; email: Carol.Gallagher@nrc.gov. For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/ adams.html. To begin the search, select ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact the NRC’s Public Document Room (PDR) reference staff at 1–800–397–4209, 301– 415–4737, or by email to pdr.resource@ nrc.gov. The preliminary proposed rule language is available in ADAMS under Accession No. ML20182A157. • Attention: The Public Document Room (PDR), where you may examine and order copies of public documents is currently closed. You may submit your request to the PDR via email at PDR.Resource@nrc.gov or call 1–800– 397–4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Andrukat, Office of Nuclear Material Safety and Safeguards, telephone: 301–415–3561, email: Dennis.Andrukat@nrc.gov; or Nanette Valliere, Office of Nuclear Reactor Regulation, telephone: 301–415–8462, email: Nanette.Valliere@nrc.gov. Both are staff of the U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001. SUPPLEMENTARY INFORMATION: The preliminary proposed rule language has khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 been revised from the version provided in support of an April 22, 2020 public meeting. The revisions address NRC consideration of public comments received during and after the April 22, 2020, public meeting. The preliminary proposed rule language is available in ADAMS under Accession No. ML20182A157. For more information, see the public meeting summary at ADAMS Accession No. ML20189A274. The NRC is not requesting public comment at this time; however, the public will have an opportunity to provide comment when the proposed rule is published in the Federal Register in the future. Dated September 3, 2020. For the Nuclear Regulatory Commission. Ho K. Nieh, Director, Office of Nuclear Reactor Regulation. 56549 pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission. Subject: Proposed Changes in the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields; Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies; Targeted Changes to the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields, FCC 19–126, published 85 FR 18131, April 01, 2020 in ET Docket Nos. 03–137 (Terminated), 13–84 (Terminated), and 19–226. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g). Number of Petitions Filed: 1. [FR Doc. 2020–19907 Filed 9–11–20; 8:45 am] Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary. BILLING CODE 7590–01–P [FR Doc. 2020–16883 Filed 9–11–20; 8:45 am] BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 2 [ET Docket No. 03–137, 13–84 and 19–226; Report No. 3155; FRS 16970] Petitions for Reconsideration of Action in Proceedings Federal Communications Commission. ACTION: Petitions for Reconsideration. AGENCY: Petitions for Reconsideration (Petitions) have been filed in the Commission’s proceeding by Donald J. Evans, on behalf of National Spectrum Manager’s Association. DATES: Oppositions to the Petitions must be filed on or before September 29, 2020. Replies to an opposition must be filed on or before October 9, 2020. ADDRESSES: Federal Communications Commission, 445 12th Street SW, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Martin Doczkat, (202) 418–2435, Office of Engineering and Technology, Chief of Electromagnetic Compatibility Division, (202) 418–0636. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s document, Report No. 3155, released July 27, 2020. Petitions may be accessed online via the Commission’s Electronic Comment Filing System at: http:// apps.fcc.gov/ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 7, 25, 44, and 52 [FAR Case 2018–002; Docket No. FAR Case 2018–0051, Sequence No. 1] RIN 9000–AN62 SUMMARY: PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 Federal Acquisition Regulation: Protecting Life in Global Health Assistance Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. AGENCY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement the Protecting Life in Global Health Assistance policy in connection with the Presidential Memorandum regarding ‘‘The Mexico City Policy,’’ dated January 23, 2017. DATES: Interested parties should submit written comments at the address shown below on or before November 13, 2020 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to FAR Case 2018–002 to Regulations.gov: http:// www.regulations.gov. Submit comments SUMMARY: E:\FR\FM\14SEP1.SGM 14SEP1 56550 Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules via the Federal eRulemaking portal by searching for ‘‘FAR Case 2018–002’’. Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2018– 002’’. Follow the instructions provided at the ‘‘Comment Now’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2018–002’’ on your attached document. If your comment cannot be submitted using https:// www.regulations.gov, call or email the points of contact in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Instructions: Please submit comments only and cite ‘‘FAR case 2018–002’’ in all correspondence related to this case. Comments received generally will be posted without change to http:// www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting. FOR FURTHER INFORMATION CONTACT: Farpolicy@gsa.gov or call 202–969– 4075. Please cite ‘‘FAR Case 2018–002’’. SUPPLEMENTARY INFORMATION: khammond on DSKJM1Z7X2PROD with PROPOSALS I. Background and Authority A. Background DoD, GSA, and NASA are proposing to revise the FAR to implement the Presidential Memorandum regarding ‘‘The Mexico City Policy’’, issued on January 23, 2017. This Presidential Memorandum reinstated the 2001 Presidential Memorandum on the ‘‘Mexico City Policy,’’ and directed the Secretary of State, in coordination with the Secretary of Health and Human Services, to implement a plan to extend the requirements of the Mexico City Policy to ‘‘global health assistance furnished by all departments or agencies’’ to the extent allowable by law. The Mexico City Policy was first issued by President Reagan in 1984 and required foreign nongovernmental organizations (NGOs) to agree, as a condition of receiving U.S. Agency for International Development (USAID) family planning assistance, not to perform or actively promote abortion as a method of family planning with any source of funds. Under the Mexico City Policy, U.S. NGOs did not themselves have to agree that they would not perform or actively promote abortion as a method of family planning, but they were required to flow down the policy’s requirements to foreign NGOs receiving family planning assistance under their awards. The Mexico City Policy was rescinded by President Clinton in 1993, VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 reinstated by President Bush in 2001, and rescinded by President Obama in 2009. When in effect previously, the Mexico City Policy’s requirements only applied to USAID family planning assistance and, from 2003–2009, to certain State Department activities; and it only applied to Federal assistance and not contracts. To extend the Mexico City Policy as directed under the January 23, 2017, Presidential Memorandum, the Secretary of State approved on May 9, 2017, a plan to implement the manner in which U.S. Government Departments and Agencies will apply the provisions of the Mexico City Policy to foreign NGOs that receive U.S. funding for global health assistance. The plan, called ‘‘Protecting Life in Global Health Assistance’’ (PLGHA), expanded the application of the Mexico City Policy in three respects, to the extent allowable by law. First, it extended the policy to all affected Federal agencies. Second, it extended the policy to all global health assistance. Third, it required the extension of the policy to contracts in addition to Federal assistance. Each of these points is addressed further below. The PLGHA policy applies to foreign NGOs (including contractors); U.S. entities are not subject to the specific policy requirement not to perform or actively promote abortion as a method of family planning with any source of funds, but they must agree to flow down the policy requirements to foreign NGOs in accordance with the terms and conditions of their contracts. 1. Affected Federal Agencies The PLGHA policy applies to all Federal agencies receiving global health assistance funding, including USAID, the State Department, the Department of Health and Human Services (HHS), and the DoD. To the extent other Federal agencies receive global health assistance funding through interagency transfer, they may also be required to apply the PLGHA terms in contracts with such funding, in accordance with FAR subparts 17.5 or 17.7. 2. Affected Global Health Assistance The PLGHA policy applies to ‘‘global health assistance’’. This includes funding for international health programs, such as for Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome; maternal and child health; nutrition; infectious diseases, including malaria and tuberculosis; global health security; and voluntary family planning and reproductive health. More information about the scope of ‘‘global health assistance’’ is set forth below under ‘‘II. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 Discussion and Analysis—Applicability of the PLGHA Policy.’’ 3. Affected Awards The State Department’s PLGHA implementation plan called for affected Federal agencies to take steps to apply the policy to Federal assistance (grants and cooperative agreements) and contracts. The PLGHA policy does not apply to global health assistance to foreign national or local governments, public international organizations and other multilateral entities in which sovereign nations participate. For Federal assistance, affected Federal agencies developed a PLGHA standard provision, which they have included, starting in May 2017, in all new Federal assistance awards that use global health assistance funding and existing awards when amended to add new funding for global health assistance. For contracts, this rule proposes to include a new clause entitled ‘‘Protecting Life in Global Health Assistance’’ in applicable contracts and subcontracts funded partially or wholly with global health assistance funding. The PLGHA implementation plan directs Federal agencies to take appropriate steps to apply the policy to new contracts; the plan would also apply to existing contracts, to the extent practicable, when modified to add funding. 4. Purpose The PLGHA policy is consistent with the Presidential directive in the Presidential Memorandum—that no U.S. taxpayer money should support foreign organizations that perform or actively promote abortion as a method of family planning in other nations. Affected Federal agencies provide significant global health assistance funding through contracts each year. It is critical that such funding is also subject to the PLGHA terms and conditions to effect the President’s directive. All foreign contractors will be eligible to receive global health assistance funding if they agree to abide by the terms of the PLGHA policy in their contract or subcontract. PLGHA does not reduce the amount of global health assistance funding the United States Government makes available. The United States remains strongly committed to supporting health programs around the world. 5. More Information More information about the 2017 Presidential Memorandum and the E:\FR\FM\14SEP1.SGM 14SEP1 Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules PLGHA policy is available in the following: • Presidential Memorandum on the Mexico City Policy (82 FR 8495, January 23, 2017). • U.S. Agency for International Development’s (USAID) website at https://www.usaid.gov/global-health/ legislative-policy-requirements. B. Authority The President has broad discretion to set the terms and conditions on which the United States provides foreign assistance. The United States provides global health assistance through various Federal agencies, under the authorities granted to those Federal agencies, including the Foreign Assistance Act (FAA) (22 U.S.C. 2151 et seq.). The State Department and USAID, as well as other Federal agencies that receive foreign assistance funds from the State Department and USAID, rely on the authorities under the FAA. Under the FAA, the President is authorized to furnish foreign assistance for voluntary population planning, health programs, and to promote economic or political stability ‘‘on such terms and conditions as [the President] may determine.’’ See, e.g., section 104(b) of the FAA (22 U.S.C. 2151b(b)) (assistance for family planning and population growth); section 104(c)(1) of the FAA (22 U.S.C. 2151b(c)(1)) (health assistance); section 531 of the FAA (22 U.S.C. 2346) (assistance to promote economic or political stability). The President, through the issuance of the January 23, 2017, Presidential Memorandum, has exercised his broad discretion to set the terms and conditions of U.S. foreign assistance relating to global health programs, including by applying the PLGHA policy to contracts. khammond on DSKJM1Z7X2PROD with PROPOSALS II. Discussion and Analysis A. Applicability of the PLGHA Policy The PLGHA policy applies to all global health assistance funding, to the extent allowable by law. Under this policy, ‘‘global health assistance funding’’ is Federal funding used for international health activities that is authorized under the FAA, and funded from the Global Health Programs; Economic Support Fund; or Assistance for Europe, Eurasia, and Central Asia appropriations, including successor appropriations, under the annual Department of State, Foreign Operations, and Related Programs Appropriations Act. Global health assistance funding excludes the following: (1) Humanitarian assistance; (2) USAID’s American Schools and Hospitals Abroad Program activities; VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 (3) USAID’s Food for Peace activities; (4) USAID’s Water Supply and Sanitation activities reported under Program Area HL.8 or successor program under the State Department’s Foreign Assistance Standardized Program Structure; and (5) USAID’s Vulnerable Children activities reported under Program Area ES 4.1 or successor program under the State Department’s Foreign Assistance Standardized Program Structure. The policy applies to U.S. Government contracts funded with global health assistance funding that provide supplies or services for international health activities performed partially or wholly outside the United States (the 50 states, the District of Columbia, and outlying areas). This includes technical assistance and training of foreign individuals or entities as well as services listed in FAR 37.203(b)(1)–(6). The policy will not apply to— (1) Contracts at or below the micropurchase threshold, as defined in FAR 2.101; (2) Contracts for personal services with individuals; or (3) Contracts for the acquisition of commercial items, including pharmaceuticals, medical supplies, logistics support, data management, freight forwarding, and warehousing. B. Requirements Applicable to U.S. Contractors As noted above, while U.S. contractors are not themselves subject to the PLGHA policy, they are required to flow down the PLGHA requirements to any foreign contractor with whom they subcontract, where applicable. Specifically, the proposed rule would require that, in signing a contract or subcontract funded with global health assistance funds, U.S. contractors and U.S. subcontractors at any tier agree that they shall not subcontract for global health assistance under the contract with a foreign contractor unless such foreign contractor agrees, as part of the subcontract, that it shall not, during the term of the award: (1) Perform or actively promote abortion as a method of family planning outside the United States (the 50 states, the District of Columbia, and outlying areas); or (2) provide financial support to any other foreign NGO that conducts such activities. C. Requirements Applicable to Foreign Contractors Foreign contractors that perform a contract with global health assistance funds will be subject to the PLGHA requirements. Specifically, such foreign PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 56551 contractors shall agree not to perform or actively promote abortion as a method of family planning or to provide financial support to any other foreign NGO that conducts such activities. In addition, a foreign contractor shall agree that it will not subcontract for global health assistance under its award with another foreign contractor unless such subcontractor agrees that it shall not, during the term of the award, (1) perform or actively promote abortion as a method of family planning outside the United States (the 50 states, the District of Columbia, and outlying areas) or (2) provide financial support to any other foreign NGO that conducts such activities. The term ‘‘foreign NGO,’’ as used in the rule, excludes public international organizations. The contractor or subcontractor is not required to impose these requirements on foreign NGOs that are not receiving a subcontract and are only the beneficiaries of the training or technical assistance provided by the contractor or subcontractor. D. Additional Requirements The proposed rule further provides that, where the contract requires Government consent to subcontract, the contractor shall describe the due diligence it performed on the subcontractor related to the PLGHA requirements. The proposed rule permits the furnishing of global health assistance funding under a contract to a foreign government or foreign-governmentowned (parastatal) organization even if the organization includes abortion in its health program, provided that no global health assistance funds under the contract are used in support of the abortion activity of the foreign government or foreign-governmentowned (parastatal) organization, and that such funds are placed in a segregated account to ensure they are not used for such activity. Further, the proposed rule states that in the event of a conflict between the rule and an affirmative duty of a health care provider required under local law to provide abortion counseling or referrals, such compliance will not be considered a violation of the rule. Finally, the proposed rule requires that the contractor insert certain terms of the clause in all subcontracts at any tier, except for subcontracts at or below the micro-purchase threshold; subcontracts for the acquisition of commercial items; and subcontracts for personal services with individuals. E:\FR\FM\14SEP1.SGM 14SEP1 56552 Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules E. Violations The proposed rule sets forth specific requirements for responding to violations of contract terms. Specifically, the Government shall terminate the performance of work under the contract in accordance with the termination clause of the contract, if the foreign contractor violates its undertakings, unless the Government determines that other corrective action or remedy is warranted. If the contractor has reason to believe that the subcontractor has violated any requirement of the contract, the contractor shall consult with the contracting officer and provide full cooperation prior to terminating the subcontract or determining that other corrective action is warranted. Furthermore, the proposed rule provides the circumstances under which violations by the subcontractor of any requirement in the contract will be imputed to the contractor—if the contractor knowingly subcontracts with a foreign subcontractor that does not abide by the requirements of the policy; where the contractor fails to make reasonable due diligence efforts prior to awarding a subcontract, and the subcontractor did not abide by its contractual terms required in the clause; or where the contractor knows, or has reason to know, of a violation by its subcontractor but fails to terminate the subcontract or take other corrective action. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items A. Applicability to Contracts at or Below the SAT The PLGHA policy does not apply to contracts below the micro-purchase threshold. B. Applicability to Contracts for the Acquisition of Commercial Items, Including Commercially Available Offthe-Shelf Items khammond on DSKJM1Z7X2PROD with PROPOSALS DoD, GSA, and NASA do not intend to apply the PLGHA policy to contracts for the acquisition of commercial items. IV. Expected Cost Impact on the Public The following is a summary of the impact on contractors awarded contracts that include the new FAR clause: (1) All foreign contractors, whether prime or sub-recipients, of global health assistance funding must agree that (1) they will not perform or actively promote abortion as a method of family planning, or (2) provide financial support to any other foreign nongovernmental organization that conduct such activities. Notably, the new clause will be included in new awards and, to the extent practicable, in existing awards when modified to add funding. For the existing awards that will include the new clause, if a foreign prime contractor or subcontractor refuses to comply with this prohibition, the government and/or prime contractors would need to either not award a contract to that entity if they had otherwise been the selected offeror, or terminate an existing contract. The government or prime contractor would then have to find and contract or subcontract with an alternative entity that would agree to this prohibition. We expect that domestic entities would incur costs for ensuring the compliance of their foreign contractors with this rule. (2) The primary costs to contractors (both U.S. and foreign) and foreign subcontractors associated with the rule may include increased compliance costs such as training, development of compliance tools, ongoing monitoring activities, etc. (3) Foreign contractors and foreign subcontractors will be required to allow the Government, at any reasonable time announced or unannounced, to— (i) Inspect the documents and materials maintained or prepared by the contractor in the usual course of its operations that describe the health activities implemented by the contractor or subcontractor, including reports, brochures and service statistics; (ii) Observe the health activities conducted by the contractor or subcontractor; (iii) Consult with health care personnel of the contractor or subcontractor; and Summary (iv) Obtain a copy of audited financial statements or reports of the contractor or subcontractor; as applicable. (4) All contractors will be required to request Government approval prior to treating the health activities of two or more organizations that are affiliates as separate, when determining whether a foreign firm is eligible for a subcontract funded with global health assistance funding. This would entail contract employees preparing and submitting a written justification to the government explaining why the entities should be considered separate. (5) When preparing requests for a contracting officer’s consent to subcontract, contractor must include a written description of the due diligence it has performed on the subcontractor relating to the requirements of the new clause. Activities could include inspecting financial and programmatic documents; interviewing witnesses and employees; and inspecting facilities; as well as drafting the description. (6) All contractors will be required to review the health activities of subcontractors that are suspected of violating the terms of the FAR clause 52.225–X and to provide the results of any of those reviews to the Government. This would require contractor employees to inspect financial and programmatic documents; interview witnesses and employees; and inspect facilities. (7) All contractors will be required to place in a segregated account any global health assistance funds transferred to a foreign government or parastatal that includes abortion in its health program. This would require the contractor overseeing that the foreign government or parastatal contractor or subcontractor is maintaining a separate bank account. The foreign government or parastatal contractor or subcontractor would have to open and maintain a separate bank account for these award funds. DoD, GSA, and NASA have performed a regulatory cost analysis on this proposed rule. The following is a summary of the estimated cost calculated in from FY2016–FY2018 at a 3 and 7 percent discount rate and in perpetuity: Public Present Value (3%) (millions) ...................................................................................................... Annualized Costs (3%) (millions) ................................................................................................ Present Value (7%) (millions) ...................................................................................................... Annualized Costs (7%) (millions) ................................................................................................ VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\14SEP1.SGM $30.0 .9 21.6 1.5 14SEP1 Government $39.3 1.2 28.0 2.0 Total $69.3 2.1 49.6 3.5 Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules 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 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 a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. VI. Executive Order 13771 This proposed rule is considered an E.O. 13771 regulatory action. We estimate that this rule generates $2.1 million in annualized costs, discounted at 7 percent relative to year 2016, over a perpetual time horizon. More details on the costs associated with this rule can be found in the expected cost impact section of the rule. khammond on DSKJM1Z7X2PROD with PROPOSALS VII. Regulatory Flexibility Act DoD, GSA, and NASA do not expect this 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. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed, and is summarized as follows: This action is necessary to implement the Presidential Memorandum Regarding the Mexico City Policy, issued on January 23, 2017. This Presidential Memorandum reinstated the 2001 Presidential Memorandum on the ‘‘Mexico City Policy,’’ and directed the Secretary of State, in coordination with the Secretary of Health and Human Services, to implement a plan to extend the requirements of the Mexico City Policy to ‘‘global health assistance furnished by all departments or agencies’’ to the extent allowable by law. To extend the Mexico City Policy as directed under the January 23, 2017, Presidential Memorandum, the Secretary of State approved, on May 9, 2017, a plan to implement the manner in which U.S. Government Departments and Agencies will apply the provisions of the Mexico City Policy to foreign NGOs that receive U.S. funding for global health assistance. The plan, called ‘‘Protecting Life in Global Health Assistance’’ (PLGHA), expanded the application of the Mexico City Policy in three respects, to the extent allowable by law. First, it extended the policy to all affected Federal agencies. Second, it extended the policy to VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 all global health assistance. Third, it required the extension of the policy to contracts in addition to Federal assistance. The objective of this proposed rule is to ensure contractors are aware of the requirement to comply with the PLGHA policy, pursuant to the PLGHA plan approved by the Secretary of State further to the January 23, 2017, Presidential memorandum. The President has broad discretion to set the terms and conditions on which the United States provides foreign assistance. The United States provides global health assistance through various Federal agencies, under the authorities granted to those Federal agencies, including the Foreign Assistance Act (FAA) (22 U.S.C. 2151 et seq.). The Department of State and USAID, as well as other Federal agencies that receive foreign assistance funds from the Department of State and USAID, rely on the authorities under the FAA. Under the FAA, the President is authorized to furnish foreign assistance for voluntary population planning, health programs, and to promote economic or political stability ‘‘on such terms and conditions as [the President] may determine.’’ See, e.g., section 104(b) of the FAA (22 U.S.C. 2151b(b)) (assistance for family planning and population growth); section 104(c)(1) of the FAA (22 U.S.C. 2151b(c)(1)) (health assistance); section 531 of the FAA (22 U.S.C. 2346) (assistance to promote economic or political stability). The President, through the issuance of the January 23, 2017, Presidential Memorandum, has exercised his broad discretion to set the terms and conditions of U.S. foreign assistance relating to global health programs, including by applying the PLGHA policy to contracts. The PLGHA policy applies to foreign nongovernmental organizations (including contractors). Although U.S. entities are not themselves subject to the policy (not to perform or actively promote abortion as a method of family planning with any source of funds), they must agree to flow down the policy requirements to foreign nongovernmental organizations under their contracts. This proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Analysis Act, 5 U.S.C. 601, et seq. U.S. contractors are not themselves subject to the policy (not to perform or actively promote abortion as a method of family planning with any source of funds), but they must agree to flow down the PLGHA requirements to subcontractors and ensure that foreign subcontractors comply with the policy. This rule applies to foreign prime contractors. Based on data available from FY2016– FY2018, we estimate that approximately 253 contractors would be affected by this rule. Of that we estimate that 45 small businesses would be affected; equating to 18 percent of the total contractors affected. This rule does impose new reporting, recordkeeping and other compliance requirements. The rule includes requirements for access to documents, records, and processes to conduct PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 56553 inspections for compliance purposes. U.S. contractors will be responsible for the oversight of their foreign subcontractors. The foreign contractors will be subject to this requirement. Instances of these requirements are— a. 52.225–XX(c)(2)(i) Inspection of documents and materials (foreign primes)— ‘‘(c) Foreign prime contractors. This paragraph (c) applies only to foreign prime contractors, and does not affect any contractual rights between U.S. prime contractors and the U.S. Government: (2) The Contractor shall allow authorized representatives of the Government to, at any reasonable time, announced or unannounced, consistent with the terms of this contract— (i) Inspect the documents and materials maintained or prepared by the Contractor in the usual course of its operations that describe the health activities implemented by the Contractor, including reports, brochures, and service statistics’’; b. 52.225–XX(j)(1)(ii)(A) Inspection of documents and materials (foreign subcontractors)— ‘‘(j) Obligations regarding foreign subcontracts. (1) The Contractor shall ensure that foreign subcontractors at any tier that receive global health assistance funding agree to the following additional terms: (ii) The Contractor and authorized representatives of the Government may, at any reasonable time, announced or unannounced, consistent with the terms of this contract, perform any of the following: (A) Inspect the documents and materials maintained or prepared by the subcontractor in the usual course of its operations that describe the health activities of the subcontractor, including reports, brochures, and service statistics.’’ c. 52.225–XX(e) Consent to subcontract (all primes and subcontractors)— ‘‘(e) Consent to subcontract. If the contract includes the clause at FAR 52.244–2, Subcontracts, and requires the Contractor to obtain consent prior to entering into a subcontract, then the Contractor shall provide to the Contracting Officer, in the consent request, a description of the due diligence performed by the Contractor on the subcontractor relating to the requirements in this clause. d. 52.225–XX(g)(2) Review of health program for violations (all primes and subcontractors)— ‘‘(g) Government independent inquiries. (2) In the event that the Contractor or the Government has reason to believe that a foreign subcontractor may have violated the requirements of this clause, the Contractor shall review the health program of the foreign subcontractor to determine whether such a violation has occurred. The Contractor shall provide the Contracting Officer the results of the review.’’ e. 52.225–XX(j)(2) and (j)(3) Review of health program for violations (foreign subcontractors)— ‘‘(j) Obligations regarding foreign subcontracts. (2) In the event that the Contractor or the Government has reason to believe that a foreign subcontractor may have violated the E:\FR\FM\14SEP1.SGM 14SEP1 56554 Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules requirements of this clause, the Contractor shall review the health program of the subcontractor to determine whether such a violation has occurred. (3) If the Contractor has reason to believe that the subcontractor has violated any requirement of this clause, the Contractor shall consult with the Contracting Officer and provide full cooperation prior to terminating the subcontract or determining that other corrective action is warranted.’’ The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD, GSA, and NASA were unable to identify any alternatives to the rule that would reduce the impact on small entities and still meet the requirements. khammond on DSKJM1Z7X2PROD with PROPOSALS The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2018–002), in correspondence. VIII. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The proposed rule contains information collection requirements. Accordingly, the Regulatory Secretariat Division has submitted a request for approval of a new information collection requirement concerning FAR Case 2018–002, Protecting Life in Global Health Assistance to the Office of Management and Budget. A. Public reporting burden for this collection of information is estimated to average 35.8 hours 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: 253. * Responses per respondent: 4.3. * Total annual responses: 1,089. * Preparation hours per response: 35.8. * Total response burden hours: 38,992. B. Request for Comments Regarding Paperwork Burden. Submit comments, including suggestions for reducing this burden, not later than November 13, 2020 to: FAR Desk Officer, OMB, Room 10102, VerDate Sep<11>2014 17:45 Sep 11, 2020 Jkt 250001 NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, 2nd Floor, Washington, DC 20405–0001. Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. Requesters may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, 2nd Floor, Washington, DC 20405–0001. Please cite OMB Control Number 9000–00XX, Title, in all correspondence. The 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). List of Subjects in 48 CFR Parts 1, 7, 25, 44, and 52 Government procurement. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 7, 25, 44, and 52 as set forth below: 1. The authority citation for 48 CFR parts 1, 7, 25, 44, and 52 continues to read as follows: ■ Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM 2. In section 1.106, amend the table by adding an entry for ‘‘52.225–XX’’ in numerical order to read as follows: ■ 1.106 OMB approval under the Paperwork Reduction Act. * PO 00000 * * Frm 00019 * Fmt 4702 * Sfmt 4702 OMB control No. FAR segment * * * 52.225–XX ............................ * * * * * 9000–XXXX * * PART 7—ACQUISITION PLANNING 3. Add section 7.10X to read as follows: ■ 7.10X Additional requirements for global health assistance acquisitions. When planning to procure supplies or services for global health assistance, the requiring activity is responsible for notifying the contracting officer, in writing, when the contract will be funded partially or wholly with global health assistance funding, as defined in 25.100X–4. PART 25—FOREIGN ACQUISITION 4. Add section 25.100X to read as follows: ■ 25.100X Protecting Life in Global Health Assistance. 25.100X–1 Scope of section. This section implements the ‘‘Protecting Life in Global Health Assistance’’ policy approved by the Secretary of State on May 9, 2017, as directed by the Presidential Memorandum regarding The Mexico City Policy, dated January 23, 2017. 25.100X–2 Authority. (a) Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.). (b) Presidential Memorandum on the Mexico City Policy (Memorandum of January 23, 2017, 3 CFR, 2017 Comp., p. 435.). 25.100X–3 Applicability. This section applies to all executive agencies that implement programs or activities funded partially or wholly with global health assistance funding as defined in 25.100X–4. 25.100X–4 Definitions. As used in this section— Abortion as a method of family planning means abortion when it is for the purpose of spacing births. This includes, but is not limited to, abortions performed for the physical or mental health of the mother and abortions performed for fetal abnormalities, but does not include abortions performed if the life of the mother would be endangered if the fetus were carried to term, or abortions performed following rape or incest. Actively promote abortion as a method of family planning means for an E:\FR\FM\14SEP1.SGM 14SEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules organization to commit resources, financial or other, in a substantial or continuing effort to increase the availability or use of abortion as a method of family planning. (1) This includes, but is not limited to, the following activities: (i) Operating a service-delivery site that provides, as part of its regular program, counseling, including advice and information, regarding the benefits and/or availability of abortion as a method of family planning; (ii) Providing advice that abortion as a method of family planning is an available option or encouraging women to consider abortion (passively responding to a question regarding where a safe, legal abortion may be obtained is not considered active promotion if a woman who is already pregnant specifically asks the question, she clearly states that she has already decided to have a legal abortion, and the healthcare provider reasonably believes that the ethics of the medical profession in the host country requires a response regarding where it may be obtained safely and legally); (iii) Lobbying a foreign government to legalize or make available abortion as a method of family planning or lobbying such a government to continue the legality of abortion as a method of family planning; and (iv) Conducting a public information campaign outside the United States (the 50 states, the District of Columbia, and outlying areas), regarding the benefits and/or availability of abortion as a method of family planning. (2) Excluded from this definition are referrals for abortion as a result of rape or incest, or if the life of the mother would be endangered if she were to carry the fetus to term. Also excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, postabortion care. (3) Action by an individual acting in the individual’s capacity to actively promote abortion as a method of family planning shall not be attributed to an organization with which the individual is associated, provided that the individual is neither on duty nor acting on the organization’s premises, and the organization neither endorses nor provides financial support for the action and takes reasonable steps to ensure that he or she does not improperly represent that the individual is acting on behalf of the organization. Foreign contractor means a contractor or subcontractor organized or existing under the laws of a country other than the United States (the 50 states, the District of Columbia, and outlying VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 areas). This excludes public international organizations. Foreign nongovernmental organization means any nongovernmental organization or entity, whether non-profit or profit making, organized or existing under the laws of a country other than the United States (the 50 states, the District of Columbia, and outlying areas). This excludes public international organizations. Global health assistance funding is Federal funding used for international health activities that is authorized under the Foreign Assistance Act of 1961, and funded from the Global Health Programs; Economic Support Fund; or Assistance for Europe, Eurasia, and Central Asia appropriations, including successor appropriations, under the annual Department of State, Foreign Operations, and Related Programs Appropriations Act. Global health assistance funding excludes funding for— (1) Humanitarian assistance; (2) U.S. Agency for International Development’s (USAID’s) American Schools and Hospitals Abroad Program activities; (3) USAID’s Food for Peace activities; (4) USAID’s Water Supply and Sanitation activities reported under Program Area HL.8 or successor program under the Department of State’s Foreign Assistance Standardized Program Structure; and (5) USAID’s Vulnerable Children activities reported under Program Area ES 4.1 or successor program under the Department of State’s Foreign Assistance Standardized Program Structure. Perform abortions means to operate a facility where abortions are provided as a method of family planning. Excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, postabortion care. Provide financial support means to provide funding, from any source, to a foreign nongovernmental organization through a contract, subcontract, other written agreement or donation of funds; it does not include the provision of funding through contracts, subcontracts, or other written agreements for commercial items as defined under 2.101, except for commercial items to be used primarily to perform abortions as a method of family planning. Public international organization means an organization— (1) Designated as a public international organization under the International Organizations Immunities Act; or PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 56555 (2) Treated as a public international organization pursuant to the regulations or policies of an Executive agency. 25.100X–5 Policy. (a) The Protecting Life in Global Health Assistance policy is that executive agencies take appropriate actions to ensure that foreign nongovernmental organizations agree that they shall not perform or actively promote abortion as a method of family planning, nor provide financial support to any other foreign nongovernmental organization that conducts such activities, during the term of a contract funded with global health assistance funding. This policy applies to Federal assistance awards, as well as contracts containing the clause at 52.225–XX, Protecting Life in Global Health Assistance. For more information about the Protecting Life in Global Health Assistance policy, see the U.S. Agency for International Development’s (USAID) website at https:// www.usaid.gov/global-health/ legislative-policy-requirements. (b) To comply with the Protecting Life in Global Health Assistance policy, a foreign contractor or subcontractor is required to agree not to perform or actively promote abortion as a method of family planning or provide financial support to any other foreign nongovernmental organization that conducts such activities. U.S. contractors are required to flow this requirement down to all foreign subcontracts subject to this policy. 25.100X–6 Procedures. (a) When the requiring activity notifies the contracting officer in writing that global health assistance funding is to be used for the procurement (see 7.10X), the contracting officer shall include the clause at 52.225–XX, Protecting Life in Global Health Assistance prescribed at 25.100X–7; (b) When providing consent to subcontract with a foreign subcontractor in accordance with subpart 44.2, the contracting officer must ensure that the contractor has provided a description of the due diligence performed by the contractor on the subcontractor relating to the requirements in clause 52.225–XX (see 44.202–2(a)(14)). 25.100X–7 Contract clauses. (a) Insert the clause at 52.225–XX, Protecting Life in Global Health Assistance, in solicitations and contracts that— (1) Provide supplies or services for international health activities that are funded partially or wholly with global health assistance funding, including E:\FR\FM\14SEP1.SGM 14SEP1 56556 Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules contracts for technical assistance and training of foreign individuals or entities and services listed in 37.203(b)(1)–(6); and (2) Are performed partially or wholly outside the United States (the 50 states, the District of Columbia, and outlying areas). (b) The clause is not required to be used for— (1) Contracts at or below the micro purchase threshold, as defined in FAR 2.101; (2) Contracts for personal services with individuals; or (3) Contracts for the acquisition of commercial items. PART 44—SUBCONTRACTING POLICIES AND PROCEDURES 5. Amend section 44.202–2 by adding paragraph (a)(14) to read as follows: ■ 44.202–2 Considerations. (a) * * * (14) When the clause at 52.225–XX, Protecting Life in Global Health Assistance, is in the contract, has the contractor included a description of the due diligence performed on the subcontractor relating to the requirements of the clause. * * * * * PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 6. Add section 52.225–XX to read as follows: ■ 52.225–XX Protecting Life in Global Health Assistance. As prescribed in 25.100X–7, insert the following clause: khammond on DSKJM1Z7X2PROD with PROPOSALS Protecting Life in Global Health Assistance (DATE) (a) Definitions. As used in this clause– Abortion as a method of family planning means abortion when it is for the purpose of spacing births. This includes, but is not limited to, abortions performed for the physical or mental health of the mother and abortions performed for fetal abnormalities, but does not include abortions performed if the life of the mother would be endangered if the fetus were carried to term, or abortions performed following rape or incest. Actively promote abortion as a method of family planning means for an organization to commit resources, financial or other, in a substantial or continuing effort to increase the availability or use of abortion as a method of family planning. (1) This includes, but is not limited to, the following activities: (i) Operating a service-delivery site that provides, as part of its regular program, counseling, including advice and information, regarding the benefits and/or availability of abortion as a method of family planning; VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 (ii) Providing advice that abortion as a method of family planning is an available option or encouraging women to consider abortion (passively responding to a question regarding where a safe, legal abortion may be obtained is not considered active promotion if a woman who is already pregnant specifically asks the question, she clearly states that she has already decided to have a legal abortion, and the healthcare provider reasonably believes that the ethics of the medical profession in the host country requires a response regarding where it may be obtained safely and legally); (iii) Lobbying a foreign government to legalize or make available abortion as a method of family planning or lobbying such a government to continue the legality of abortion as a method of family planning; and (iv) Conducting a public information campaign outside the United States (the 50 states, the District of Columbia, and outlying areas), regarding the benefits and/or availability of abortion as a method of family planning. (2) This does not include referrals for abortion as a result of rape or incest, or if the life of the mother would be endangered if she were to carry the fetus to term. Also excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, post-abortion care. (3) Action by an individual acting in the individual’s capacity to actively promote abortion as a method of family planning shall not be attributed to an organization with which the individual is associated, provided that the individual is neither on duty nor acting on the organization’s premises, and the organization neither endorses nor provides financial support for the action and takes reasonable steps to ensure that he or she does not improperly represent that the individual is acting on behalf of the organization. Foreign contractor means a contractor or subcontractor organized or existing under the laws of a country other than the United States (the 50 states, the District of Columbia, and outlying areas). This excludes public international organizations. Foreign nongovernmental organization means any nongovernmental organization or entity, whether nonprofit or profit making, organized or existing under the laws of a country other than the United States (the 50 states, the District of Columbia, and outlying areas). This excludes public international organizations. Full cooperation, (1) Means, at a minimum— (i) Disclosure to the Government information sufficient to identify the nature and extent of a violation; (ii) Providing timely and complete responses to Government auditors’ and investigators’ requests for documents and access to employees with information; and (iii) Cooperating fully in providing reasonable access to its facilities and staff (both inside and outside the U.S.) to allow contracting agencies and other responsible Federal agencies to conduct audits, investigations, or other actions to ascertain compliance with this clause. (2) Does not— PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 (i) Foreclose any contractor rights arising in law, this regulation, or the terms of the contract; (ii) Require the Contractor to waive its attorney-client privilege or the protections afforded by the attorney work product doctrine; (iii) Require any officer, director, owner, employee, or agent of the Contractor, including a sole proprietor, to waive his or her attorney client privilege or Fifth Amendment rights; or (iv) Restrict the Contractor from— (A) Conducting an internal investigation; or (B) Defending a proceeding or dispute arising under the contract or related to a potential or disclosed violation. Global health assistance funding is Federal funding used for international health activities that is authorized under the Foreign Assistance Act of 1961, and funded from the Global Health Programs; Economic Support Fund; or Assistance for Europe, Eurasia, and Central Asia appropriations, including successor appropriations, under the annual Department of State, Foreign Operations, and Related Programs Appropriations Act. Global health assistance funding excludes funding for— (1) Humanitarian assistance; (2) U.S. Agency for International Development’s (USAID’s) American Schools and Hospitals Abroad Program activities; (3) USAID’s Food for Peace activities; (4) USAID’s Water Supply and Sanitation activities reported under Program Area HL.8 or successor program under the Department of State’s Foreign Assistance Standardized Program Structure; and (5) USAID’s Vulnerable Children activities reported under Program Area ES 4.1 or successor program under the Department of State’s Foreign Assistance Standardized Program Structure. Parastatal means a foreign-governmentowned organization operated as a commercial company or other organization, including nonprofits, or enterprises in which foreign governments or foreign agencies have a controlling interest. Perform abortions means to operate a facility where abortions are provided as a method of family planning. Excluded from this definition is the treatment of injuries or illnesses caused by legal or illegal abortions, for example, post-abortion care. Provide financial support means to provide funding, from any source, to a foreign nongovernmental organization through a contract, subcontract, other written agreement or donation of funds; it does not include the provision of funding through contracts, subcontracts, or other written agreements for commercial items as defined under 2.101, except for commercial items to be used primarily to perform abortions as a method of family planning. Public international organization means an organization— (1) Designated as a public international organization under the International Organizations Immunities Act; or (2) Treated as a public international organization pursuant to the regulations or policies of an Executive agency. E:\FR\FM\14SEP1.SGM 14SEP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Proposed Rules (b) Prime contractor. The Contractor shall not subcontract for supplies or services using global health assistance funding under this contract with a foreign contractor unless the subcontractor at any tier agrees, by entering into such subcontract, that it shall not, during the term of the subcontract— (1) Perform or actively promote abortion as a method of family planning, outside the United States (the 50 states, the District of Columbia, and outlying areas); or (2) Provide financial support to any other foreign nongovernmental organization that conducts such activities. (c) Foreign prime contractors. This paragraph (c) applies only to foreign prime contractors, and does not affect any contractual rights between U.S. prime contractors and the U.S. Government: (1) The Contractor shall not, during the term of this contract— (i) Perform or actively promote abortion as a method of family planning outside the United States (the 50 states, the District of Columbia, and outlying areas); or (ii) Provide financial support to any other foreign nongovernmental organization that conducts such activities. (2) The Contractor shall allow authorized representatives of the Government to, at any reasonable time, announced or unannounced, consistent with the terms of this contract— (i) Inspect the documents and materials maintained or prepared by the Contractor in the usual course of its operations that describe the health activities implemented by the Contractor, including reports, brochures, and service statistics; (ii) Observe the health activities conducted by the Contractor; (iii) Consult with healthcare personnel of the Contractor; and (iv) Obtain a copy of audited financial statements or reports of the Contractor; as applicable. (3) The Government shall terminate the performance of work under this contract in accordance with the termination clause of this contract for any violation of this clause unless the Government determines that other corrective action or remedy is warranted. In addition to other remedies available to the Government, the Contractor’s failure to comply with the requirements of this clause may result in— (i) Suspension of contract payments until the Contractor has taken appropriate remedial action; and/or (ii) Suspension or debarment. (d) Subcontractor eligibility. When the Contractor is determining whether a foreign contractor is eligible for a subcontract with global health assistance funding under this contract, the action of separate nongovernmental organizations shall not be imputed to the subcontractor, unless, in the judgment of the Government, a separate nongovernmental organization is being used purposefully to avoid the requirements of the clause. (1) Separate nongovernmental organizations are those that have distinct legal existence in accordance with the laws of the countries in which they are organized. Foreign organizations that are separately organized shall not be considered separate if VerDate Sep<11>2014 16:50 Sep 11, 2020 Jkt 250001 they are affiliates (see definition at FAR 2.101). (2) The Contractor may request the Government’s approval to treat as separate the health activities of two or more organizations, which would be considered affiliates under paragraph (d)(1) of this clause. (3) In the event the Contractor makes a request under paragraph (d)(2) of this clause, the Contractor shall provide a written justification to the Government that the health activities of the organizations are sufficiently distinct to warrant not imputing the activity of one to the other. (e) Consent to subcontract. If the contract includes the clause at FAR 52.244–2, Subcontracts, and requires the Contractor to obtain consent prior to entering into a subcontract, then the Contractor shall provide to the Contracting Officer, in the consent request, a description of the due diligence performed by the Contractor on the subcontractor relating to the requirements in this clause. (f) Violations. Violations by the subcontractor of any requirement in this clause will be imputed to the Contractor only if— (1) The Contractor knowingly provides global health assistance funding in a subcontract under this contract to a foreign contractor that performs or actively promotes abortion as a method of family planning; (2) The Contractor failed to make reasonable due diligence efforts prior to providing global health assistance funding in a subcontract under this contract to a foreign contractor, and the subcontractor did not abide by its contractual terms required in this clause; or (3) The Contractor knows or has reason to know, by virtue of the monitoring that the contractor is required to perform under the terms of this contract, that a subcontractor has violated any of the contract terms required by this clause, and the Contractor fails to terminate the subcontract or fails to take other appropriate corrective action. (g) Government independent inquiries. (1) The Government may make independent inquiries in the community served by a foreign contractor or subcontractor under this contract regarding whether it performs or actively promotes abortion as a method of family planning. (2) In the event that the Contractor or the Government has reason to believe that a foreign subcontractor may have violated the requirements of this clause, the Contractor shall review the health program of the foreign subcontractor to determine whether such a violation has occurred. The Contractor shall provide the Contracting Officer the results of the review. (h) Foreign Governments and parastatals. The Contractor may award a contract with global health assistance funding to a foreign government or parastatal even though the foreign government or parastatal includes abortion in its health program, provided that no global health assistance funding shall be used under this contract in support of the abortion activity of the foreign government or parastatal, and any funds transferred to the foreign government or parastatal shall be PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 56557 placed in a segregated account to ensure that such funds are not used to support the abortion activity of the foreign government or parastatal. (i) Affirmative duty exception. In the event of a conflict between a term of this clause and an affirmative duty of a healthcare provider required under local law to provide counseling about and referrals for abortion as a method of family planning, compliance with such law shall not trigger a violation of this clause. (j) Obligations regarding foreign subcontracts. (1) The Contractor shall ensure that foreign subcontractors at any tier that receive global health assistance funding agree to the following additional terms: (i) The subcontractor shall not, during the term of the subcontract (A) Perform or actively promote abortion as a method of family planning outside the United States (the 50 states, the District of Columbia, and outlying areas); or (B) Provide financial support to any other foreign nongovernmental organization that conducts such activities. (ii) The Contractor and authorized representatives of the Government may, at any reasonable time, announced or unannounced, consistent with the terms of this contract, perform any of the following: (A) Inspect the documents and materials maintained or prepared by the subcontractor in the usual course of its operations that describe the health activities of the subcontractor, including reports, brochures, and service statistics. (B) Observe health activities conducted by the subcontractor. (C) Consult with healthcare personnel of the subcontractor. (D) Obtain a copy of audited financial statements or reports of the subcontractor, as applicable. (2) In the event that the Contractor or the Government has reason to believe that a foreign subcontractor may have violated the requirements of this clause, the Contractor shall review the health program of the subcontractor to determine whether such a violation has occurred. (3) If the Contractor has reason to believe that the subcontractor has violated any requirement of this clause, the Contractor shall consult with the Contracting Officer and provide full cooperation prior to terminating the subcontract or determining that other corrective action is warranted. (k) Subcontracts. The Contractor shall insert the terms of this clause, except paragraphs (b), (c) and (e), in all subcontracts awarded with global health assistance funding at any tier except for subcontracts— (1) At or below the micro-purchase threshold, as defined at FAR 2.101; (2) For personal services with individuals; or (3) For the acquisition of commercial items. (End of Clause) [FR Doc. 2020–17551 Filed 9–10–20; 1:30 pm] BILLING CODE 6820–EP–P E:\FR\FM\14SEP1.SGM 14SEP1

Agencies

[Federal Register Volume 85, Number 178 (Monday, September 14, 2020)]
[Proposed Rules]
[Pages 56549-56557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17551]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 7, 25, 44, and 52

[FAR Case 2018-002; Docket No. FAR Case 2018-0051, Sequence No. 1]
RIN 9000-AN62


Federal Acquisition Regulation: Protecting Life in Global Health 
Assistance

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement the Protecting Life in Global 
Health Assistance policy in connection with the Presidential Memorandum 
regarding ``The Mexico City Policy,'' dated January 23, 2017.

DATES: Interested parties should submit written comments at the address 
shown below on or before November 13, 2020 to be considered in the 
formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2018-002 to 
Regulations.gov: http://www.regulations.gov. Submit comments

[[Page 56550]]

via the Federal eRulemaking portal by searching for ``FAR Case 2018-
002''. Select the link ``Comment Now'' that corresponds with ``FAR Case 
2018-002''. Follow the instructions provided at the ``Comment Now'' 
screen. Please include your name, company name (if any), and ``FAR Case 
2018-002'' on your attached document. If your comment cannot be 
submitted using https://www.regulations.gov, call or email the points 
of contact in the FOR FURTHER INFORMATION CONTACT section of this 
document for alternate instructions. Instructions: Please submit 
comments only and cite ``FAR case 2018-002'' in all correspondence 
related to this case. Comments received generally will be posted 
without change to http://www.regulations.gov, including any personal 
and/or business confidential information provided. To confirm receipt 
of your comment(s), please check www.regulations.gov, approximately two 
to three days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: [email protected] or call 202-969-
4075. Please cite ``FAR Case 2018-002''.

SUPPLEMENTARY INFORMATION:

I. Background and Authority

A. Background

    DoD, GSA, and NASA are proposing to revise the FAR to implement the 
Presidential Memorandum regarding ``The Mexico City Policy'', issued on 
January 23, 2017. This Presidential Memorandum reinstated the 2001 
Presidential Memorandum on the ``Mexico City Policy,'' and directed the 
Secretary of State, in coordination with the Secretary of Health and 
Human Services, to implement a plan to extend the requirements of the 
Mexico City Policy to ``global health assistance furnished by all 
departments or agencies'' to the extent allowable by law.
    The Mexico City Policy was first issued by President Reagan in 1984 
and required foreign nongovernmental organizations (NGOs) to agree, as 
a condition of receiving U.S. Agency for International Development 
(USAID) family planning assistance, not to perform or actively promote 
abortion as a method of family planning with any source of funds. Under 
the Mexico City Policy, U.S. NGOs did not themselves have to agree that 
they would not perform or actively promote abortion as a method of 
family planning, but they were required to flow down the policy's 
requirements to foreign NGOs receiving family planning assistance under 
their awards. The Mexico City Policy was rescinded by President Clinton 
in 1993, reinstated by President Bush in 2001, and rescinded by 
President Obama in 2009. When in effect previously, the Mexico City 
Policy's requirements only applied to USAID family planning assistance 
and, from 2003-2009, to certain State Department activities; and it 
only applied to Federal assistance and not contracts.
    To extend the Mexico City Policy as directed under the January 23, 
2017, Presidential Memorandum, the Secretary of State approved on May 
9, 2017, a plan to implement the manner in which U.S. Government 
Departments and Agencies will apply the provisions of the Mexico City 
Policy to foreign NGOs that receive U.S. funding for global health 
assistance. The plan, called ``Protecting Life in Global Health 
Assistance'' (PLGHA), expanded the application of the Mexico City 
Policy in three respects, to the extent allowable by law. First, it 
extended the policy to all affected Federal agencies. Second, it 
extended the policy to all global health assistance. Third, it required 
the extension of the policy to contracts in addition to Federal 
assistance. Each of these points is addressed further below. The PLGHA 
policy applies to foreign NGOs (including contractors); U.S. entities 
are not subject to the specific policy requirement not to perform or 
actively promote abortion as a method of family planning with any 
source of funds, but they must agree to flow down the policy 
requirements to foreign NGOs in accordance with the terms and 
conditions of their contracts.
1. Affected Federal Agencies
    The PLGHA policy applies to all Federal agencies receiving global 
health assistance funding, including USAID, the State Department, the 
Department of Health and Human Services (HHS), and the DoD. To the 
extent other Federal agencies receive global health assistance funding 
through interagency transfer, they may also be required to apply the 
PLGHA terms in contracts with such funding, in accordance with FAR 
subparts 17.5 or 17.7.
2. Affected Global Health Assistance
    The PLGHA policy applies to ``global health assistance''. This 
includes funding for international health programs, such as for Human 
Immunodeficiency Virus/Acquired Immunodeficiency Syndrome; maternal and 
child health; nutrition; infectious diseases, including malaria and 
tuberculosis; global health security; and voluntary family planning and 
reproductive health. More information about the scope of ``global 
health assistance'' is set forth below under ``II. Discussion and 
Analysis--Applicability of the PLGHA Policy.''
3. Affected Awards
    The State Department's PLGHA implementation plan called for 
affected Federal agencies to take steps to apply the policy to Federal 
assistance (grants and cooperative agreements) and contracts. The PLGHA 
policy does not apply to global health assistance to foreign national 
or local governments, public international organizations and other 
multilateral entities in which sovereign nations participate.
    For Federal assistance, affected Federal agencies developed a PLGHA 
standard provision, which they have included, starting in May 2017, in 
all new Federal assistance awards that use global health assistance 
funding and existing awards when amended to add new funding for global 
health assistance.
    For contracts, this rule proposes to include a new clause entitled 
``Protecting Life in Global Health Assistance'' in applicable contracts 
and subcontracts funded partially or wholly with global health 
assistance funding. The PLGHA implementation plan directs Federal 
agencies to take appropriate steps to apply the policy to new 
contracts; the plan would also apply to existing contracts, to the 
extent practicable, when modified to add funding.
4. Purpose
    The PLGHA policy is consistent with the Presidential directive in 
the Presidential Memorandum--that no U.S. taxpayer money should support 
foreign organizations that perform or actively promote abortion as a 
method of family planning in other nations. Affected Federal agencies 
provide significant global health assistance funding through contracts 
each year. It is critical that such funding is also subject to the 
PLGHA terms and conditions to effect the President's directive.
    All foreign contractors will be eligible to receive global health 
assistance funding if they agree to abide by the terms of the PLGHA 
policy in their contract or subcontract. PLGHA does not reduce the 
amount of global health assistance funding the United States Government 
makes available. The United States remains strongly committed to 
supporting health programs around the world.
5. More Information
    More information about the 2017 Presidential Memorandum and the

[[Page 56551]]

PLGHA policy is available in the following:
     Presidential Memorandum on the Mexico City Policy (82 FR 
8495, January 23, 2017).
     U.S. Agency for International Development's (USAID) 
website at https://www.usaid.gov/global-health/legislative-policy-requirements.

B. Authority

    The President has broad discretion to set the terms and conditions 
on which the United States provides foreign assistance. The United 
States provides global health assistance through various Federal 
agencies, under the authorities granted to those Federal agencies, 
including the Foreign Assistance Act (FAA) (22 U.S.C. 2151 et seq.). 
The State Department and USAID, as well as other Federal agencies that 
receive foreign assistance funds from the State Department and USAID, 
rely on the authorities under the FAA. Under the FAA, the President is 
authorized to furnish foreign assistance for voluntary population 
planning, health programs, and to promote economic or political 
stability ``on such terms and conditions as [the President] may 
determine.'' See, e.g., section 104(b) of the FAA (22 U.S.C. 2151b(b)) 
(assistance for family planning and population growth); section 
104(c)(1) of the FAA (22 U.S.C. 2151b(c)(1)) (health assistance); 
section 531 of the FAA (22 U.S.C. 2346) (assistance to promote economic 
or political stability). The President, through the issuance of the 
January 23, 2017, Presidential Memorandum, has exercised his broad 
discretion to set the terms and conditions of U.S. foreign assistance 
relating to global health programs, including by applying the PLGHA 
policy to contracts.

II. Discussion and Analysis

A. Applicability of the PLGHA Policy

    The PLGHA policy applies to all global health assistance funding, 
to the extent allowable by law. Under this policy, ``global health 
assistance funding'' is Federal funding used for international health 
activities that is authorized under the FAA, and funded from the Global 
Health Programs; Economic Support Fund; or Assistance for Europe, 
Eurasia, and Central Asia appropriations, including successor 
appropriations, under the annual Department of State, Foreign 
Operations, and Related Programs Appropriations Act.
    Global health assistance funding excludes the following:
    (1) Humanitarian assistance;
    (2) USAID's American Schools and Hospitals Abroad Program 
activities;
    (3) USAID's Food for Peace activities;
    (4) USAID's Water Supply and Sanitation activities reported under 
Program Area HL.8 or successor program under the State Department's 
Foreign Assistance Standardized Program Structure; and
    (5) USAID's Vulnerable Children activities reported under Program 
Area ES 4.1 or successor program under the State Department's Foreign 
Assistance Standardized Program Structure.
    The policy applies to U.S. Government contracts funded with global 
health assistance funding that provide supplies or services for 
international health activities performed partially or wholly outside 
the United States (the 50 states, the District of Columbia, and 
outlying areas). This includes technical assistance and training of 
foreign individuals or entities as well as services listed in FAR 
37.203(b)(1)-(6).
    The policy will not apply to--
    (1) Contracts at or below the micro-purchase threshold, as defined 
in FAR 2.101;
    (2) Contracts for personal services with individuals; or
    (3) Contracts for the acquisition of commercial items, including 
pharmaceuticals, medical supplies, logistics support, data management, 
freight forwarding, and warehousing.

B. Requirements Applicable to U.S. Contractors

    As noted above, while U.S. contractors are not themselves subject 
to the PLGHA policy, they are required to flow down the PLGHA 
requirements to any foreign contractor with whom they subcontract, 
where applicable. Specifically, the proposed rule would require that, 
in signing a contract or subcontract funded with global health 
assistance funds, U.S. contractors and U.S. subcontractors at any tier 
agree that they shall not subcontract for global health assistance 
under the contract with a foreign contractor unless such foreign 
contractor agrees, as part of the subcontract, that it shall not, 
during the term of the award: (1) Perform or actively promote abortion 
as a method of family planning outside the United States (the 50 
states, the District of Columbia, and outlying areas); or (2) provide 
financial support to any other foreign NGO that conducts such 
activities.

C. Requirements Applicable to Foreign Contractors

    Foreign contractors that perform a contract with global health 
assistance funds will be subject to the PLGHA requirements. 
Specifically, such foreign contractors shall agree not to perform or 
actively promote abortion as a method of family planning or to provide 
financial support to any other foreign NGO that conducts such 
activities. In addition, a foreign contractor shall agree that it will 
not subcontract for global health assistance under its award with 
another foreign contractor unless such subcontractor agrees that it 
shall not, during the term of the award, (1) perform or actively 
promote abortion as a method of family planning outside the United 
States (the 50 states, the District of Columbia, and outlying areas) or 
(2) provide financial support to any other foreign NGO that conducts 
such activities. The term ``foreign NGO,'' as used in the rule, 
excludes public international organizations.
    The contractor or subcontractor is not required to impose these 
requirements on foreign NGOs that are not receiving a subcontract and 
are only the beneficiaries of the training or technical assistance 
provided by the contractor or subcontractor.

D. Additional Requirements

    The proposed rule further provides that, where the contract 
requires Government consent to subcontract, the contractor shall 
describe the due diligence it performed on the subcontractor related to 
the PLGHA requirements.
    The proposed rule permits the furnishing of global health 
assistance funding under a contract to a foreign government or foreign-
government-owned (parastatal) organization even if the organization 
includes abortion in its health program, provided that no global health 
assistance funds under the contract are used in support of the abortion 
activity of the foreign government or foreign-government-owned 
(parastatal) organization, and that such funds are placed in a 
segregated account to ensure they are not used for such activity.
    Further, the proposed rule states that in the event of a conflict 
between the rule and an affirmative duty of a health care provider 
required under local law to provide abortion counseling or referrals, 
such compliance will not be considered a violation of the rule.
    Finally, the proposed rule requires that the contractor insert 
certain terms of the clause in all subcontracts at any tier, except for 
subcontracts at or below the micro-purchase threshold; subcontracts for 
the acquisition of commercial items; and subcontracts for personal 
services with individuals.

[[Page 56552]]

E. Violations

    The proposed rule sets forth specific requirements for responding 
to violations of contract terms. Specifically, the Government shall 
terminate the performance of work under the contract in accordance with 
the termination clause of the contract, if the foreign contractor 
violates its undertakings, unless the Government determines that other 
corrective action or remedy is warranted. If the contractor has reason 
to believe that the subcontractor has violated any requirement of the 
contract, the contractor shall consult with the contracting officer and 
provide full cooperation prior to terminating the subcontract or 
determining that other corrective action is warranted.
    Furthermore, the proposed rule provides the circumstances under 
which violations by the subcontractor of any requirement in the 
contract will be imputed to the contractor--if the contractor knowingly 
subcontracts with a foreign subcontractor that does not abide by the 
requirements of the policy; where the contractor fails to make 
reasonable due diligence efforts prior to awarding a subcontract, and 
the subcontractor did not abide by its contractual terms required in 
the clause; or where the contractor knows, or has reason to know, of a 
violation by its subcontractor but fails to terminate the subcontract 
or take other corrective action.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

A. Applicability to Contracts at or Below the SAT

    The PLGHA policy does not apply to contracts below the micro-
purchase threshold.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including Commercially Available Off-the-Shelf Items

    DoD, GSA, and NASA do not intend to apply the PLGHA policy to 
contracts for the acquisition of commercial items.

IV. Expected Cost Impact on the Public

    The following is a summary of the impact on contractors awarded 
contracts that include the new FAR clause:
    (1) All foreign contractors, whether prime or sub-recipients, of 
global health assistance funding must agree that (1) they will not 
perform or actively promote abortion as a method of family planning, or 
(2) provide financial support to any other foreign nongovernmental 
organization that conduct such activities. Notably, the new clause will 
be included in new awards and, to the extent practicable, in existing 
awards when modified to add funding. For the existing awards that will 
include the new clause, if a foreign prime contractor or subcontractor 
refuses to comply with this prohibition, the government and/or prime 
contractors would need to either not award a contract to that entity if 
they had otherwise been the selected offeror, or terminate an existing 
contract. The government or prime contractor would then have to find 
and contract or subcontract with an alternative entity that would agree 
to this prohibition. We expect that domestic entities would incur costs 
for ensuring the compliance of their foreign contractors with this 
rule.
    (2) The primary costs to contractors (both U.S. and foreign) and 
foreign subcontractors associated with the rule may include increased 
compliance costs such as training, development of compliance tools, 
ongoing monitoring activities, etc.
    (3) Foreign contractors and foreign subcontractors will be required 
to allow the Government, at any reasonable time announced or 
unannounced, to--
    (i) Inspect the documents and materials maintained or prepared by 
the contractor in the usual course of its operations that describe the 
health activities implemented by the contractor or subcontractor, 
including reports, brochures and service statistics;
    (ii) Observe the health activities conducted by the contractor or 
subcontractor;
    (iii) Consult with health care personnel of the contractor or 
subcontractor; and
    (iv) Obtain a copy of audited financial statements or reports of 
the contractor or subcontractor; as applicable.
    (4) All contractors will be required to request Government approval 
prior to treating the health activities of two or more organizations 
that are affiliates as separate, when determining whether a foreign 
firm is eligible for a subcontract funded with global health assistance 
funding. This would entail contract employees preparing and submitting 
a written justification to the government explaining why the entities 
should be considered separate.
    (5) When preparing requests for a contracting officer's consent to 
subcontract, contractor must include a written description of the due 
diligence it has performed on the subcontractor relating to the 
requirements of the new clause. Activities could include inspecting 
financial and programmatic documents; interviewing witnesses and 
employees; and inspecting facilities; as well as drafting the 
description.
    (6) All contractors will be required to review the health 
activities of subcontractors that are suspected of violating the terms 
of the FAR clause 52.225-X and to provide the results of any of those 
reviews to the Government. This would require contractor employees to 
inspect financial and programmatic documents; interview witnesses and 
employees; and inspect facilities.
    (7) All contractors will be required to place in a segregated 
account any global health assistance funds transferred to a foreign 
government or parastatal that includes abortion in its health program. 
This would require the contractor overseeing that the foreign 
government or parastatal contractor or subcontractor is maintaining a 
separate bank account. The foreign government or parastatal contractor 
or subcontractor would have to open and maintain a separate bank 
account for these award funds.
    DoD, GSA, and NASA have performed a regulatory cost analysis on 
this proposed rule. The following is a summary of the estimated cost 
calculated in from FY2016-FY2018 at a 3 and 7 percent discount rate and 
in perpetuity:

----------------------------------------------------------------------------------------------------------------
                             Summary                                  Public        Government         Total
----------------------------------------------------------------------------------------------------------------
Present Value (3%) (millions)...................................           $30.0           $39.3           $69.3
Annualized Costs (3%) (millions)................................              .9             1.2             2.1
Present Value (7%) (millions)...................................            21.6            28.0            49.6
Annualized Costs (7%) (millions)................................             1.5             2.0             3.5
----------------------------------------------------------------------------------------------------------------


[[Page 56553]]

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 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 a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

VI. Executive Order 13771

    This proposed rule is considered an E.O. 13771 regulatory action. 
We estimate that this rule generates $2.1 million in annualized costs, 
discounted at 7 percent relative to year 2016, over a perpetual time 
horizon. More details on the costs associated with this rule can be 
found in the expected cost impact section of the rule.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this 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. 
However, an Initial Regulatory Flexibility Analysis (IRFA) has been 
performed, and is summarized as follows:

    This action is necessary to implement the Presidential 
Memorandum Regarding the Mexico City Policy, issued on January 23, 
2017. This Presidential Memorandum reinstated the 2001 Presidential 
Memorandum on the ``Mexico City Policy,'' and directed the Secretary 
of State, in coordination with the Secretary of Health and Human 
Services, to implement a plan to extend the requirements of the 
Mexico City Policy to ``global health assistance furnished by all 
departments or agencies'' to the extent allowable by law.
    To extend the Mexico City Policy as directed under the January 
23, 2017, Presidential Memorandum, the Secretary of State approved, 
on May 9, 2017, a plan to implement the manner in which U.S. 
Government Departments and Agencies will apply the provisions of the 
Mexico City Policy to foreign NGOs that receive U.S. funding for 
global health assistance. The plan, called ``Protecting Life in 
Global Health Assistance'' (PLGHA), expanded the application of the 
Mexico City Policy in three respects, to the extent allowable by 
law. First, it extended the policy to all affected Federal agencies. 
Second, it extended the policy to all global health assistance. 
Third, it required the extension of the policy to contracts in 
addition to Federal assistance.
    The objective of this proposed rule is to ensure contractors are 
aware of the requirement to comply with the PLGHA policy, pursuant 
to the PLGHA plan approved by the Secretary of State further to the 
January 23, 2017, Presidential memorandum.
    The President has broad discretion to set the terms and 
conditions on which the United States provides foreign assistance. 
The United States provides global health assistance through various 
Federal agencies, under the authorities granted to those Federal 
agencies, including the Foreign Assistance Act (FAA) (22 U.S.C. 2151 
et seq.). The Department of State and USAID, as well as other 
Federal agencies that receive foreign assistance funds from the 
Department of State and USAID, rely on the authorities under the 
FAA. Under the FAA, the President is authorized to furnish foreign 
assistance for voluntary population planning, health programs, and 
to promote economic or political stability ``on such terms and 
conditions as [the President] may determine.'' See, e.g., section 
104(b) of the FAA (22 U.S.C. 2151b(b)) (assistance for family 
planning and population growth); section 104(c)(1) of the FAA (22 
U.S.C. 2151b(c)(1)) (health assistance); section 531 of the FAA (22 
U.S.C. 2346) (assistance to promote economic or political 
stability). The President, through the issuance of the January 23, 
2017, Presidential Memorandum, has exercised his broad discretion to 
set the terms and conditions of U.S. foreign assistance relating to 
global health programs, including by applying the PLGHA policy to 
contracts.
    The PLGHA policy applies to foreign nongovernmental 
organizations (including contractors). Although U.S. entities are 
not themselves subject to the policy (not to perform or actively 
promote abortion as a method of family planning with any source of 
funds), they must agree to flow down the policy requirements to 
foreign nongovernmental organizations under their contracts.
    This proposed rule is not expected to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Analysis Act, 5 U.S.C. 601, et 
seq. U.S. contractors are not themselves subject to the policy (not 
to perform or actively promote abortion as a method of family 
planning with any source of funds), but they must agree to flow down 
the PLGHA requirements to subcontractors and ensure that foreign 
subcontractors comply with the policy. This rule applies to foreign 
prime contractors.
    Based on data available from FY2016-FY2018, we estimate that 
approximately 253 contractors would be affected by this rule. Of 
that we estimate that 45 small businesses would be affected; 
equating to 18 percent of the total contractors affected.
    This rule does impose new reporting, recordkeeping and other 
compliance requirements. The rule includes requirements for access 
to documents, records, and processes to conduct inspections for 
compliance purposes. U.S. contractors will be responsible for the 
oversight of their foreign subcontractors. The foreign contractors 
will be subject to this requirement. Instances of these requirements 
are--
    a. 52.225-XX(c)(2)(i) Inspection of documents and materials 
(foreign primes)--
    ``(c) Foreign prime contractors. This paragraph (c) applies only 
to foreign prime contractors, and does not affect any contractual 
rights between U.S. prime contractors and the U.S. Government:
    (2) The Contractor shall allow authorized representatives of the 
Government to, at any reasonable time, announced or unannounced, 
consistent with the terms of this contract--
    (i) Inspect the documents and materials maintained or prepared 
by the Contractor in the usual course of its operations that 
describe the health activities implemented by the Contractor, 
including reports, brochures, and service statistics'';
    b. 52.225-XX(j)(1)(ii)(A) Inspection of documents and materials 
(foreign subcontractors)--
    ``(j) Obligations regarding foreign subcontracts.
    (1) The Contractor shall ensure that foreign subcontractors at 
any tier that receive global health assistance funding agree to the 
following additional terms:
    (ii) The Contractor and authorized representatives of the 
Government may, at any reasonable time, announced or unannounced, 
consistent with the terms of this contract, perform any of the 
following:
    (A) Inspect the documents and materials maintained or prepared 
by the subcontractor in the usual course of its operations that 
describe the health activities of the subcontractor, including 
reports, brochures, and service statistics.''
    c. 52.225-XX(e) Consent to subcontract (all primes and 
subcontractors)--
    ``(e) Consent to subcontract. If the contract includes the 
clause at FAR 52.244-2, Subcontracts, and requires the Contractor to 
obtain consent prior to entering into a subcontract, then the 
Contractor shall provide to the Contracting Officer, in the consent 
request, a description of the due diligence performed by the 
Contractor on the subcontractor relating to the requirements in this 
clause.
    d. 52.225-XX(g)(2) Review of health program for violations (all 
primes and subcontractors)--
    ``(g) Government independent inquiries.
    (2) In the event that the Contractor or the Government has 
reason to believe that a foreign subcontractor may have violated the 
requirements of this clause, the Contractor shall review the health 
program of the foreign subcontractor to determine whether such a 
violation has occurred. The Contractor shall provide the Contracting 
Officer the results of the review.''
    e. 52.225-XX(j)(2) and (j)(3) Review of health program for 
violations (foreign subcontractors)--
    ``(j) Obligations regarding foreign subcontracts.
    (2) In the event that the Contractor or the Government has 
reason to believe that a foreign subcontractor may have violated the

[[Page 56554]]

requirements of this clause, the Contractor shall review the health 
program of the subcontractor to determine whether such a violation 
has occurred.
    (3) If the Contractor has reason to believe that the 
subcontractor has violated any requirement of this clause, the 
Contractor shall consult with the Contracting Officer and provide 
full cooperation prior to terminating the subcontract or determining 
that other corrective action is warranted.''
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules. DoD, GSA, and NASA were unable to identify any 
alternatives to the rule that would reduce the impact on small 
entities and still meet the requirements.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2018-002), 
in correspondence.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The 
proposed rule contains information collection requirements. 
Accordingly, the Regulatory Secretariat Division has submitted a 
request for approval of a new information collection requirement 
concerning FAR Case 2018-002, Protecting Life in Global Health 
Assistance to the Office of Management and Budget.
    A. Public reporting burden for this collection of information is 
estimated to average 35.8 hours 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: 253.
    * Responses per respondent: 4.3.
    * Total annual responses: 1,089.
    * Preparation hours per response: 35.8.
    * Total response burden hours: 38,992.
    B. Request for Comments Regarding Paperwork Burden.
    Submit comments, including suggestions for reducing this burden, 
not later than November 13, 2020 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, Regulatory Secretariat Division (MVCB), 1800 F Street 
NW, 2nd Floor, Washington, DC 20405-0001.
    Public comments are particularly invited on: Whether this 
collection of information is necessary for the proper performance of 
functions of the FAR, and will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.
    Requesters may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat Division 
(MVCB), 1800 F Street NW, 2nd Floor, Washington, DC 20405-0001. Please 
cite OMB Control Number 9000-00XX, Title, in all correspondence.
    The 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).

List of Subjects in 48 CFR Parts 1, 7, 25, 44, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 7, 
25, 44, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 7, 25, 44, and 52 
continues to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
2. In section 1.106, amend the table by adding an entry for ``52.225-
XX'' in numerical order to read as follows:


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *


------------------------------------------------------------------------
                                                           OMB  control
                       FAR segment                              No.
------------------------------------------------------------------------
 
                                * * * * *
52.225-XX...............................................       9000-XXXX
 
                                * * * * *
------------------------------------------------------------------------

PART 7--ACQUISITION PLANNING

0
3. Add section 7.10X to read as follows:


7.10X  Additional requirements for global health assistance 
acquisitions.

    When planning to procure supplies or services for global health 
assistance, the requiring activity is responsible for notifying the 
contracting officer, in writing, when the contract will be funded 
partially or wholly with global health assistance funding, as defined 
in 25.100X-4.

PART 25--FOREIGN ACQUISITION

0
4. Add section 25.100X to read as follows:


25.100X   Protecting Life in Global Health Assistance.


25.100X-1  Scope of section.

    This section implements the ``Protecting Life in Global Health 
Assistance'' policy approved by the Secretary of State on May 9, 2017, 
as directed by the Presidential Memorandum regarding The Mexico City 
Policy, dated January 23, 2017.


25.100X-2  Authority.

    (a) Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.).
    (b) Presidential Memorandum on the Mexico City Policy (Memorandum 
of January 23, 2017, 3 CFR, 2017 Comp., p. 435.).


25.100X-3  Applicability.

    This section applies to all executive agencies that implement 
programs or activities funded partially or wholly with global health 
assistance funding as defined in 25.100X-4.


25.100X-4   Definitions.

    As used in this section--
    Abortion as a method of family planning means abortion when it is 
for the purpose of spacing births. This includes, but is not limited 
to, abortions performed for the physical or mental health of the mother 
and abortions performed for fetal abnormalities, but does not include 
abortions performed if the life of the mother would be endangered if 
the fetus were carried to term, or abortions performed following rape 
or incest.
    Actively promote abortion as a method of family planning means for 
an

[[Page 56555]]

organization to commit resources, financial or other, in a substantial 
or continuing effort to increase the availability or use of abortion as 
a method of family planning.
    (1) This includes, but is not limited to, the following activities:
    (i) Operating a service-delivery site that provides, as part of its 
regular program, counseling, including advice and information, 
regarding the benefits and/or availability of abortion as a method of 
family planning;
    (ii) Providing advice that abortion as a method of family planning 
is an available option or encouraging women to consider abortion 
(passively responding to a question regarding where a safe, legal 
abortion may be obtained is not considered active promotion if a woman 
who is already pregnant specifically asks the question, she clearly 
states that she has already decided to have a legal abortion, and the 
healthcare provider reasonably believes that the ethics of the medical 
profession in the host country requires a response regarding where it 
may be obtained safely and legally);
    (iii) Lobbying a foreign government to legalize or make available 
abortion as a method of family planning or lobbying such a government 
to continue the legality of abortion as a method of family planning; 
and
    (iv) Conducting a public information campaign outside the United 
States (the 50 states, the District of Columbia, and outlying areas), 
regarding the benefits and/or availability of abortion as a method of 
family planning.
    (2) Excluded from this definition are referrals for abortion as a 
result of rape or incest, or if the life of the mother would be 
endangered if she were to carry the fetus to term. Also excluded from 
this definition is the treatment of injuries or illnesses caused by 
legal or illegal abortions, for example, post-abortion care.
    (3) Action by an individual acting in the individual's capacity to 
actively promote abortion as a method of family planning shall not be 
attributed to an organization with which the individual is associated, 
provided that the individual is neither on duty nor acting on the 
organization's premises, and the organization neither endorses nor 
provides financial support for the action and takes reasonable steps to 
ensure that he or she does not improperly represent that the individual 
is acting on behalf of the organization.
    Foreign contractor means a contractor or subcontractor organized or 
existing under the laws of a country other than the United States (the 
50 states, the District of Columbia, and outlying areas). This excludes 
public international organizations.
    Foreign nongovernmental organization means any nongovernmental 
organization or entity, whether non-profit or profit making, organized 
or existing under the laws of a country other than the United States 
(the 50 states, the District of Columbia, and outlying areas). This 
excludes public international organizations.
    Global health assistance funding is Federal funding used for 
international health activities that is authorized under the Foreign 
Assistance Act of 1961, and funded from the Global Health Programs; 
Economic Support Fund; or Assistance for Europe, Eurasia, and Central 
Asia appropriations, including successor appropriations, under the 
annual Department of State, Foreign Operations, and Related Programs 
Appropriations Act. Global health assistance funding excludes funding 
for--
    (1) Humanitarian assistance;
    (2) U.S. Agency for International Development's (USAID's) American 
Schools and Hospitals Abroad Program activities;
    (3) USAID's Food for Peace activities;
    (4) USAID's Water Supply and Sanitation activities reported under 
Program Area HL.8 or successor program under the Department of State's 
Foreign Assistance Standardized Program Structure; and
    (5) USAID's Vulnerable Children activities reported under Program 
Area ES 4.1 or successor program under the Department of State's 
Foreign Assistance Standardized Program Structure.
    Perform abortions means to operate a facility where abortions are 
provided as a method of family planning. Excluded from this definition 
is the treatment of injuries or illnesses caused by legal or illegal 
abortions, for example, post-abortion care.
    Provide financial support means to provide funding, from any 
source, to a foreign nongovernmental organization through a contract, 
subcontract, other written agreement or donation of funds; it does not 
include the provision of funding through contracts, subcontracts, or 
other written agreements for commercial items as defined under 2.101, 
except for commercial items to be used primarily to perform abortions 
as a method of family planning.
    Public international organization means an organization--
    (1) Designated as a public international organization under the 
International Organizations Immunities Act; or
    (2) Treated as a public international organization pursuant to the 
regulations or policies of an Executive agency.


25.100X-5   Policy.

    (a) The Protecting Life in Global Health Assistance policy is that 
executive agencies take appropriate actions to ensure that foreign 
nongovernmental organizations agree that they shall not perform or 
actively promote abortion as a method of family planning, nor provide 
financial support to any other foreign nongovernmental organization 
that conducts such activities, during the term of a contract funded 
with global health assistance funding. This policy applies to Federal 
assistance awards, as well as contracts containing the clause at 
52.225-XX, Protecting Life in Global Health Assistance. For more 
information about the Protecting Life in Global Health Assistance 
policy, see the U.S. Agency for International Development's (USAID) 
website at https://www.usaid.gov/global-health/legislative-policy-requirements.
    (b) To comply with the Protecting Life in Global Health Assistance 
policy, a foreign contractor or subcontractor is required to agree not 
to perform or actively promote abortion as a method of family planning 
or provide financial support to any other foreign nongovernmental 
organization that conducts such activities. U.S. contractors are 
required to flow this requirement down to all foreign subcontracts 
subject to this policy.


25.100X-6  Procedures.

    (a) When the requiring activity notifies the contracting officer in 
writing that global health assistance funding is to be used for the 
procurement (see 7.10X), the contracting officer shall include the 
clause at 52.225-XX, Protecting Life in Global Health Assistance 
prescribed at 25.100X-7;
    (b) When providing consent to subcontract with a foreign 
subcontractor in accordance with subpart 44.2, the contracting officer 
must ensure that the contractor has provided a description of the due 
diligence performed by the contractor on the subcontractor relating to 
the requirements in clause 52.225-XX (see 44.202-2(a)(14)).


25.100X-7   Contract clauses.

    (a) Insert the clause at 52.225-XX, Protecting Life in Global 
Health Assistance, in solicitations and contracts that--
    (1) Provide supplies or services for international health 
activities that are funded partially or wholly with global health 
assistance funding, including

[[Page 56556]]

contracts for technical assistance and training of foreign individuals 
or entities and services listed in 37.203(b)(1)-(6); and
    (2) Are performed partially or wholly outside the United States 
(the 50 states, the District of Columbia, and outlying areas).
    (b) The clause is not required to be used for--
    (1) Contracts at or below the micro purchase threshold, as defined 
in FAR 2.101;
    (2) Contracts for personal services with individuals; or
    (3) Contracts for the acquisition of commercial items.

PART 44--SUBCONTRACTING POLICIES AND PROCEDURES

0
5. Amend section 44.202-2 by adding paragraph (a)(14) to read as 
follows:


44.202-2   Considerations.

    (a) * * *
    (14) When the clause at 52.225-XX, Protecting Life in Global Health 
Assistance, is in the contract, has the contractor included a 
description of the due diligence performed on the subcontractor 
relating to the requirements of the clause.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Add section 52.225-XX to read as follows:


52.225-XX   Protecting Life in Global Health Assistance.

    As prescribed in 25.100X-7, insert the following clause:

Protecting Life in Global Health Assistance (DATE)

    (a) Definitions. As used in this clause-
    Abortion as a method of family planning means abortion when it 
is for the purpose of spacing births. This includes, but is not 
limited to, abortions performed for the physical or mental health of 
the mother and abortions performed for fetal abnormalities, but does 
not include abortions performed if the life of the mother would be 
endangered if the fetus were carried to term, or abortions performed 
following rape or incest.
    Actively promote abortion as a method of family planning means 
for an organization to commit resources, financial or other, in a 
substantial or continuing effort to increase the availability or use 
of abortion as a method of family planning.
    (1) This includes, but is not limited to, the following 
activities:
    (i) Operating a service-delivery site that provides, as part of 
its regular program, counseling, including advice and information, 
regarding the benefits and/or availability of abortion as a method 
of family planning;
    (ii) Providing advice that abortion as a method of family 
planning is an available option or encouraging women to consider 
abortion (passively responding to a question regarding where a safe, 
legal abortion may be obtained is not considered active promotion if 
a woman who is already pregnant specifically asks the question, she 
clearly states that she has already decided to have a legal 
abortion, and the healthcare provider reasonably believes that the 
ethics of the medical profession in the host country requires a 
response regarding where it may be obtained safely and legally);
    (iii) Lobbying a foreign government to legalize or make 
available abortion as a method of family planning or lobbying such a 
government to continue the legality of abortion as a method of 
family planning; and
    (iv) Conducting a public information campaign outside the United 
States (the 50 states, the District of Columbia, and outlying 
areas), regarding the benefits and/or availability of abortion as a 
method of family planning.
    (2) This does not include referrals for abortion as a result of 
rape or incest, or if the life of the mother would be endangered if 
she were to carry the fetus to term. Also excluded from this 
definition is the treatment of injuries or illnesses caused by legal 
or illegal abortions, for example, post-abortion care.
    (3) Action by an individual acting in the individual's capacity 
to actively promote abortion as a method of family planning shall 
not be attributed to an organization with which the individual is 
associated, provided that the individual is neither on duty nor 
acting on the organization's premises, and the organization neither 
endorses nor provides financial support for the action and takes 
reasonable steps to ensure that he or she does not improperly 
represent that the individual is acting on behalf of the 
organization.
    Foreign contractor means a contractor or subcontractor organized 
or existing under the laws of a country other than the United States 
(the 50 states, the District of Columbia, and outlying areas). This 
excludes public international organizations.
    Foreign nongovernmental organization means any nongovernmental 
organization or entity, whether nonprofit or profit making, 
organized or existing under the laws of a country other than the 
United States (the 50 states, the District of Columbia, and outlying 
areas). This excludes public international organizations.
    Full cooperation,
    (1) Means, at a minimum--
    (i) Disclosure to the Government information sufficient to 
identify the nature and extent of a violation;
    (ii) Providing timely and complete responses to Government 
auditors' and investigators' requests for documents and access to 
employees with information; and
    (iii) Cooperating fully in providing reasonable access to its 
facilities and staff (both inside and outside the U.S.) to allow 
contracting agencies and other responsible Federal agencies to 
conduct audits, investigations, or other actions to ascertain 
compliance with this clause.
    (2) Does not--
    (i) Foreclose any contractor rights arising in law, this 
regulation, or the terms of the contract;
    (ii) Require the Contractor to waive its attorney-client 
privilege or the protections afforded by the attorney work product 
doctrine;
    (iii) Require any officer, director, owner, employee, or agent 
of the Contractor, including a sole proprietor, to waive his or her 
attorney client privilege or Fifth Amendment rights; or
    (iv) Restrict the Contractor from--
    (A) Conducting an internal investigation; or
    (B) Defending a proceeding or dispute arising under the contract 
or related to a potential or disclosed violation.
    Global health assistance funding is Federal funding used for 
international health activities that is authorized under the Foreign 
Assistance Act of 1961, and funded from the Global Health Programs; 
Economic Support Fund; or Assistance for Europe, Eurasia, and 
Central Asia appropriations, including successor appropriations, 
under the annual Department of State, Foreign Operations, and 
Related Programs Appropriations Act. Global health assistance 
funding excludes funding for--
    (1) Humanitarian assistance;
    (2) U.S. Agency for International Development's (USAID's) 
American Schools and Hospitals Abroad Program activities;
    (3) USAID's Food for Peace activities;
    (4) USAID's Water Supply and Sanitation activities reported 
under Program Area HL.8 or successor program under the Department of 
State's Foreign Assistance Standardized Program Structure; and
    (5) USAID's Vulnerable Children activities reported under 
Program Area ES 4.1 or successor program under the Department of 
State's Foreign Assistance Standardized Program Structure.
    Parastatal means a foreign-government-owned organization 
operated as a commercial company or other organization, including 
nonprofits, or enterprises in which foreign governments or foreign 
agencies have a controlling interest.
    Perform abortions means to operate a facility where abortions 
are provided as a method of family planning. Excluded from this 
definition is the treatment of injuries or illnesses caused by legal 
or illegal abortions, for example, post-abortion care.
    Provide financial support means to provide funding, from any 
source, to a foreign nongovernmental organization through a 
contract, subcontract, other written agreement or donation of funds; 
it does not include the provision of funding through contracts, 
subcontracts, or other written agreements for commercial items as 
defined under 2.101, except for commercial items to be used 
primarily to perform abortions as a method of family planning.
    Public international organization means an organization--
    (1) Designated as a public international organization under the 
International Organizations Immunities Act; or
    (2) Treated as a public international organization pursuant to 
the regulations or policies of an Executive agency.

[[Page 56557]]

    (b) Prime contractor. The Contractor shall not subcontract for 
supplies or services using global health assistance funding under 
this contract with a foreign contractor unless the subcontractor at 
any tier agrees, by entering into such subcontract, that it shall 
not, during the term of the subcontract--
    (1) Perform or actively promote abortion as a method of family 
planning, outside the United States (the 50 states, the District of 
Columbia, and outlying areas); or
    (2) Provide financial support to any other foreign 
nongovernmental organization that conducts such activities.
    (c) Foreign prime contractors. This paragraph (c) applies only 
to foreign prime contractors, and does not affect any contractual 
rights between U.S. prime contractors and the U.S. Government:
    (1) The Contractor shall not, during the term of this contract--
    (i) Perform or actively promote abortion as a method of family 
planning outside the United States (the 50 states, the District of 
Columbia, and outlying areas); or
    (ii) Provide financial support to any other foreign 
nongovernmental organization that conducts such activities.
    (2) The Contractor shall allow authorized representatives of the 
Government to, at any reasonable time, announced or unannounced, 
consistent with the terms of this contract--
    (i) Inspect the documents and materials maintained or prepared 
by the Contractor in the usual course of its operations that 
describe the health activities implemented by the Contractor, 
including reports, brochures, and service statistics;
    (ii) Observe the health activities conducted by the Contractor;
    (iii) Consult with healthcare personnel of the Contractor; and
    (iv) Obtain a copy of audited financial statements or reports of 
the Contractor; as applicable.
    (3) The Government shall terminate the performance of work under 
this contract in accordance with the termination clause of this 
contract for any violation of this clause unless the Government 
determines that other corrective action or remedy is warranted. In 
addition to other remedies available to the Government, the 
Contractor's failure to comply with the requirements of this clause 
may result in--
    (i) Suspension of contract payments until the Contractor has 
taken appropriate remedial action; and/or
    (ii) Suspension or debarment.
    (d) Subcontractor eligibility. When the Contractor is 
determining whether a foreign contractor is eligible for a 
subcontract with global health assistance funding under this 
contract, the action of separate nongovernmental organizations shall 
not be imputed to the subcontractor, unless, in the judgment of the 
Government, a separate nongovernmental organization is being used 
purposefully to avoid the requirements of the clause.
    (1) Separate nongovernmental organizations are those that have 
distinct legal existence in accordance with the laws of the 
countries in which they are organized. Foreign organizations that 
are separately organized shall not be considered separate if they 
are affiliates (see definition at FAR 2.101).
    (2) The Contractor may request the Government's approval to 
treat as separate the health activities of two or more 
organizations, which would be considered affiliates under paragraph 
(d)(1) of this clause.
    (3) In the event the Contractor makes a request under paragraph 
(d)(2) of this clause, the Contractor shall provide a written 
justification to the Government that the health activities of the 
organizations are sufficiently distinct to warrant not imputing the 
activity of one to the other.
    (e) Consent to subcontract. If the contract includes the clause 
at FAR 52.244-2, Subcontracts, and requires the Contractor to obtain 
consent prior to entering into a subcontract, then the Contractor 
shall provide to the Contracting Officer, in the consent request, a 
description of the due diligence performed by the Contractor on the 
subcontractor relating to the requirements in this clause.
    (f) Violations. Violations by the subcontractor of any 
requirement in this clause will be imputed to the Contractor only 
if--
    (1) The Contractor knowingly provides global health assistance 
funding in a subcontract under this contract to a foreign contractor 
that performs or actively promotes abortion as a method of family 
planning;
    (2) The Contractor failed to make reasonable due diligence 
efforts prior to providing global health assistance funding in a 
subcontract under this contract to a foreign contractor, and the 
subcontractor did not abide by its contractual terms required in 
this clause; or
    (3) The Contractor knows or has reason to know, by virtue of the 
monitoring that the contractor is required to perform under the 
terms of this contract, that a subcontractor has violated any of the 
contract terms required by this clause, and the Contractor fails to 
terminate the subcontract or fails to take other appropriate 
corrective action.
    (g) Government independent inquiries. (1) The Government may 
make independent inquiries in the community served by a foreign 
contractor or subcontractor under this contract regarding whether it 
performs or actively promotes abortion as a method of family 
planning.
    (2) In the event that the Contractor or the Government has 
reason to believe that a foreign subcontractor may have violated the 
requirements of this clause, the Contractor shall review the health 
program of the foreign subcontractor to determine whether such a 
violation has occurred. The Contractor shall provide the Contracting 
Officer the results of the review.
    (h) Foreign Governments and parastatals. The Contractor may 
award a contract with global health assistance funding to a foreign 
government or parastatal even though the foreign government or 
parastatal includes abortion in its health program, provided that no 
global health assistance funding shall be used under this contract 
in support of the abortion activity of the foreign government or 
parastatal, and any funds transferred to the foreign government or 
parastatal shall be placed in a segregated account to ensure that 
such funds are not used to support the abortion activity of the 
foreign government or parastatal.
    (i) Affirmative duty exception. In the event of a conflict 
between a term of this clause and an affirmative duty of a 
healthcare provider required under local law to provide counseling 
about and referrals for abortion as a method of family planning, 
compliance with such law shall not trigger a violation of this 
clause.
    (j) Obligations regarding foreign subcontracts. (1) The 
Contractor shall ensure that foreign subcontractors at any tier that 
receive global health assistance funding agree to the following 
additional terms:
    (i) The subcontractor shall not, during the term of the 
subcontract
    (A) Perform or actively promote abortion as a method of family 
planning outside the United States (the 50 states, the District of 
Columbia, and outlying areas); or
    (B) Provide financial support to any other foreign 
nongovernmental organization that conducts such activities.
    (ii) The Contractor and authorized representatives of the 
Government may, at any reasonable time, announced or unannounced, 
consistent with the terms of this contract, perform any of the 
following:
    (A) Inspect the documents and materials maintained or prepared 
by the subcontractor in the usual course of its operations that 
describe the health activities of the subcontractor, including 
reports, brochures, and service statistics.
    (B) Observe health activities conducted by the subcontractor.
    (C) Consult with healthcare personnel of the subcontractor.
    (D) Obtain a copy of audited financial statements or reports of 
the subcontractor, as applicable.
    (2) In the event that the Contractor or the Government has 
reason to believe that a foreign subcontractor may have violated the 
requirements of this clause, the Contractor shall review the health 
program of the subcontractor to determine whether such a violation 
has occurred.
    (3) If the Contractor has reason to believe that the 
subcontractor has violated any requirement of this clause, the 
Contractor shall consult with the Contracting Officer and provide 
full cooperation prior to terminating the subcontract or determining 
that other corrective action is warranted.
    (k) Subcontracts. The Contractor shall insert the terms of this 
clause, except paragraphs (b), (c) and (e), in all subcontracts 
awarded with global health assistance funding at any tier except for 
subcontracts--
    (1) At or below the micro-purchase threshold, as defined at FAR 
2.101;
    (2) For personal services with individuals; or
    (3) For the acquisition of commercial items.
(End of Clause)
[FR Doc. 2020-17551 Filed 9-10-20; 1:30 pm]
BILLING CODE 6820-EP-P