Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67607 

commercial products and commercial 

services, relating to fire-fighting on a military 

installation. 

(End of clause) 

[FR Doc. 2023–20800 Filed 9–28–23; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209, 212, and 252 

[Docket DARS–2023–0029] 

RIN 0750–AL41 

Defense Federal Acquisition 

Regulation Supplement: Limitation on 

Certain Institutes of Higher Education 

(DFARS Case 2021–D023) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement a section of the 

National Defense Authorization Act for 

Fiscal Year 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: Effective October 1, 2023. 

Comments on the interim rule should 

be submitted in writing to the address 

shown below on or before November 28, 

2023, to be considered in the formation 

of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2021–D023, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

‘‘DFARS Case 2021–D023.’’ Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2021–D023’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2021–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 

This interim rule revises the DFARS 

to implement section 1062 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2021 (Pub. 

L. 116–283). 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. According to section 1062, the 

limitation of funds is applicable to 

amounts other than those provided 

directly to students as educational 

assistance. The effective date of section 

1062 is October 1, 2023. 

II. Discussion and Analysis 

A. New Definitions 

The interim rule adds new definitions 

at DFARS section 209.170–1, 

Definitions, for ‘‘Confucius Institute’’ 

and ‘‘institution of higher education’’. 

‘‘Confucius Institute’’ means a cultural 

institute directly or indirectly funded by 

the government of the People’s Republic 

of China. ‘‘Institution of higher 

education’’ has the meaning given in 20 

U.S.C. 1002. 

B. Limitation of Funds 

At DFARS 209.170–2, the limitation is 

added regarding not providing funds 

appropriated or otherwise made 

available for any fiscal year for DoD to 

an institution of higher education that 

hosts a Confucius Institute, other than 

amounts provided directly to students 

as educational assistance. 

C. Waiver of Funds Limitation 

Pursuant to section 1286(g) of the 

NDAA for FY 2019 (Pub. L. 115–232; 10 

U.S.C. 4001 note), 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)). 

Section 209.170–3 addresses the 

OUSD(R&E), Confucius Institute Waiver 

Program procedures. 

D. Solicitation Provision 

A new solicitation provision is added 

at DFARS 252.209–7011, Representation 

for Restriction on the Use of Certain 

Institutions of Higher Education, for use 

in solicitations, including solicitations 

using Federal Acquisition Regulation 

(FAR) part 12 procedures for the 

acquisition of commercial products and 

commercial services, for acquisitions to 

an institution of higher education. The 

prescription for the provision is at 

DFARS 209.170–4. The provision is also 

added to the list of solicitation 

provisions and contract clauses for the 

acquisition of commercial products and 

commercial services at DFARS 212.301. 

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 creates a new 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 in DFARS 

209.170–4 for use in solicitations for 

acquisitions to an institution of higher 

education, including solicitations for 

acquisitions to an institution of higher 

education using FAR part 12 procedures 

for the acquisition of commercial 

products, including COTS items, and 

commercial services. DoD is applying 

the 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 and 

Contracting (DPC), 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 

has made that determination. Therefore, 

this rule applies at or below the 

simplified acquisition threshold. 


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67608 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

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 

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. 

Section 1062 of the NDAA for FY 

2021, which is implemented in this 

rule, does not impose criminal or civil 

penalties, does not require purchase 

pursuant to 10 U.S.C. 4862 or 4863, and 

does not refer to 10 U.S.C. 3452. Section 

1062 is silent on applicability to the 

acquisition of commercial services and 

commercial products (including COTS 

items). Therefore, section 1062 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, Defense Pricing and 

Contracting is the appropriate authority 

to make this determination. DoD has 

made that determination. Therefore, this 

rule applies 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 rule 

must apply to all contracts with 

institutions of higher education. An 

exception for acquisitions at or below 

the SAT or for the acquisition of 

commercial products including COTS 

items and 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 

Offerors that are institutions of higher 

education will be required to comply 

with the new provision and to 

represent, by submission of an offer, 

that they are not an entity hosts a 

Confucius Institute, or that they have 

obtained a waiver from OUSD(R&E). De 

minimis associated burden exists since 

the rule only requires the prospective 

offeror, when submitting an offer in 

response to a solicitation, to represent 

compliance with the requirements of 

section 1062. Moreover, data from the 

Federal Procurement Data System 

(FPDS) indicate that 10 unique entities 

in fiscal year 2022 met the definition of 

an institution of higher education; none 

of those 10 entities hosted a Confucius 

Institute. 

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 

DoD does not expect this interim rule 

to have a significant economic impact 

on a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the funds limitation concerns 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 amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to require 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. 

The objective for the rule is to 

implement section 1062 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2021, which is the legal 

basis for the rule. Section 1062 provides 

limitations on appropriated funds. 

Specifically, 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 

DoD Office of the Under Secretary of 

Defense for Research and Engineering 

(OUSD(R&E)), when a determination is 

made that such a waiver is appropriate 

in accordance with the OUSD(R&E) 

Confucius Institute Waiver Program. 

To assess the potential impact, the 

Federal Procurement Data System 

(FPDS) was queried for FY 2020, 2021, 

and 2022 for DoD contracts and 

purchase orders, to include 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 that 

DoD made a total of 110 contract awards 

to 10 unique entities over the entire 

three fiscal years. All awards were made 

to other than small unique 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 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 


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Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67609 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2021–D023), in 

correspondence. 

VIII. Paperwork Reduction Act 

This interim 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). 

IX. Determination To Issue an Interim 

Rule Effective in Less Than 30 Days 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to promulgate this interim rule, effective 

in less than 30 days, without prior 

opportunity for public comment. This 

action must be effective in less than 30 

days, because the effective date of the 

statute is October 1, 2023. Section 1062 

of the NDAA for FY 2021 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. Therefore, the interim rule, 

which implements section 1062, is 

necessary to ensure that contracting 

officers adhere to the limitation on the 

use of funds to avoid the risk of a 

possible violation of the Anti-Deficiency 

Act. 

However, pursuant to 41 U.S.C. 1707 

and FAR 1.501–3(b), DoD will consider 

public comments received in response 

to this interim rule in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 209, 

212, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR parts 209, 212, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 209, 212, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 209—CONTRACTOR 

QUALIFICATIONS 

209.106 [Amended] 

■ 2. Amend section 209.106 by 

removing ‘‘preawared’’ and adding 

‘‘preaward’’ in its place. 

■ 3. Add sections 209.170, 209.170–0, 

209.170–1, 209.170–2, 209.170–3, and 

209.170–4 to read as follows: 

* * * * * 

Sec. 

209.170 Restriction on the use of certain 

institutions of higher education. 

209.170–0 Scope. 

209.170–1 Definitions. 

209.170–2 Restriction. 

209.170–3 Waiver of restriction. 

209.170–4 Solicitation provision. 

* * * * * 

209.170 Restriction on the use of certain 

institutions of higher education. 

209.170–0 Scope. 

This section implements section 1062 

of the National Defense Authorization 

Act for Fiscal Year 2021 (Pub. L. 116– 

283). 

209.170–1 Definitions. 

As used in this section— 

Confucius Institute means a cultural 

institute directly or indirectly funded by 

the government of the People’s Republic 

of China. 

Institution of higher education has the 

meaning given in 20 U.S.C. 1002. 

209.170–2 Restriction. 

None of the funds authorized to be 

appropriated or otherwise made 

available for any fiscal year for DoD may 

be used to contract with an institution 

of higher education that hosts a 

Confucius Institute, other than amounts 

provided directly to students as 

educational assistance. Contracting 

officers shall not enter into a contract 

with any institution of higher education 

that hosts a Confucius Institute, unless 

a waiver has been granted. 

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. See PGI 209.170–4. 

209.170–4 Solicitation provision. 

Use the provision at 252.209–7011, 

Representation for Restriction on the 

Use of Certain Institutions of Higher 

Education, in solicitations, including 

solicitations using FAR part 12 

procedures for the acquisition of 

commercial products and commercial 

services, for acquisitions to an 

institution of higher education. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

■ 3. Amend section 212.301 by— 

■ a. Redesignating paragraphs (f)(iv) 

through (xix) as paragraphs (f)(v) 

through (xx); and 

■ b. Adding new paragraph (f)(iv) to 

read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

(f) * * * 

(iv) Part 209—Contractor 

Qualifications. Use the provision at 

252.209–7011, Representation for 

Restriction on the Use of Certain 

Institutions of Higher Education, as 

prescribed at 209.170–4, to comply with 

section 1062 of the National Defense 

Authorization Act for Fiscal Year 2021 

(Pub. L. 116–283). 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Add section 252.209–7011 to read 

as follows: 

252.209–7011 Representation for 

Restriction on the Use of Certain 

Institutions of Higher Education. 

As prescribed in 209.170–4, use the 

following provision: 

Representation for Restriction on the Use of 

Certain Institutions of Higher Education (Oct 

2023) 

(a) Definitions. As used in this provision— 

Confucius Institute means a cultural 

institute directly or indirectly funded by the 

government of the People’s Republic of 

China. 

Institution of higher education has the 

meaning given in 20 U.S.C. 1002. 

(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)). See 

the OUSD(R&E) Confucius Institute Waiver 

Program Guidance to U.S. Institutions of 

Higher Education at https://rt.cto.mil/wpcontent/uploads/Confucius-Institute-WaiverProgram-Guidance-28Mar2023.pdf. 


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67610 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

(c) Representation. By submission of an 

offer, the Offeror represents that— 

(1) It is not an institution of higher 

education that hosts a Confucius Institute; or 

(2) The Offeror has obtained a waiver 

approved by OUSD(R&E). 

(End of provision) 

[FR Doc. 2023–20816 Filed 9–28–23; 8:45 am] 

BILLING CODE 5001–06–P 


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