Defense Federal Acquisition Regulation Supplement: Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region (DFARS Case 2023-D015), 73238-73240 [2023-23433]
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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations
unpriced change order for a foreign
military sale or a special access
program, the contracting officer shall
provide prior notice, through agency
channels, to the Office of the Principal
Director, Defense Pricing and
Contracting (Contract Policy) via email
at osd.pentagon.ousd-a-s.mbx.asda-dpc-contractpolicy@mail.mil.
PART 249—TERMINATION OF
CONTRACTS
46. Amend section 249.7000 by
revising paragraph (a)(1) to read as
follows:
■
(a) * * *
(1) The Letter of Agreement (LOA)
between the Department of Defence
Production (Canada) and the U.S. DoD,
‘‘Canadian Agreement’’ (for a copy of
the LOA or for questions on its
currency, contact the Office of the
Principal Director, Defense Pricing and
Contracting (Contract Policy), at
osd.pentagon.ousd-a-s.mbx.asda-dp-ccontractpolicy@mail.mil;
*
*
*
*
*
PART 250—EXTRAORDINARY
CONTRACTUAL ACTIONS AND THE
SAFETY ACT
[Amended]
47. Amend section 250.102–1–70 in
paragraph (b)(1) by removing ‘‘USD
(AT&L)’’ and adding ‘‘USD(A&S)’’ in its
place, and in paragraph (b)(2) by
removing ‘‘USD(AT&L)’’ and adding
‘‘USD(A&S)’’ in its place.
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.225–7040
[Amended]
48. Amend section 252.225–7040—
a. By removing the clause date ‘‘(OCT
2015)’’; and adding ‘‘(OCT 2023)’’ in its
place; and
■ b. In paragraph (g)(1) of the clause by
removing ‘‘USD (AT&L)’’ and adding
‘‘the Under Secretary of Defense
(Acquisition and Sustainment)’’ in its
place.
■
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■
[FR Doc. 2023–23435 Filed 10–24–23; 8:45 am]
BILLING CODE 6001–FR–P
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Defense Federal Acquisition
Regulation Supplement: Prohibition on
Certain Procurements From the
Xinjiang Uyghur Autonomous Region
(DFARS Case 2023–D015)
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments is provided,
as follows:
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
1. Strong Support for the Rule
Comment: The respondent strongly
supported the interim rule. The
respondent noted that the rule helps to
preserve the United States’ global
leadership on human rights and protects
national security.
Response: DoD acknowledges the
support for the rule.
Defense Acquisition Regulations
System
48 CFR Parts 212, 225, and 252
[Docket DARS–2023–0022]
AGENCY:
249.7000 Terminated contracts with
Canadian Commercial Corporation.
250.102–1–70
RIN 0750–AL88
to determine that forced labor from
XUAR will not be used in performance
of a contract resulting from the
solicitation.
One respondent submitted public
comments in response to the interim
rule. The interim rule has been
converted to a final rule, without
change.
DEPARTMENT OF DEFENSE
DoD is adopting as final,
without change, an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2023 that prohibits the use
of funds to knowingly procure any
products mined, produced, or
manufactured wholly or in part by
forced labor from the Xinjiang Uyghur
Autonomous Region of the People’s
Republic of China.
DATES: Effective October 30, 2023.
FOR FURTHER INFORMATION CONTACT:
Kimberly Bass, telephone 703–717–
3446.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD published an interim rule in the
Federal Register at 87 FR 76980 on
December 16, 2022, to implement
section 848 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) FY 2022 (Pub. L. 117–81).
DoD subsequently published an interim
rule in the Federal Register at 88 FR
37794 on June 9, 2023, to implement
section 855 of the NDAA for FY 2023
(Pub. L. 117–263). Section 855 repealed
section 848 of the NDAA for FY 2022,
including the requirement for a
certification from offerors for contracts
with DoD stating the offeror has made
a good faith effort to determine that
forced labor from the Xinjiang Uyghur
Autonomous Region of the People’s
Republic of China (XUAR) was not or
will not be used in the performance of
a contract. Section 855 requires offerors
or awardees of a DoD contract to make
a good faith effort to determine that
forced labor from XUAR will not be
used in performance of a DoD contract.
The interim rule required offerors to
represent, by submission of an offer,
that they have made a good faith effort
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2. Supply Chain
Comment: The respondent relayed
concerns regarding implementation of
the interim rule that requires offerors to
make a good faith effort to gain full
knowledge of their entire supply chain,
including the procurement of
commercial items and components. The
respondent noted the Chinese economy
can be opaque and further conveyed it
can be difficult for prime contractors to
obtain accurate supplier information,
especially if responses were required
within an accelerated timeframe.
Additionally, further down the supply
chain (i.e., subcontractors, vendors, and
other suppliers at all tiers), including for
the procurement of commercial items
and components, it can be exceedingly
difficult for prime contractors to obtain
accurate information.
Response: There are no exceptions to
the requirements that offerors or DoD
contractors make a good faith effort to
determine that forced labor from XUAR
will not be used in the performance of
the DoD contract. DoD has determined
to make this law applicable to contracts
for the acquisition of commercial
services and commercial products,
including commercially available offthe-shelf (COTS) items, in order to
promote the overarching public policy,
except products or services purchased
using the Governmentwide commercial
purchase card or the Standard Form
(SF) 44, Purchase Order-Invoice
Voucher.
3. Additional Definition
Comment: A respondent stated that in
the background information of the rule,
DoD should also define the term
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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations
‘‘knowingly procure’’ consistent with
what DoD officials must do to comply
with that requirement.
Response: The final rule as
implemented is in accordance with
section 855 of the NDAA for FY 2023,
10 U.S.C. 2496(b), and 10 U.S.C. 4661.
Consequently, there is no definition in
the rule for the term ‘‘knowingly
procure’’. The rule as implemented
complies with all definitions as outlined
in the applicable statutes.
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4. Good Faith Effort
Comment: The respondent identified
the policy implementation of section
889 of the NDAA for FY 2019 and urged
adoption of the language similar to the
provision as implemented at Federal
Acquisition Regulation 52.204–26,
Covered Telecommunications
Equipment or Services-Representation,
that required offerors to provide
representation utilizing a standard of
‘‘reasonable inquiry’’ (although section
889 is outside the scope of the statutory
requirements of this rule). The
respondent recommended that DoD
should use the standard of ‘‘reasonable
inquiry’’ in the place of the standard of
a good faith effort as it specifically
pertains to a contractor’s representation
that no products associated with forced
labor from XUAR are present in its offer
or during performance under a contract.
Response: The rule implements
section 855 of the NDAA for FY 2023,
which requires DoD to issue policy to
require that an offeror or awardee of a
DoD contract make a good faith effort to
determine that forced labor from XUAR
will not be used. Section 855
specifically requires use of the standard
of a good faith effort. The final rule as
written is consistent with the
requirements of section 855.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold, for Commercial Services,
and for Commercial Products,
Including COTS Items
The interim rule amended the
solicitation provision at DFARS
252.225–7059, Prohibition on Certain
Procurements from the Xinjiang Uyghur
Autonomous Region–Representation,
and the contract clause at DFARS
252.225–7060, Prohibition on Certain
Procurements from the Xinjiang Uyghur
Autonomous Region. The clause at
DFARS 252.225–7060 is prescribed for
use in solicitations and contracts
utilizing funds appropriated or
otherwise made available for any fiscal
year, including solicitations using FAR
part 12 procedures for the acquisition of
commercial services and commercial
products including COTS items.
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15:56 Oct 24, 2023
Jkt 262001
Consistent with the determination that
DoD made with regard to the
application of the requirements of
section 855 of the NDAA for FY 2023,
the provision at DFARS 252.225–7059
and the clause at DFARS 252.225–7060
apply to contracts valued at or below
the simplified acquisition threshold
(SAT) and to the acquisition of
commercial services and commercial
products, including COTS items, as
defined at FAR 2.101. For an
explanation of the rationale for DoD’s
determination, see the interim rule
published in the Federal Register at 88
FR 37794 on June 9, 2023.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, as amended.
V. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. and is summarized as follows:
This rule is necessary to finalize an
interim rule that amended the DFARS to
implement section 855 of the National
Defense Authorization act (NDAA) for
Fiscal Year (FY) 2023 (Pub. L. 117–263).
Section 855 prohibits the use of DoD
funds for any fiscal year to knowingly
procure any products mined, produced,
or manufactured wholly or in part by
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73239
forced labor from the Xinjiang Uyghur
Autonomous Region of the People’s
Republic of China (XUAR). Section 855
requires offerors or awardees of a DoD
contract to make a good faith effort to
determine that forced labor from XUAR
will not be used in the performance of
a DoD contract. In addition, section 855
repeals section 848 of the NDAA for FY
2022 (Pub. L. 117–81), which required
a certification from offerors that they
had made a good faith effort to
determine that forced labor from XUAR
was not or will not be used in the
performance of a DoD contract.
The objective of the rule is to
implement the prohibition and the
requirement for offerors or contractors
to make a good faith effort to determine
that forced labor from XUAR will not be
used in the performance of a DoD
contract.
No public comments were received in
response to the initial regulatory
flexibility analysis.
DoD reviewed data obtained from the
Federal Procurement Data System for
FY 2020, 2021, and 2022 for DoD
purchases of supplies or end products
valued above the micro-purchase
threshold, including commercial
products and commercially available
off-the-shelf items. DoD made an
average of 374,735 awards to 16,122
unique entities, of which 154,515
awards were made to 12,187 unique
small entities. In addition to the small
entities that received awards, DoD
estimates there were approximately
621,718 unsuccessful offerors. Note that
the unsuccessful offerors are not unique
entities; in other words, a single entity
may have been counted more than once
as an unsuccessful offeror. The rule
applies to successful offerors that
receive awards and unsuccessful
offerors.
The rule does not require any new
reporting or recordkeeping.
There are no known significant
alternative approaches to the rule that
would meet the requirements of the
statute.
VII. Paperwork Reduction Act
This rule does not contain any
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).
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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations
and preventive maintenance or repair
and facilities maintenance. The rule also
establishes the criteria under which
foreign workers or foreign contractors
may be used to perform corrective and
preventive maintenance or repair or
facilities maintenance on a naval vessel.
DoD published a proposed rule in the
Federal Register at 88 FR 17360 on
March 22, 2023, to revise the DFARS to
implement section 1025 of the NDAA
for FY 2021. One respondent submitted
a public comment in response to the
proposed rule.
List of Subjects in 48 CFR Parts 212,
225, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Accordingly, the interim rule
amending 48 CFR parts 212, 225, and
252, which was published at 88 FR
37794 on June 9, 2023, is adopted as
final without change.
■
[FR Doc. 2023–23433 Filed 10–24–23; 8:45 am]
BILLING CODE 6001–FR–P
II. Discussion and Analysis
DoD reviewed the public comment in
the development of the final rule. A
discussion of the comment is provided,
as follows:
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
A. Summary of Significant Changes
48 CFR Part 225
[Docket DARS–2023–0006]
No changes are made to the final rule
as a result of public comments.
RIN 0750–AL39
B. Analysis of Public Comment
Defense Federal Acquisition
Regulation Supplement: Restrictions
on Overhaul and Repair of Naval
Vessels in Foreign Shipyards (DFARS
Case 2021–D021)
Comment: A respondent provided
comments with overall support of the
rule and stated it would save money and
reduce the need for supplies and
preventative maintenance on ships in
foreign shipyards.
Response: DoD acknowledges the
respondent’s support for the rule.
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
C. Other Changes
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2021 that restricts overhaul
and repair of a naval vessel in a
shipyard outside the United States or
Guam.
SUMMARY:
DATES:
Kimberly Bass, telephone 703–717–
3446.
SUPPLEMENTARY INFORMATION:
IV. Expected Impact of the Rule
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I. Background
DoD is issuing a final rule amending
the DFARS to implement section 1025
of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2021
(Pub. L. 116–283), which amends 10
U.S.C. 8680(a) to restrict the overhaul or
repair of a naval vessel in a shipyard
outside the United States or Guam. The
restriction does not apply to voyage
repairs or to repairs required for damage
sustained due to hostile actions or
interventions. In addition, the
restriction does not apply to a naval
vessel classified as a littoral combat ship
operating on deployment for corrective
15:56 Oct 24, 2023
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III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial
Products, Including Commercially
Available Off-the-Shelf Items, and
Commercial Services
This rule does not create any new
solicitation provisions or contract
clauses. It does not impact any existing
solicitation provisions or contract
clauses or prescriptions for their use.
Effective October 30, 2023.
FOR FURTHER INFORMATION CONTACT:
VerDate Sep<11>2014
Minor editorial changes are made in
paragraph (b) of DFARS 225.7013–2 to
comply with drafting conventions.
Currently, DFARS 225.7013 includes
the restrictions on the construction or
repair of vessels in foreign shipyards.
This rule adds the exception for repairs
necessary to correct damage sustained
due to hostile actions or interventions
and for corrective and preventive
maintenance or repair and facilities
maintenance on naval vessels classified
as littoral combat ships operating on
deployment. Under these exceptions,
the repairs or maintenance described
above may be performed in a shipyard
outside the United States or Guam in
accordance with 10 U.S.C. 8680(a). The
rule also specifies the authorized use of
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foreign workers under certain
conditions when a determination is
made by the Secretary of the Navy, who
cannot further delegate the authority to
make such a determination.
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 not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, as amended.
VI. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VII. Regulatory Flexibility Act
A final regulatory flexibility analysis
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. and is summarized as follows:
DoD is issuing a final rule amending
the DFARS to implement section 1025
of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2021
(Pub. L. 116–283). Section 1025 amends
10 U.S.C. 8680(a) to restrict the overhaul
or repair of a naval vessel in a shipyard
outside the United States or Guam,
unless the repairs are: (1) voyage repairs
or repairs necessary to correct damage
sustained due to hostile actions or
interventions; or (2) to a naval vessel
classified as a littoral combat ship
operating on deployment for corrective
and preventive maintenance or repair
and facilities maintenance. The final
rule also establishes that: (1) foreign
workers may not be used to perform
corrective and preventive maintenance
or repair on a naval vessel unless the
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]]>Agencies
[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Rules and Regulations]
[Pages 73238-73240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23433]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
[Docket DARS-2023-0022]
RIN 0750-AL88
Defense Federal Acquisition Regulation Supplement: Prohibition on
Certain Procurements From the Xinjiang Uyghur Autonomous Region (DFARS
Case 2023-D015)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is adopting as final, without change, an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement a section of the National Defense Authorization Act for
Fiscal Year 2023 that prohibits the use of funds to knowingly procure
any products mined, produced, or manufactured wholly or in part by
forced labor from the Xinjiang Uyghur Autonomous Region of the People's
Republic of China.
DATES: Effective October 30, 2023.
FOR FURTHER INFORMATION CONTACT: Kimberly Bass, telephone 703-717-3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register at 87 FR
76980 on December 16, 2022, to implement section 848 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) FY 2022 (Pub. L.
117-81). DoD subsequently published an interim rule in the Federal
Register at 88 FR 37794 on June 9, 2023, to implement section 855 of
the NDAA for FY 2023 (Pub. L. 117-263). Section 855 repealed section
848 of the NDAA for FY 2022, including the requirement for a
certification from offerors for contracts with DoD stating the offeror
has made a good faith effort to determine that forced labor from the
Xinjiang Uyghur Autonomous Region of the People's Republic of China
(XUAR) was not or will not be used in the performance of a contract.
Section 855 requires offerors or awardees of a DoD contract to make a
good faith effort to determine that forced labor from XUAR will not be
used in performance of a DoD contract. The interim rule required
offerors to represent, by submission of an offer, that they have made a
good faith effort to determine that forced labor from XUAR will not be
used in performance of a contract resulting from the solicitation.
One respondent submitted public comments in response to the interim
rule. The interim rule has been converted to a final rule, without
change.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments is provided, as follows:
1. Strong Support for the Rule
Comment: The respondent strongly supported the interim rule. The
respondent noted that the rule helps to preserve the United States'
global leadership on human rights and protects national security.
Response: DoD acknowledges the support for the rule.
2. Supply Chain
Comment: The respondent relayed concerns regarding implementation
of the interim rule that requires offerors to make a good faith effort
to gain full knowledge of their entire supply chain, including the
procurement of commercial items and components. The respondent noted
the Chinese economy can be opaque and further conveyed it can be
difficult for prime contractors to obtain accurate supplier
information, especially if responses were required within an
accelerated timeframe. Additionally, further down the supply chain
(i.e., subcontractors, vendors, and other suppliers at all tiers),
including for the procurement of commercial items and components, it
can be exceedingly difficult for prime contractors to obtain accurate
information.
Response: There are no exceptions to the requirements that offerors
or DoD contractors make a good faith effort to determine that forced
labor from XUAR will not be used in the performance of the DoD
contract. DoD has determined to make this law applicable to contracts
for the acquisition of commercial services and commercial products,
including commercially available off-the-shelf (COTS) items, in order
to promote the overarching public policy, except products or services
purchased using the Governmentwide commercial purchase card or the
Standard Form (SF) 44, Purchase Order-Invoice Voucher.
3. Additional Definition
Comment: A respondent stated that in the background information of
the rule, DoD should also define the term
[[Page 73239]]
``knowingly procure'' consistent with what DoD officials must do to
comply with that requirement.
Response: The final rule as implemented is in accordance with
section 855 of the NDAA for FY 2023, 10 U.S.C. 2496(b), and 10 U.S.C.
4661. Consequently, there is no definition in the rule for the term
``knowingly procure''. The rule as implemented complies with all
definitions as outlined in the applicable statutes.
4. Good Faith Effort
Comment: The respondent identified the policy implementation of
section 889 of the NDAA for FY 2019 and urged adoption of the language
similar to the provision as implemented at Federal Acquisition
Regulation 52.204-26, Covered Telecommunications Equipment or Services-
Representation, that required offerors to provide representation
utilizing a standard of ``reasonable inquiry'' (although section 889 is
outside the scope of the statutory requirements of this rule). The
respondent recommended that DoD should use the standard of ``reasonable
inquiry'' in the place of the standard of a good faith effort as it
specifically pertains to a contractor's representation that no products
associated with forced labor from XUAR are present in its offer or
during performance under a contract.
Response: The rule implements section 855 of the NDAA for FY 2023,
which requires DoD to issue policy to require that an offeror or
awardee of a DoD contract make a good faith effort to determine that
forced labor from XUAR will not be used. Section 855 specifically
requires use of the standard of a good faith effort. The final rule as
written is consistent with the requirements of section 855.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold, for Commercial Services, and for Commercial Products,
Including COTS Items
The interim rule amended the solicitation provision at DFARS
252.225-7059, Prohibition on Certain Procurements from the Xinjiang
Uyghur Autonomous Region-Representation, and the contract clause at
DFARS 252.225-7060, Prohibition on Certain Procurements from the
Xinjiang Uyghur Autonomous Region. The clause at DFARS 252.225-7060 is
prescribed for use in solicitations and contracts utilizing funds
appropriated or otherwise made available for any fiscal year, including
solicitations using FAR part 12 procedures for the acquisition of
commercial services and commercial products including COTS items.
Consistent with the determination that DoD made with regard to the
application of the requirements of section 855 of the NDAA for FY 2023,
the provision at DFARS 252.225-7059 and the clause at DFARS 252.225-
7060 apply to contracts valued at or below the simplified acquisition
threshold (SAT) and to the acquisition of commercial services and
commercial products, including COTS items, as defined at FAR 2.101. For
an explanation of the rationale for DoD's determination, see the
interim rule published in the Federal Register at 88 FR 37794 on June
9, 2023.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, as amended.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
and is summarized as follows:
This rule is necessary to finalize an interim rule that amended the
DFARS to implement section 855 of the National Defense Authorization
act (NDAA) for Fiscal Year (FY) 2023 (Pub. L. 117-263). Section 855
prohibits the use of DoD funds for any fiscal year to knowingly procure
any products mined, produced, or manufactured wholly or in part by
forced labor from the Xinjiang Uyghur Autonomous Region of the People's
Republic of China (XUAR). Section 855 requires offerors or awardees of
a DoD contract to make a good faith effort to determine that forced
labor from XUAR will not be used in the performance of a DoD contract.
In addition, section 855 repeals section 848 of the NDAA for FY 2022
(Pub. L. 117-81), which required a certification from offerors that
they had made a good faith effort to determine that forced labor from
XUAR was not or will not be used in the performance of a DoD contract.
The objective of the rule is to implement the prohibition and the
requirement for offerors or contractors to make a good faith effort to
determine that forced labor from XUAR will not be used in the
performance of a DoD contract.
No public comments were received in response to the initial
regulatory flexibility analysis.
DoD reviewed data obtained from the Federal Procurement Data System
for FY 2020, 2021, and 2022 for DoD purchases of supplies or end
products valued above the micro-purchase threshold, including
commercial products and commercially available off-the-shelf items. DoD
made an average of 374,735 awards to 16,122 unique entities, of which
154,515 awards were made to 12,187 unique small entities. In addition
to the small entities that received awards, DoD estimates there were
approximately 621,718 unsuccessful offerors. Note that the unsuccessful
offerors are not unique entities; in other words, a single entity may
have been counted more than once as an unsuccessful offeror. The rule
applies to successful offerors that receive awards and unsuccessful
offerors.
The rule does not require any new reporting or recordkeeping.
There are no known significant alternative approaches to the rule
that would meet the requirements of the statute.
VII. Paperwork Reduction Act
This rule does not contain any 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).
[[Page 73240]]
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
0
Accordingly, the interim rule amending 48 CFR parts 212, 225, and 252,
which was published at 88 FR 37794 on June 9, 2023, is adopted as final
without change.
[FR Doc. 2023-23433 Filed 10-24-23; 8:45 am]
BILLING CODE 6001-FR-P
