Defense Federal Acquisition Regulation Supplement: Limitation on Certain Institutes of Higher Education (DFARS Case 2024-D023), 66338-66341 [2024-18111]
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66338
Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 / Proposed Rules
252.204–7021 Contractor Compliance With
the Cybersecurity Maturity Model
Certification Level Requirements.
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As prescribed in 204.7504(a), insert
the following clause:
Contractor Compliance With the
Cybersecurity Maturity Model Certification
Level Requirements (Date)
(a) Definitions. As used in this clause—
Controlled unclassified information means
information the Government creates or
possesses, or an entity creates or possesses
for or on behalf of the Government, that a
law, regulation, or Governmentwide policy
requires or permits an agency to handle using
safeguarding or dissemination controls (32
CFR part 2002.4(h)).
Current means, with regard to
Cybersecurity Maturity Model Certification
(CMMC)—
(1) Not older than 1 year for Level 1 selfassessments, with no changes in CMMC
compliance since the date of the assessment;
(2) Not older than 3 years for Level 2
certificates and self-assessments, with no
changes in CMMC compliance since the date
of the assessment;
(3) Not older than 3 years for Level 3
certificates, with no changes in CMMC
compliance since the date of the assessment;
and
(4) Not older than 1 year for affirmations
of continuous compliance with the security
requirements identified at 32 CFR part 170,
with no changes in CMMC compliance since
the date of the affirmation.
Cybersecurity Maturity Model Certification
means a framework for assessing a
contractor’s compliance with applicable
information security requirements (see 32
CFR part 170).
DoD unique identifier means an alphanumeric string of ten characters assigned
within the Supplier Performance Risk System
to each contractor assessment, with the first
two characters indicating the confidence
level of the assessment.
(b) Requirements. The Contractor shall—
(1)(i) Have a current CMMC certificate or
current CMMC self-assessment at the
following CMMC level, or higher: lllll
[Contracting Officer to fill in the required
CMMC level]; and
(ii) Consult 32 CFR part 170 related to
flowing down information in order to
establish the correct CMMC level
requirements for subcontracts and other
contractual instruments;
(2) Maintain the CMMC level required by
this contract for the duration of the contract
for all information systems, used in
performance of the contract, that process,
store, or transmit Federal contract
information (FCI) or controlled unclassified
information (CUI);
(3) Only process, store, or transmit data on
information systems that have a CMMC
certificate or CMMC self-assessment at the
CMMC level required by the contract, or
higher;
(4) Notify the Contracting Officer within 72
hours when there are any lapses in
information security or changes in the status
of CMMC certificate or CMMC selfassessment levels during performance of the
contract;
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(5) Complete and maintain on an annual
basis, or when changes occur in CMMC
compliance status (see 32 CFR part 170), an
affirmation of continuous compliance with
the security requirements associated with the
CMMC level required in paragraph (b)(1) of
this clause in the Supplier Performance Risk
System (SPRS) (https://piee.eb.mil) for each
DoD unique identifier (DoD UID) applicable
to each of the contractor information systems
that process, store, or transmit FCI or CUI
and that are used in performance of the
contract; and
(6) Ensure all subcontractors and suppliers
complete and maintain on an annual basis,
or when changes occur in CMMC compliance
status (see 32 CFR part 170), an affirmation
of continuous compliance with the security
requirements associated with the CMMC
level required for the subcontract or other
contractual instrument for each of the
contractor information systems that process,
store, or transmit FCI or CUI and that are
used in performance of the contract.
(c) Reporting. The Contractor shall—
(1) Submit to the Contracting Officer the
DoD UID(s) issued by SPRS for contractor
information systems that will process, store,
or transmit FCI or CUI during performance of
the contract;
(2) Enter into SPRS the results of selfassessment(s) for each DoD UID applicable to
each of the contractor information systems
that process, store, or transmit FCI or CUI
and that are used in performance of the
contract; and
(3) Report to the Contracting Officer any
changes to the list of DoD UIDs applicable to
each of the contractor information systems
that process, store, or transmit FCI or CUI
and that are used in performance of the
contract.
(d) Subcontracts. The Contractor shall—
(1) Insert the substance of this clause,
including this paragraph (d), and exclude
paragraphs (b)(5) and (c), in subcontracts and
other contractual instruments, including
those for the acquisition of commercial
products and commercial services, excluding
commercially available off-the-shelf items,
when there is a requirement under the
subcontract or similar contractual instrument
for a CMMC level; and
(2) Prior to awarding a subcontract or other
contractual instrument, ensure that the
subcontractor has a current CMMC certificate
or current CMMC self-assessment at the
CMMC level that is appropriate for the
information that is being flowed down to the
subcontractor.
and DoD unique identifier have the meaning
given in the Defense Federal Acquisition
Regulation Supplement 252.204–7021,
Contractor Compliance With the
Cybersecurity Maturity Model Certification
Level Requirements, clause of this
solicitation.
(b)(1) Cybersecurity Maturity Model
Certification (CMMC) level. The CMMC
certificate or CMMC self-assessment level
required by this solicitation is: lllll
[Contracting Officer insert: CMMC Level 1
self-assessment; CMMC Level 2 certificate or
CMMC self-assessment; or CMMC Level 3
certificate]. This CMMC certificate or CMMC
self-assessment level, or higher, is required
prior to award for each contractor
information system that will process, store,
or transmit Federal contract information
(FCI) or controlled unclassified information
(CUI) during performance of the contract.
(2) The apparently successful offeror will
not be eligible for award of a contract, task
order, or delivery order resulting from this
solicitation if the apparently successful
offeror does not have the results of a current
CMMC certificate or self-assessment entered
in the Supplier Performance Risk System
(SPRS) (https://piee.eb.mil) at the CMMC
level required by paragraph (b)(1) of this
provision and an affirmation of continuous
compliance with the security requirements
identified at 32 CFR part 170 in SPRS for
each of the contractor information systems
that will process, store, or transmit FCI or
CUI and that will be used in performance of
a contract resulting from this solicitation.
(c) DoD unique identifiers. At the request
of the Contracting Officer, the apparently
successful offeror shall provide the DoD
unique identifier(s) issued by SPRS for each
contractor information system that will
process, store, or transmit FCI or CUI during
performance of a contract, task order, or
delivery order resulting from this solicitation.
The DoD unique identifier(s) are provided in
SPRS after the Offeror enters the results of
self-assessment(s) for each such information
system.
(End of clause)
■ 6. Add section 252.204–7YYY to read
as follows:
48 CFR Parts 209 and 252
(End of provision)
[FR Doc. 2024–18110 Filed 8–14–24; 8:45 am]
BILLING CODE 6001–FR–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
[Docket DARS–2024–0025]
RIN 0750–AM20
252.204–7YYY Notice of Cybersecurity
Maturity Model Certification Level
Requirements.
As prescribed in 204.7504(b) use the
following provision:
Notice of Cybersecurity Maturity Model
Certification Level Requirements (Date)
(a) Definitions. As used in this provision,
controlled unclassified information, current,
Cybersecurity Maturity Model Certification,
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Defense Federal Acquisition
Regulation Supplement: Limitation on
Certain Institutes of Higher Education
(DFARS Case 2024–D023)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
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Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 / Proposed Rules
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement sections of the National
Defense Authorization Act for Fiscal
Year 2024, which amend a section of the
National Defense Authorization Act for
Fiscal Year 2021 that provides for the
limitation of funds, authorized to be
appropriated or otherwise made
available for any fiscal year for DoD, to
be provided to an institution of higher
education that hosts a Confucius
Institute.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
October 15, 2024, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2024–D023,
using either of the following methods:
Æ Federal eRulemaking Portal:
https://www.regulations.gov. Search for
DFARS Case 2024–D023. Select
‘‘Comment’’ and follow the instructions
to submit a comment. Please include
‘‘DFARS Case 2024–D023’’ on any
attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2024–D023 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT:
Kimberly Bass, telephone 703–717–
3446.
SUPPLEMENTARY INFORMATION:
waive the funds limitation. There were
no public comments submitted in
response to the interim rule.
Section 1044 of the NDAA for FY
2024 amends section 1062(d) of the
NDAA for FY 2021 by revising the
definition of ‘‘Confucius Institute’’ as
any program that receives funding or
support from the Chinese International
Education Foundation, the Center for
Language Exchange Cooperation of the
Ministry of Education of the People’s
Republic of China, or any cultural
institute funded by the government of
the People’s Republic of China.
Section 1045 of the NDAA for FY
2024 amends section 1062(b) of the
NDAA for FY 2021 to add a termination
date of October 1, 2026, for the authority
to issue a waiver.
I. Background
DoD is proposing to revise the DFARS
to implement sections 1044 and 1045 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2024 (Pub.
L. 118–31), which amend section 1062
of the NDAA for FY 2021 (Pub. L. 116–
283). DoD published an interim rule in
the Federal Register at 88 FR 67607 on
September 29, 2023, under DFARS Case
2021–D023 to implement section 1062
of the NDAA for FY 2021. Section 1062
provides that none of the funds
authorized to be appropriated or
otherwise made available for any fiscal
year for DoD may be provided to an
institution of higher education that
hosts a Confucius Institute, defined as a
cultural institute directly or indirectly
funded by the government of the
People’s Republic of China. In addition,
section 1062 provided the authority to
This proposed rule at DFARS
209.170–3 adds a termination date of
October 1, 2026, for the authority to
issue a waiver. Currently, the funds
limitation with respect to an institution
of higher education can be waived by
the Office of the Under Secretary of
Defense for Research and Engineering
(OUSD(R&E)). DFARS 209.170–3
addresses the OUSD(R&E), Confucius
Institute Waiver Program procedures.
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SUMMARY:
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II. Discussion and Analysis
No respondents submitted public
comments in response to the interim
rule published at 88 FR 67607 on
September 29, 2023.
A. New Definition
This proposed rule under DFARS
Case 2024–D023 includes revisions to
the definition of ‘‘Confucius Institute’’
at DFARS 209.170–1. ‘‘Confucius
Institute’’ means any program that
receives funding or support from the
Chinese International Education
Foundation, the Center for Language
Exchange Cooperation of the Ministry of
Education of the People’s Republic of
China, or any cultural institute funded
by the government of the People’s
Republic of China.
B. Waiver of Funds Limitation
C. Solicitation Provision
The solicitation provision at DFARS
252.209–7011, Representation for
Restriction on the Use of Certain
Institutions of Higher Education, is
proposed to be amended to include
conforming changes.
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66339
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Products, Including Commercially
Available Off-the-Shelf (COTS) Items,
and Commercial Services
This rule proposes to amend the
solicitation provision at DFARS
252.209–7011, Representation for
Restriction on the Use of Certain
Institutions of Higher Education. The
provision at DFARS 252.209–7011 is
prescribed at DFARS 209.170–4 for use
in solicitations for acquisitions to an
institution of higher education,
including solicitations using Federal
Acquisition Regulation (FAR) part 12
procedures for the acquisition of
commercial products, including COTS
items, and commercial services. DoD
does intend to apply the proposed rule
to contracts at or below the SAT, to
contracts for the acquisition of
commercial products including COTS
items, and for the acquisition of
commercial services.
A. Applicability to Contracts at or Below
the Simplified Acquisition Threshold
41 U.S.C. 1905 governs the
applicability of laws to contracts or
subcontracts in amounts not greater
than the simplified acquisition
threshold. It is intended to limit the
applicability of laws to such contracts or
subcontracts. 41 U.S.C. 1905 provides
that if a provision of law contains
criminal or civil penalties, or if the
Federal Acquisition Regulatory Council
makes a written determination that it is
not in the best interest of the Federal
Government to exempt contracts or
subcontracts at or below the SAT, the
law will apply to them. The Principal
Director, Defense Pricing, Contracting,
and Acquisition Policy (DPCAP), is the
appropriate authority to make
comparable determinations for
regulations to be published in the
DFARS, which is part of the FAR system
of regulations. DoD does intend to make
that determination. Therefore, this
proposed rule will apply at or below the
simplified acquisition threshold.
B. Applicability to Contracts for the
Acquisition of Commercial Products
Including COTS Items and for the
Acquisition of Commercial Services
10 U.S.C. 3452 exempts contracts and
subcontracts for the acquisition of
commercial products, including COTS
items, and commercial services from
provisions of law enacted after October
13, 1994, unless the Under Secretary of
Defense (Acquisition and Sustainment)
(USD(A&S)) makes a written
determination that it would not be in
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Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 / Proposed Rules
the best interest of DoD to exempt
contracts for the procurement of
commercial products and commercial
services from the applicability of the
provision or contract requirement,
except for a provision of law that—
• Provides for criminal or civil
penalties;
• Requires that certain articles be
bought from American sources pursuant
to 10 U.S.C. 4862 or that strategic
materials critical to national security be
bought from American sources pursuant
to 10 U.S.C. 4863; or
• Specifically refers to 10 U.S.C. 3452
and states that it shall apply to contracts
and subcontracts for the acquisition of
commercial products (including COTS
items) and commercial services.
Sections 1044 and 1045 of the NDAA
for FY 2024 do not impose criminal or
civil penalties, do not require purchase
pursuant to 10 U.S.C. 4862 or 4863, and
do not refer to 10 U.S.C. 3452.
Therefore, sections 1044 and 1045 will
not apply to the acquisition of
commercial services or commercial
products including COTS items unless a
written determination is made. Due to
delegations of authority, the Principal
Director, DPCAP is the appropriate
authority to make this determination.
DoD intends to make that
determination to apply this statute to
the acquisition of commercial products
including COTS items and to the
acquisition of commercial services.
Therefore, this proposed rule will apply
to the acquisition of commercial
products including COTS items and to
the acquisition of commercial services.
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C. Determinations
To ensure compliance with the
limitation on the use of funds, the
proposed rule must apply to all
contracts with institutions of higher
education. An exception for acquisitions
at or below the SAT, for the acquisition
of commercial products including COTS
items, or for the acquisition of
commercial services would exclude the
contracts intended to be covered by the
law, thereby undermining the
overarching public policy purpose of
the law and the associated statutory
funds limitation.
IV. Expected Impact of the Rule
Although section 1044 of the NDAA
for FY 2024 broadened the definition of
Confucius Institute, DoD expects there
will be no change to the number of
offerors impacted by the representation
requirement. Research and data analysis
by DoD subject matter experts has not
revealed any activity that would
constitute a Confucius Institute as
defined in section 1044. However,
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DoD’s process of outreach to institutions
is ongoing, in an effort to identify any
institutes meeting the new definition
being hosted by any U.S. institution of
higher education. If it is determined an
institution of higher education is
hosting an institute meeting the new
definition of Confucius Institute, and if
the institute intends to continue
operating, the prohibition will be
applied accordingly. Consequently, de
minimis associated burden exists since
the proposed rule still only requires the
prospective offeror, when submitting an
offer in response to a solicitation, to
represent compliance with the
requirements of section 1062 of the
NDAA for FY 2021 as amended by
sections 1044 and 1045 of the NDAA for
FY 2024. Data from the Federal
Procurement Data System indicate that
less than 10 unique entities awarded
DoD contracts in fiscal years 2021
through 2023 met the definition of an
institution of higher education; none of
those entities hosted a Confucius
Institute as newly defined.
This proposed rule also includes the
addition of the termination date for the
authority to waive the funds limitation.
As provided in section 1045 of the
NDAA for FY 2024, the waiver authority
will end on October 1, 2026, and any
waivers issued prior to that date will no
longer be effective as of October 1, 2026.
To date, DoD has not issued any waivers
to the funds limitation, and DoD does
not anticipate issuing any waivers on or
before October 1, 2026.
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. Regulatory Flexibility Act
DoD does not expect this proposed
rule, when finalized, to have a
significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the funds limitation affects a
very limited number of offerors and,
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therefore, has a limited impact.
However, an initial regulatory flexibility
analysis has been performed and is
summarized as follows:
DoD is proposing to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to revise the
definition of Confucius Institute and to
implement an end date for the
associated waiver authority. The DFARS
currently requires that none of the funds
authorized to be appropriated or
otherwise made available for any fiscal
year for DoD may be provided to an
institution of higher education that
hosts a Confucius Institute. Currently,
this prohibition may be waived.
The objective of the rule is to
implement sections 1044 and 1045 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2024 (Pub.
L. 118–31), which is the legal basis for
the rule. Section 1044 amends section
1062(d) of the NDAA for FY 2021 by
revising the definition of ‘‘Confucius
Institute’’ to mean any program that
receives funding or support from the
Chinese International Education
Foundation or the Center for Language
Exchange Cooperation of the Ministry of
Education of the People’s Republic of
China, or any cultural institute funded
by the Government of the People’s
Republic of China. Section 1045 of the
NDAA for FY 2024 amends section
1062(b) of the NDAA for FY 2021 to add
a termination date of October 1, 2026,
for the authority to issue a waiver.
To assess the potential impact, the
Federal Procurement Data System
(FPDS) was queried for FY 2021, FY
2022, and FY 2023 for DoD contracts
and purchase orders, including those for
commercial products and commercial
services, awarded to institutions of
higher education that meet the
definition in 20 U.S.C. 1002. The FPDS
data reflect a total of 104 contract
awards to 9 unique entities over the
entire three fiscal years. All awards
were made to other than small entities.
Entities in FPDS categorized as higherlevel institutions of education are
designated only as other than small
entities.
This rule does not include any new
reporting, recordkeeping, or other
compliance requirements for small
entities, unless they are associated with
an institution of higher education that
hosts a Confucius Institute.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known significant
alternative approaches to the rule that
would meet the requirements of the
statute.
DoD invites comments from small
business concerns and other interested
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Federal Register / Vol. 89, No. 158 / Thursday, August 15, 2024 / Proposed Rules
parties on the expected impact of this
proposed rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this proposed rule in accordance
with 5 U.S.C. 610. Interested parties
must submit such comments separately
and should cite 5 U.S.C 610 (DFARS
Case 2024–D023), in correspondence.
VII. Paperwork Reduction Act
This proposed 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).
List of Subjects in 48 CFR Parts 209 and
252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, the Defense Acquisition
Regulations System proposes to amend
48 CFR parts 209 and 252 as follows:
1. The authority citation for part 209
and 252 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Amend section 209.170–1 by
revising the definition of ‘‘Confucius
Institute’’ to read as follows:
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*
*
*
*
Confucius Institute means—
(1) Any program that receives funding
or support from—
(i) The Chinese International
Education Foundation; or
(ii) The Center for Language Exchange
Cooperation of the Ministry of
Education of the People’s Republic of
China; or
(2) Any cultural institute directly or
indirectly funded by the government of
the People’s Republic of China.
*
*
*
*
*
■ 3. Revise section 209.170–3 to read as
follows:
209.170–3
Waiver of restriction.
Jkt 262001
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Amend section 252.209–7011—
a. By revising the provision date;
■ b. In paragraph (a) by revising the
definition of ‘‘Confucius Institute’’; and
■ c. By revising paragraph (b).
The revisions read as follows:
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252.209–7011 Representation for
Restriction on the Use of Certain
Institutions of Higher Education.
*
*
*
*
*
Representation for Restriction on the
Use of Certain Institutions of Higher
Education (Date)
(a) * * *
Confucius Institute means—
(1) Any program that receives funding or
support from—
(i) The Chinese International Education
Foundation; or
(ii) The Center for Language Exchange
Cooperation of the Ministry of Education of
the People’s Republic of China; or
(2) Any cultural institute directly or
indirectly funded by the government of the
People’s Republic of China.
*
The restriction in 209.170–2 can be
waived by the Office of the Under
Secretary of Defense (Research and
Engineering), without power of
delegation, in accordance with the
Confucius Institute Waiver Program
guidance. The waiver authority
terminates on October 1, 2026. Any
waiver issued shall not apply on or after
that date. See PGI 209.170–3.
■
■
16:59 Aug 14, 2024
Definitions.
*
■
PART 209—CONTRACTOR
QUALIFICATIONS
VerDate Sep<11>2014
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66341
*
*
*
*
(b) Restriction. As required by section 1062
of the National Defense Authorization Act for
Fiscal Year 2021 (Pub. L. 116–283), DoD may
not award a contract with any institution of
higher education that hosts a Confucius
Institute. Section 1062 prohibits DoD from
providing funding to any U.S. institution of
higher education hosting a Confucius
Institute unless that institution receives a
waiver from the Department of Defense
Office of the Under Secretary of Defense for
Research and Engineering (OUSD(R&E)). The
waiver authority terminates on October 1,
2026. Any waiver issued shall not apply on
or after that date. See the OUSD(R&E)
Confucius Institute Waiver Program
Guidance to U.S. Institutions of Higher
Education at https://rt.cto.mil/wp-content/
uploads/Confucius-Institute-Waiver-ProgramGuidance-28Mar2023.pdf.
*
*
*
*
*
[FR Doc. 2024–18111 Filed 8–14–24; 8:45 am]
BILLING CODE 6001–FR–P
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]]>Agencies
[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Proposed Rules]
[Pages 66338-66341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18111]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 209 and 252
[Docket DARS-2024-0025]
RIN 0750-AM20
Defense Federal Acquisition Regulation Supplement: Limitation on
Certain Institutes of Higher Education (DFARS Case 2024-D023)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
[[Page 66339]]
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement sections of the National
Defense Authorization Act for Fiscal Year 2024, which amend a section
of the National Defense Authorization Act for Fiscal Year 2021 that
provides for the limitation of funds, authorized to be appropriated or
otherwise made available for any fiscal year for DoD, to be provided to
an institution of higher education that hosts a Confucius Institute.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before October 15, 2024, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2024-D023, using
either of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for DFARS Case 2024-D023. Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2024-
D023'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2024-D023 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Kimberly Bass, telephone 703-717-3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement sections 1044 and
1045 of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2024 (Pub. L. 118-31), which amend section 1062 of the NDAA for FY
2021 (Pub. L. 116-283). DoD published an interim rule in the Federal
Register at 88 FR 67607 on September 29, 2023, under DFARS Case 2021-
D023 to implement section 1062 of the NDAA for FY 2021. Section 1062
provides that none of the funds authorized to be appropriated or
otherwise made available for any fiscal year for DoD may be provided to
an institution of higher education that hosts a Confucius Institute,
defined as a cultural institute directly or indirectly funded by the
government of the People's Republic of China. In addition, section 1062
provided the authority to waive the funds limitation. There were no
public comments submitted in response to the interim rule.
Section 1044 of the NDAA for FY 2024 amends section 1062(d) of the
NDAA for FY 2021 by revising the definition of ``Confucius Institute''
as any program that receives funding or support from the Chinese
International Education Foundation, the Center for Language Exchange
Cooperation of the Ministry of Education of the People's Republic of
China, or any cultural institute funded by the government of the
People's Republic of China.
Section 1045 of the NDAA for FY 2024 amends section 1062(b) of the
NDAA for FY 2021 to add a termination date of October 1, 2026, for the
authority to issue a waiver.
II. Discussion and Analysis
No respondents submitted public comments in response to the interim
rule published at 88 FR 67607 on September 29, 2023.
A. New Definition
This proposed rule under DFARS Case 2024-D023 includes revisions to
the definition of ``Confucius Institute'' at DFARS 209.170-1.
``Confucius Institute'' means any program that receives funding or
support from the Chinese International Education Foundation, the Center
for Language Exchange Cooperation of the Ministry of Education of the
People's Republic of China, or any cultural institute funded by the
government of the People's Republic of China.
B. Waiver of Funds Limitation
This proposed rule at DFARS 209.170-3 adds a termination date of
October 1, 2026, for the authority to issue a waiver. Currently, the
funds limitation with respect to an institution of higher education can
be waived by the Office of the Under Secretary of Defense for Research
and Engineering (OUSD(R&E)). DFARS 209.170-3 addresses the OUSD(R&E),
Confucius Institute Waiver Program procedures.
C. Solicitation Provision
The solicitation provision at DFARS 252.209-7011, Representation
for Restriction on the Use of Certain Institutions of Higher Education,
is proposed to be amended to include conforming changes.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products, Including Commercially
Available Off-the-Shelf (COTS) Items, and Commercial Services
This rule proposes to amend the solicitation provision at DFARS
252.209-7011, Representation for Restriction on the Use of Certain
Institutions of Higher Education. The provision at DFARS 252.209-7011
is prescribed at DFARS 209.170-4 for use in solicitations for
acquisitions to an institution of higher education, including
solicitations using Federal Acquisition Regulation (FAR) part 12
procedures for the acquisition of commercial products, including COTS
items, and commercial services. DoD does intend to apply the proposed
rule to contracts at or below the SAT, to contracts for the acquisition
of commercial products including COTS items, and for the acquisition of
commercial services.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the simplified acquisition
threshold. It is intended to limit the applicability of laws to such
contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision
of law contains criminal or civil penalties, or if the Federal
Acquisition Regulatory Council makes a written determination that it is
not in the best interest of the Federal Government to exempt contracts
or subcontracts at or below the SAT, the law will apply to them. The
Principal Director, Defense Pricing, Contracting, and Acquisition
Policy (DPCAP), is the appropriate authority to make comparable
determinations for regulations to be published in the DFARS, which is
part of the FAR system of regulations. DoD does intend to make that
determination. Therefore, this proposed rule will apply at or below the
simplified acquisition threshold.
B. Applicability to Contracts for the Acquisition of Commercial
Products Including COTS Items and for the Acquisition of Commercial
Services
10 U.S.C. 3452 exempts contracts and subcontracts for the
acquisition of commercial products, including COTS items, and
commercial services from provisions of law enacted after October 13,
1994, unless the Under Secretary of Defense (Acquisition and
Sustainment) (USD(A&S)) makes a written determination that it would not
be in
[[Page 66340]]
the best interest of DoD to exempt contracts for the procurement of
commercial products and commercial services from the applicability of
the provision or contract requirement, except for a provision of law
that--
Provides for criminal or civil penalties;
Requires that certain articles be bought from American
sources pursuant to 10 U.S.C. 4862 or that strategic materials critical
to national security be bought from American sources pursuant to 10
U.S.C. 4863; or
Specifically refers to 10 U.S.C. 3452 and states that it
shall apply to contracts and subcontracts for the acquisition of
commercial products (including COTS items) and commercial services.
Sections 1044 and 1045 of the NDAA for FY 2024 do not impose
criminal or civil penalties, do not require purchase pursuant to 10
U.S.C. 4862 or 4863, and do not refer to 10 U.S.C. 3452. Therefore,
sections 1044 and 1045 will not apply to the acquisition of commercial
services or commercial products including COTS items unless a written
determination is made. Due to delegations of authority, the Principal
Director, DPCAP is the appropriate authority to make this
determination.
DoD intends to make that determination to apply this statute to the
acquisition of commercial products including COTS items and to the
acquisition of commercial services. Therefore, this proposed rule will
apply to the acquisition of commercial products including COTS items
and to the acquisition of commercial services.
C. Determinations
To ensure compliance with the limitation on the use of funds, the
proposed rule must apply to all contracts with institutions of higher
education. An exception for acquisitions at or below the SAT, for the
acquisition of commercial products including COTS items, or for the
acquisition of commercial services would exclude the contracts intended
to be covered by the law, thereby undermining the overarching public
policy purpose of the law and the associated statutory funds
limitation.
IV. Expected Impact of the Rule
Although section 1044 of the NDAA for FY 2024 broadened the
definition of Confucius Institute, DoD expects there will be no change
to the number of offerors impacted by the representation requirement.
Research and data analysis by DoD subject matter experts has not
revealed any activity that would constitute a Confucius Institute as
defined in section 1044. However, DoD's process of outreach to
institutions is ongoing, in an effort to identify any institutes
meeting the new definition being hosted by any U.S. institution of
higher education. If it is determined an institution of higher
education is hosting an institute meeting the new definition of
Confucius Institute, and if the institute intends to continue
operating, the prohibition will be applied accordingly. Consequently,
de minimis associated burden exists since the proposed rule still only
requires the prospective offeror, when submitting an offer in response
to a solicitation, to represent compliance with the requirements of
section 1062 of the NDAA for FY 2021 as amended by sections 1044 and
1045 of the NDAA for FY 2024. Data from the Federal Procurement Data
System indicate that less than 10 unique entities awarded DoD contracts
in fiscal years 2021 through 2023 met the definition of an institution
of higher education; none of those entities hosted a Confucius
Institute as newly defined.
This proposed rule also includes the addition of the termination
date for the authority to waive the funds limitation. As provided in
section 1045 of the NDAA for FY 2024, the waiver authority will end on
October 1, 2026, and any waivers issued prior to that date will no
longer be effective as of October 1, 2026. To date, DoD has not issued
any waivers to the funds limitation, and DoD does not anticipate
issuing any waivers on or before October 1, 2026.
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. Regulatory Flexibility Act
DoD does not expect this proposed rule, when finalized, to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because the funds limitation affects a very limited number of
offerors and, therefore, has a limited impact. However, an initial
regulatory flexibility analysis has been performed and is summarized as
follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to revise the definition of Confucius
Institute and to implement an end date for the associated waiver
authority. The DFARS currently requires that none of the funds
authorized to be appropriated or otherwise made available for any
fiscal year for DoD may be provided to an institution of higher
education that hosts a Confucius Institute. Currently, this prohibition
may be waived.
The objective of the rule is to implement sections 1044 and 1045 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024
(Pub. L. 118-31), which is the legal basis for the rule. Section 1044
amends section 1062(d) of the NDAA for FY 2021 by revising the
definition of ``Confucius Institute'' to mean any program that receives
funding or support from the Chinese International Education Foundation
or the Center for Language Exchange Cooperation of the Ministry of
Education of the People's Republic of China, or any cultural institute
funded by the Government of the People's Republic of China. Section
1045 of the NDAA for FY 2024 amends section 1062(b) of the NDAA for FY
2021 to add a termination date of October 1, 2026, for the authority to
issue a waiver.
To assess the potential impact, the Federal Procurement Data System
(FPDS) was queried for FY 2021, FY 2022, and FY 2023 for DoD contracts
and purchase orders, including those for commercial products and
commercial services, awarded to institutions of higher education that
meet the definition in 20 U.S.C. 1002. The FPDS data reflect a total of
104 contract awards to 9 unique entities over the entire three fiscal
years. All awards were made to other than small entities. Entities in
FPDS categorized as higher-level institutions of education are
designated only as other than small entities.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small entities, unless they are
associated with an institution of higher education that hosts a
Confucius Institute.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known significant alternative approaches to the rule
that would meet the requirements of the statute.
DoD invites comments from small business concerns and other
interested
[[Page 66341]]
parties on the expected impact of this proposed rule on small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this proposed rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C 610 (DFARS Case 2024-D023),
in correspondence.
VII. Paperwork Reduction Act
This proposed 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).
List of Subjects in 48 CFR Parts 209 and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System proposes to
amend 48 CFR parts 209 and 252 as follows:
0
1. The authority citation for part 209 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 209--CONTRACTOR QUALIFICATIONS
0
2. Amend section 209.170-1 by revising the definition of ``Confucius
Institute'' to read as follows:
209.170-1 Definitions.
* * * * *
Confucius Institute means--
(1) Any program that receives funding or support from--
(i) The Chinese International Education Foundation; or
(ii) The Center for Language Exchange Cooperation of the Ministry
of Education of the People's Republic of China; or
(2) Any cultural institute directly or indirectly funded by the
government of the People's Republic of China.
* * * * *
0
3. Revise section 209.170-3 to read as follows:
209.170-3 Waiver of restriction.
The restriction in 209.170-2 can be waived by the Office of the
Under Secretary of Defense (Research and Engineering), without power of
delegation, in accordance with the Confucius Institute Waiver Program
guidance. The waiver authority terminates on October 1, 2026. Any
waiver issued shall not apply on or after that date. See PGI 209.170-3.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 252.209-7011--
0
a. By revising the provision date;
0
b. In paragraph (a) by revising the definition of ``Confucius
Institute''; and
0
c. By revising paragraph (b).
The revisions read as follows:
252.209-7011 Representation for Restriction on the Use of Certain
Institutions of Higher Education.
* * * * *
Representation for Restriction on the Use of Certain Institutions of
Higher Education (Date)
(a) * * *
Confucius Institute means--
(1) Any program that receives funding or support from--
(i) The Chinese International Education Foundation; or
(ii) The Center for Language Exchange Cooperation of the
Ministry of Education of the People's Republic of China; or
(2) Any cultural institute directly or indirectly funded by the
government of the People's Republic of China.
* * * * *
(b) Restriction. As required by section 1062 of the National
Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283),
DoD may not award a contract with any institution of higher
education that hosts a Confucius Institute. Section 1062 prohibits
DoD from providing funding to any U.S. institution of higher
education hosting a Confucius Institute unless that institution
receives a waiver from the Department of Defense Office of the Under
Secretary of Defense for Research and Engineering (OUSD(R&E)). The
waiver authority terminates on October 1, 2026. Any waiver issued
shall not apply on or after that date. See the OUSD(R&E) Confucius
Institute Waiver Program Guidance to U.S. Institutions of Higher
Education at https://rt.cto.mil/wp-content/uploads/Confucius-Institute-Waiver-Program-Guidance-28Mar2023.pdf.
* * * * *
[FR Doc. 2024-18111 Filed 8-14-24; 8:45 am]
BILLING CODE 6001-FR-P
