73238 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: 

249.7000 Terminated contracts with 

Canadian Commercial Corporation. 

(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 

250.102–1–70 [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. 

[FR Doc. 2023–23435 Filed 10–24–23; 8:45 am] 

BILLING CODE 6001–FR–P 

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 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 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). 


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73240 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

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 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 225 

[Docket DARS–2023–0006] 

RIN 0750–AL39 

Defense Federal Acquisition 

Regulation Supplement: Restrictions 

on Overhaul and Repair of Naval 

Vessels in Foreign Shipyards (DFARS 

Case 2021–D021) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: 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. 

DATES: Effective October 30, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Bass, telephone 703–717– 

3446. 

SUPPLEMENTARY INFORMATION: 

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 

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. 

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: 

A. Summary of Significant Changes 

No changes are made to the final rule 

as a result of public comments. 

B. Analysis of Public Comment 

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. 

C. Other Changes 

Minor editorial changes are made in 

paragraph (b) of DFARS 225.7013–2 to 

comply with drafting conventions. 

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. 

IV. Expected Impact of the Rule 

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 

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 


lotter on DSK11XQN23PROD with RULES1