Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules 3625 

SUMMARY: The Video Division, Media 

Bureau (Bureau), has before it a petition 

for rulemaking filed January 9, 2024, by 

VPM Media Corporation (Petitioner). 

The Petitioner requests the allotment of 

reserved noncommercial educational 

(NCE) television channel *12 to 

Waynesboro, Virginia (Waynesboro), as 

the community’s first local television 

service and its first NCE television 

service. 

DATES: Comments must be filed on or 

before February 20, 2024 and reply 

comments on or before March 4, 2024. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 45 

L Street NE, Washington, DC 20554. In 

addition to filing comments with the 

FCC, interested parties should serve 

counsel for the Petitioner as follows: Ari 

Meltzer, Wiley Rein LLP, 2050 M Street 

NW, Washington, DC 20036. 

FOR FURTHER INFORMATION CONTACT: 

Emily Harrison, Media Bureau, at (202) 

418–1665; or Emily Harrison, Media 

Bureau, at Emily.Harrison@fcc.gov. 

SUPPLEMENTARY INFORMATION: The 

Petitioner states that Waynesboro 

qualifies as a community for allotment 

purposes. In support, it states that 

Waynesboro is an independent and 

principal city of the StauntonWaynesboro Metropolitan Statistical 

Area. As of the 2020 Census, 

Waynesboro had a population of 22,196 

and the Staunton-Waynesboro 

Statistical Area had a population of 

125,654. In addition, Waynesboro has 

its own ZIP Code, two post offices, city 

council, public school system, police 

department, and library. The Petitioner 

states its intention to file an application 

for channel *12 if allotted, and take all 

necessary steps to obtain a construction 

permit. 

We find the proposed amendment to 

the Table of TV Allotments warrants 

consideration. The Petitioner’s proposal 

would result in a first local service to 

Waynesboro under the second priority 

of the Commission’s television 

allotment priority standard. The 

Petitioner demonstrates, and a Bureau 

staff engineering analysis confirms, that 

channel *12 can be allotted to 

Waynesboro, consistent with the 

minimum geographic spacing 

requirements for new allotments in 

section 73.623(d) of the Commission’s 

rules (Rules), at 37°38′24′′ N and 

78°27′11′′ W (allotment point). In 

addition, the allotment point complies 

with section 73.625(a)(1) of the Rules as 

the entire community of Waynesboro is 

encompassed by the proposed 43 dBm 

contour. 

This is a synopsis of the 

Commission’s Notice of Proposed 

Rulemaking, MB Docket No. 24–4; RM– 

11974; DA 24–30, adopted January 11, 

2024, and released January 11, 2024. 

The full text of this document is 

available for download at https://

www.fcc.gov/edocs. To request materials 

in accessible formats (braille, large 

print, computer diskettes, or audio 

recordings), please send an email to 

FCC504@fcc.gov or call the Consumer & 

Government Affairs Bureau at (202) 

418–0530 (VOICE), (202) 418–0432 

(TTY). 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 601– 

612, do not apply to this proceeding. 

Members of the public should note 

that all ex parte contacts are prohibited 

from the time a Notice of Proposed 

Rulemaking is issued to the time the 

matter is no longer subject to 

Commission consideration or court 

review, see 47 CFR 1.1208. There are, 

however, exceptions to this prohibition, 

which can be found in Section 1.1204(a) 

of the Commission’s rules, 47 CFR 

1.1204(a). 

See Sections 1.415 and 1.420 of the 

Commission’s rules for information 

regarding the proper filing procedures 

for comments, 47 CFR 1.415 and 1.420. 

Providing Accountability Through 

Transparency Act: The Providing 

Accountability Through Transparency 

Act, Public Law 118–9, requires each 

agency, in providing notice of a 

rulemaking, to post online a brief plainlanguage summary of the proposed rule. 

The required summary of this Notice of 

Proposed Rulemaking/Further Notice of 

Proposed Rulemaking is available at 

https://www.fcc.gov/proposedrulemakings. 

List of Subjects in 47 CFR Part 73 

Television. 

Federal Communications Commission. 

Thomas Horan, 

Chief of Staff, Media Bureau. 

Proposed Rule 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICE 

■ 1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 155, 301, 303, 

307, 309, 310, 334, 336, 339. 

■ 2. In § 73.622, in the table in 

paragraph (j), under Virginia, add an

entry for Waynesboro to read as follows:

§ 73.622 Digital television table of

allotments.

* * * * * 

(j) * * * 

Community Channel 

No. 

*****

Virginia 

*****

Waynesboro .............................. * 12

*****

[FR Doc. 2024–00988 Filed 1–18–24; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF STATE 

48 CFR Parts 625 and 652 

[Public Notice: 12058] 

RIN 1400–AF65 

Department of State Acquisition 

Regulation: Nondiscrimination in 

Foreign Assistance 

AGENCY: Department of State. 

ACTION: Notice of proposed rulemaking; 

request for comment. 

SUMMARY: The Foreign Assistance Act of 

1961 (FAA) and other related statutes, 

such as the FREEDOM Support Act, the 

Migration and Refugee Assistance Act of 

1962, and the SEED Act of 1989, 

authorize the U.S. Department of State 

(Department of State, State, or 

Department) to provide foreign 

assistance that seeks to support efforts 

that would have the effect of protecting 

and promoting U.S. security, prosperity, 

and democratic values and shape an 

international environment to improve 

the lives of people around the world. To 

implement the Department’s 

expectation of nondiscrimination 

against beneficiaries of Departmentfunded foreign assistance activities, the 

Department is proposing to amend its 

Department of State Acquisition 

Regulation (DOSAR) to include a new 


ddrumheller on DSK120RN23PROD with PROPOSALS1
3626 Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules 

contract clause entitled 

‘‘Nondiscrimination in Foreign 

Assistance.’’ The proposed clause 

expressly states that contractors and 

subcontractors receiving Departmentfunded foreign assistance funds must 

not discriminate on specified bases 

against end-users of supplies or services 

(also referred to in this rule as 

beneficiaries and potential beneficiaries) 

or in certain employment decisions 

involving persons employed in the 

performance of this contract and funded 

in whole or in part with foreign 

assistance funds except where target 

populations are specified in the relevant 

statement of work (SOW) or as 

otherwise required by U.S. law. 

DATES: The Department of State will 

accept comments until March 19, 2024. 

ADDRESSES: Submit comments, 

identified by title of the action and 

Regulatory Information Number (RIN) 

by any of the following methods: 

• Through the Federal eRulemaking 

Portal at https://www.regulations.gov 

and search for docket DOS–2023–0014 

or RIN 1400–AF65. 

• By Email: Submit electronic 

comments to acquisitionpolicy@

state.gov and/or schroederhr@state.gov. 

• The summary of this rule can be 

found at www.regulations.gov/DOS2023-0014. 

FOR FURTHER INFORMATION CONTACT: 

Direct requests for additional 

information regarding this notice to 

Hilary Schroeder, who may be reached 

at (202) 890–9798 or at schroederhr@

state.gov. 

SUPPLEMENTARY INFORMATION: The 

inclusion and equitable treatment of all 

individuals, organizations, and 

communities relevant to Department 

foreign assistance programs is critical to 

achieving effective, comprehensive, and 

sustainable foreign assistance results 

because it enhances the participation, 

contributions, and access of the target 

population. As such, the Department 

seeks to ensure access for all eligible 

beneficiaries of the target population 

within the scope of its foreign assistance 

contracts without discrimination. 

Because of this premise, which 

underpins all of the Department’s 

programs, the Department is embedding 

equity across its foreign affairs work and 

raising the visibility of inequities 

globally by providing equal 

opportunities for all eligible 

individuals, including members of 

minority groups and members of other 

underserved communities, through its 

foreign assistance programs. The 

Department seeks to improve the lives 

of people around the world by being 

inclusive and equitable in its foreign 

assistance efforts, including its 

evaluation of responses to requests for 

proposal, solicitations, etc. 

The Department is committed to a 

nondiscrimination policy in its projects 

and activities and welcomes proposals 

irrespective of an offeror’s race, 

ethnicity, color, religion, sex, gender, 

sexual orientation, gender identity or 

expression, sex characteristics, 

pregnancy, national origin, disability, 

age, genetic information, indigeneity, 

marital status, parental status, political 

affiliation, or veteran’s status. The 

Department seeks to ensure that foreign 

assistance proposals that demonstrate 

that the recipients would not, in 

implementation of a potential contract, 

discriminate against any beneficiaries of 

foreign assistance funds based on any of 

the factors listed above—unless 

otherwise expressly authorized in the 

contract or otherwise required by U.S. 

law in implementation of a potential 

contract. Discrimination in 

implementation of an award could 

include adversely impacting, or denying 

equitable access to the benefits provided 

through the contract. 

Establishing clear and meaningful 

nondiscrimination protections in 

Department of State foreign assistance 

awards advances U.S. foreign policy by 

ensuring that U.S. foreign assistance is 

inclusive and equitable by reaching all 

intended beneficiaries, and efficiently 

accomplishing its intended objectives. 

U.S. foreign assistance funding is less 

effective and efficient when 

discrimination prevents assistance from 

reaching those who might most benefit 

from such assistance—which hinders 

U.S. foreign policy by excluding 

individuals that the United States 

intended to receive such assistance. 

Nondiscrimination protections 

require a tangible incentive for 

organizations to take affirmative steps to 

commit to nondiscrimination and 

extend protection to employees and 

beneficiaries of foreign assistance. 

Nondiscrimination protections send a 

strong signal to people around the world 

that equity and inclusion are values that 

the United States takes seriously. They 

complement and affirm other 

commitments to equality in U.S. foreign 

policy, maximizing their coherence and 

effectiveness. 

Nondiscrimination principles and 

protections are essential in protecting 

and advancing the human rights of all 

persons and ensuring equitable access to 

foreign assistance programs. Contractors 

must adhere to this requirement by 

performing the activities as outlined in 

the contract SOWs. 

In recent years, the U.S. government 

has issued multiple policy 

pronouncements emphasizing equity, 

fairness, and human dignity. Effective 

nondiscrimination protections for 

beneficiaries of foreign assistance are a 

means toward achieving these 

objectives. For example, in 2021, the 

President issued Executive Order (E.O.) 

13985 on ‘‘Advancing Racial Equity and 

Support for Underserved Communities 

Through the Federal Government,’’ 

which mandates embedding equity in 

government programming and decisionmaking processes of every department 

and agency in the Executive Branch’’; 

and in 2023, the President issued E.O. 

14091, ‘‘Further Advancing Racial 

Equity and Support for Underserved 

Communities Through the Federal 

Government. Furthermore, in 2011, the 

President issued E.O. 13563, 

‘‘Improving Regulation and Regulatory 

Review,’’ which, in addition to 

quantitative factors, advised that the 

qualitative values of equity, fairness, 

and human dignity are important 

considerations in agencies’ rulemaking. 

This rulemaking proposes to revise 

(48 CFR) DOSAR Part 625 to add new 

requirements, at 625.7101, 625.7102, 

and 625.7103 outlining the policy 

against nondiscrimination in 

Department of State foreign assistance 

contracts. In addition, the rulemaking 

proposes to add a clause at 652.225–72, 

entitled ‘‘Nondiscrimination in Foreign 

Assistance.’’ The clause, applicable to 

all solicitations, contracts, and 

subcontracts awarded with Department 

of State foreign assistance funds at any 

tier, prohibits contractors and 

subcontractors from discriminating 

against beneficiaries or potential 

beneficiaries (i.e., those individuals 

intended to receive the benefits of the 

award, whether goods or services) or 

persons employed in the performance of 

the award on the basis of any listed 

characteristics not expressly stated in 

the award. 

The purpose of this proposed 

rulemaking is to ensure effective 

implementation of foreign assistance 

programs consistent with U.S. foreign 

policy and the purposes of the FAA. 

Section 101 of the FAA provides that: 

‘‘[T]he Congress reaffirms the traditional 

humanitarian ideals of the American 

people and renews its commitment to 

assist people in developing countries to 

eliminate hunger, poverty, illness, and 

ignorance.’’ 22 U.S.C. 2151(a). 

The main effect of the proposed 

clause is to ensure that contractors 

adhere to State’s policy and practice of 

nondiscrimination in planning foreign 

assistance projects and activities, and 

State’s policy and practice of 

nondiscrimination is followed through 

to completion by the contractors that 


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Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules 3627 

implement them. The impact of the 

clause on contractors and offerors is to 

require them to refrain from the 

discrimination described in the clause. 

Under the statutory regime governing 

foreign assistance, and consistent with 

his responsibilities regarding the 

conduct of U.S. foreign affairs, the 

President has broad discretion to set the 

terms and conditions on which the 

United States provides such assistance. 

Many of the authorities provided under 

the Foreign Assistance Act of 1961, and 

similar statutes, explicitly allow for the 

provision of assistance ‘‘on such terms 

and conditions as [the President] may 

determine.’’ See, e.g., section 104(c)(1) 

of the FAA (22 U.S.C. 2151b(c)(1)) 

(health assistance); section 481(a)(4) of 

the FAA (22 U.S.C. 2291(a)(4)) 

(counternarcotics and anti-crime 

assistance); section 531 of the FAA (22 

U.S.C. 2346) (assistance to promote 

economic or political stability); section 

541(a) of the FAA (22 U.S.C. 2347) 

(International Military Education and 

Training assistance); section 551 of the 

FAA (22 U.S.C. 2348) (Peacekeeping 

Operations); section 571 of the FAA (22 

U.S.C. 2349aa) (anti-terrorism 

assistance); see also section 2(c)(1) of 

the MRAA; section 201 of the SEED Act 

of 1989 (amending the FAA by 

inserting, inter alia, section 498b(i)).). 

The FAA provides that ‘‘[t]he 

President may exercise any functions 

conferred upon him by this Act through 

such agency or officer of the United 

States Government as he shall direct. 

The head of any such agency or such 

officer may from time to time 

promulgate such rules and regulations 

as may be necessary to carry out such 

functions. . . .’’ 22 U.S.C. 2381(a). The 

Secretary of State exercises authorities 

under the FAA as delegated by the 

President in Executive Order 12163, 

dated September 29, 1979, as amended. 

That includes the President’s authority 

to ‘‘issue and enforce regulations 

determining the eligibility of any person 

to receive funds made available under’’ 

the FAA. 22 U.S.C. 2381(b). 

These proposed rules fall within the 

Department’s authority, delegated to it 

by the President, to set conditions on 

the provision of foreign assistance, 

including on the implementers of such 

assistance. Courts have repeatedly 

recognized that the President has 

extremely broad discretion in the 

conduct of foreign affairs to allocate 

foreign assistance funding for particular 

programs and to set the conditions on 

U.S. funding to implementers of those 

programs. See, e.g., DKT Memorial Fund 

v. USAID, 887 F.2d 275, 282 (D.C. 

Cir.1989); Planned Parenthood 

Federation of America v. USAID, 915 

F.2d 59 (2d Cir. 1990); Center for 

Reproductive Law and Policy v. Bush, 

304 F.3d 183 (2d Cir. 2002). These 

courts recognized the President’s broad 

discretion to allocate assistance funding 

for particular programs and to set the 

conditions on U.S. funding to nongovernmental implementers of those 

programs. See, e.g., Planned Parenthood 

v. USAID, 838 F.2d 649, 654 (2d Cir. 

1988) (in carrying out the policies under 

the Foreign Assistance Act, ‘‘AID has 

‘broad discretionary power’ to decide 

which, among numerous competing 

projects, will be given family planning 

funds’’); DKT, 887 F.2d at 282 

(‘‘President acted under a congressional 

grant of discretion as broadly worded as 

any we are likely to see. . . .’’). 

Consistent with this broad authority, 

the Department and other agencies have 

imposed a range of requirements on 

foreign assistance awards. For example, 

the Department utilizes contract-specific 

terms and conditions from time to time 

when necessitated by policy and 

priorities, such as restrictions on 

allowed activities and implementation 

areas/countries. 

Moreover, the Secretary has the 

authority to promulgate such rules and 

regulations as may be necessary to carry 

out his functions and the functions of 

the Department of State. See 22 U.S.C. 

2651a(a)(4). This rule provides a 

contractual requirement for contractors 

to refrain from undermining the 

objectives, terms, and conditions of 

foreign assistance-funded activities by 

engaging in conduct that interferes with 

its delivery to intended recipients. In 

addition to the Department’s authority 

to promulgate regulations under the 

FAA, the Federal Acquisition 

Regulation (FAR) also expressly 

authorizes the Secretary to issue 

‘‘agency acquisition regulations that 

implement or supplement the FAR and 

incorporate, together with the FAR, 

agency policies, procedures, contract 

clauses, solicitation provisions, and 

forms that govern the contracting 

process or otherwise control the 

relationship between the agency, 

including any of its suborganizations, 

and contractors or prospective 

contractors.’’ (FAR 1.301(a)(1)). Under 

its acquisition authority, the Department 

awards contracts in the execution of 

foreign assistance. Prudent and 

responsible exercise of the Department’s 

foreign assistance and acquisition 

authority under the FAR require that 

contract terms ensure that foreign 

assistance reaches its intended 

recipients and is not thwarted by 

discrimination on the bases covered in 

this rule. Establishing terms and 

conditions for foreign assistance 

contracts is a function the Department’s 

broad authority both to set the terms, 

conditions, and scope of foreign 

assistance and, under the FAR, to 

ensure that the terms and conditions of 

contracts implementing such activities 

are consistent with the objectives of the 

foreign assistance. 

Finally, in the event that any portion 

of the proposed rule as finalized is 

declared invalid, the Department 

intends that the various aspects be 

severable. The Department would 

intend the remaining features of the 

policy to stand. 

Regulatory Analyses 

Administrative Procedure Act 

This proposed rule is published for 

public comment pursuant to the Office 

of Federal Procurement Policy Act (41 

U.S.C. 1707). The Department is 

publishing this proposed rulemaking for 

a comment period of 60 days. 

Executive Orders 12866 (Regulatory 

Planning and Review), 13563 

(Improving Regulation and Regulatory 

Review), and 14094 (Modernizing 

Regulatory Review) 

Executive Orders (E.O.s) 12866, 

13563, and 14094 direct agencies to 

assess the costs and benefits of the 

intended regulation. E.O. 13563 allows 

that in making this assessment, an 

agency ‘‘may consider (and discuss 

qualitatively) values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts.’’ The Department 

has submitted this rulemaking to the 

Office of Information and Regulatory 

Affairs (OIRA) for review. OIRA has 

designated this rulemaking a 

‘‘significant regulatory action’’ under 

E.O. 12866, as amended. 

This rule provides a benefit by 

promoting nondiscrimination in 

Department of State foreign assistance, 

which itself promotes programmatic 

efficiency, with minimal administrative 

burden anticipated for the affected 

entities, Department contractors and 

subcontractors. It does not require them 

to carry out activities beyond those in 

their contract SOWs and terms and 

conditions. The Department anticipates 

that the benefits of the proposed rule are 

realized by (1) ensuring that contract 

solicitations and resulting contracts 

clearly notify that discrimination on 

bases in the rule will not excuse the 

contractor from performing the foreign 

assistance funded work; (2) by avoiding 

proposal evaluation costs arising from 

contractors who are unwilling to 

provide supplies and services to all 

intended recipients; (3) by helping to 


ddrumheller on DSK120RN23PROD with PROPOSALS1
3628 Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules 

ensure that foreign assistance funded 

activities reach intended recipients and 

are not undermined by discriminatory 

exclusion on the bases identified in the 

rule. If, for example, a contract specified 

the provision of food parcels in a certain 

community, the contractor could not, on 

its own, decide that only certain 

members of that community should 

receive the food parcels or that certain 

members should be excluded. This rule 

makes it clear at the inception of a 

contract solicitation and any resulting 

contract the contractor is obligated to 

provide services and supplies without 

excluding recipients on the bases stated 

in the rule. 

Potential costs the Department 

identifies for contractors and 

subcontractors are for implementation 

guidance, to the extent that contractors 

do not already proscribe discrimination 

as part of the normal conduct of their 

business, and potential changes in 

hiring practices for certain employees 

supporting performance of the contract. 

Potential costs could include creation of 

policies and procedures, initial training 

on implementation guidelines, and 

training on working with Department 

contracting officer representatives and/ 

or contracting officers to ensure 

compliance. The Department requests 

comment on the costs of compliance 

with the provisions of this proposed 

rule, including estimates of hourly 

burdens and wages of employees that 

may be required to implement the rule, 

should it be finalized. 

The Department awards 

approximately 100 new contracts with 

foreign assistance funds annually. 

Including this clause in all new 

contracts funded by Department of State 

foreign assistance funds and all new 

subcontracts thereunder provides an 

explicit requirement that the 

Department’s contractors not 

discriminate against any designated 

group or individual (except as provided 

in the award or as required under U.S. 

law) and is particularly important in 

countries where stigma and 

discrimination toward certain groups is 

tolerated or officially endorsed by the 

government. The benefits of the rule 

would include expressly reinforcing 

notions of equity, fairness, and human 

dignity under Federal Government 

contracts internationally. 

Contractors responding to a 

solicitation (e.g. request for proposal 

(RFP) or invitation for bid (IFB)) would 

further be on notice not to include any 

discriminatory criteria in their 

responses to a solicitation, absent 

specific programmatic justification in 

the SOW to do so. 

Regulatory Flexibility Act 

Congress enacted the Regulatory 

Flexibility Act of 1980, as amended, 5 

U.S.C. 601–612, to ensure that 

Government regulations do not 

unnecessarily or disproportionately 

burden small entities. It requires a 

regulatory flexibility analysis if a rule 

would have a significant economic 

impact, either detrimental or beneficial, 

on a substantial number of small 

entities. 

In fiscal year 2022, 14 unique 

domestic small businesses received 

Department foreign assistance funds 

under 29 individual awards. In fiscal 

years 2018, 2019, 2020, and 2021, three, 

one, four, and six unique small 

businesses received Department foreign 

assistance funds, respectively. The 

requirement this rule would impose on 

small businesses is no different than the 

requirement imposed on other entities: 

contracts or subcontracts awarded to 

them will include a clause prohibiting 

discrimination in the employment of 

persons engaged directly in the 

performance of Department foreign 

assistance contracts and grants and not 

to discriminate with respect to the 

intended beneficiaries of U.S. foreign 

assistance, except as provided in the 

award. As with all contractors, the 

employees of small businesses will be 

expected to be mindful of the principles 

of equity, fairness, and human dignity 

when performing the work under their 

contracts; as they have always been. The 

Department anticipates that the 

additional effort required by small 

businesses as a result of this proposed 

rule is de minimis and will not impose 

more than a negligible cost. However, 

the Department is requesting comment 

on this assumption. 

In light of the above analysis, the 

Department of State certifies that this 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Act of 1995 

The Unfunded Mandates Act of 1995 

requires agencies to prepare several 

analytical statements before proposing 

any rule that may result in annual 

expenditures of $100 million or more in 

State, local, or Indian Tribal 

governments or the private sector. Since 

this final rule will not result in 

expenditures of this magnitude, the 

Department certifies that such 

statements are not necessary. 

Executive Orders 12372 and 13132— 

Federalism 

This regulation will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to require consultations or 

warrant the preparation of a federalism 

summary impact statement. The 

regulations implementing E.O. 12372 

regarding intergovernmental 

consultation on Federal programs and 

activities do not apply to this regulation. 

Executive Order 13175—Consultation 

With Tribal Governments 

The Department has determined that 

this rulemaking will not have Tribal 

implications, will not impose 

substantial direct compliance costs on 

Indian Tribal governments, and will not 

pre-empt Tribal law. Accordingly, the 

requirements of E.O. 13175 do not apply 

to this proposed rule. 

Paperwork Reduction Act 

The Department believes that the 

number of respondents submitting 

reports pursuant to this rulemaking will 

be low, possibly close to the 10 

respondents per year that would trigger 

the Paperwork Reduction Act. The 

Department anticipates that the burden 

per response would be one hour, 

yielding a total burden of 10 hours for 

this rulemaking. The Department invites 

public comment on these figures. The 

number of respondents and the burden 

hours will be added to the existing OMB 

Control Number that covers information 

collections mandated by the DOSAR. 

Therefore, the Department submits the 

following information: 

Title of Information Collection: 

Department of State Acquisition 

Regulation (DOSAR). 

OMB Control Number: 1405–0050. 

Type of Request: Revision of a 

currently approved collection. 

Originating Office: Department of 

State, A/OPE. 

Form Number: No form. 

Respondents: Offerors and awardees 

of Department of State solicitations and 

contracts. 

Estimated Number of Respondents: 

2,897, plus 10 for this rulemaking = 

2,907. 

Estimated Number of Responses: 

3,095, plus 10 for this rulemaking = 

3,105. 

Average Time per Response: 82 hours, 

plus one hour for this rulemaking = 83 

hours. 

Total Estimated Burden Time: 

253,416, plus 10 for these rulemaking = 

253,426 hours. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules 3629 

Frequency: On occasion. 

Obligation to Respond: Mandatory. 

List of Subjects in 48 CFR Parts 625 and 

652 

Government procurement. 

For the reasons discussed in the 

preamble, the Department of State 

proposes to amend 48 CFR Chapter 6 as 

set forth below: 

PART 625—FOREIGN ACQUISITION 

■ 1. The Authority citation for Part 625 

is revised to read as follows: 

Authority: 40 U.S.C. 486(c); 22 U.S.C. 

2651a, 2656. 

■ 2. Add subpart 625.71 to read as 

follows: 

Subpart 625.71—Nondiscrimination in 

Foreign Assistance 

Sec. 

626.7101 Policy. 

625.7102 Waivers. 

625.7013 Contract clause. 

Subpart 625.71—Nondiscrimination in 

Foreign Assistance 

625.7101 Policy. 

Contractors receiving Department of 

State foreign assistance awards shall not 

discriminate on the basis of race, 

ethnicity, color, religion, sex, gender, 

sexual orientation, gender identity or 

expression, sex characteristics, 

pregnancy, national origin, disability, 

age, genetic information, indigeneity, 

marital status, parental status, political 

affiliation, or veteran’s status within the 

target population of the foreign 

assistance award (i.e., the beneficiary of 

the contract). 

625.7102 Waivers. 

(a) Pursuant to the procedures in this 

section, the head of the contracting 

activity may waive the application of 

the requirements at paragraph (a)(2) of 

clause 652.225–72, Nondiscrimination 

in Foreign Assistance, if it is determined 

to be in the best interest of the U.S. 

government. Such determinations will 

take into account the totality of the 

circumstances, including, but not 

limited to, whether the waiver is 

requested as an accommodation to 

comply with applicable foreign laws, 

edicts, or decrees, or to allow a religious 

corporation, association, educational 

institution, or society to employ 

individuals of a particular religion to 

carry out the activities under the award 

in a manner consistent with its religious 

beliefs. 

(b) The contractor shall submit any 

request for a waiver of the requirements 

of the paragraph at 652.225–72(a)(2) in 

writing to the contracting officer, and 

with sufficient justification for a 

determination, prior to award or 

thereafter by mutual agreement between 

the parties. 

(c) Upon review of information 

submitted by the contractor, any 

determination to waive the 

requirements at 652.225–72(a)(2) shall 

be executed jointly, in writing, by the 

head of the contracting activity and the 

requesting Bureau’s Assistant Secretary 

or the post Chief of Mission, or their 

designee. 

(d) If a waiver is approved pursuant 

to this section, the contracting officer 

shall specifically denote the 

inapplicability of the paragraph at 

652.225–72(a)(2) in the contract award. 

(e) Upon making a determination to 

waive the requirements at 652.225– 

72(a)(2) pursuant to this section, the 

head of the contracting activity shall 

notify the Assistant Secretary of the 

Bureau for Democracy, Human Rights, 

and Labor, or their designee in writing 

within 30 days. 

(f) Nothing in any such waiver 

approved pursuant to this section shall 

negate any of the other requirements of 

clause 652.225–72. 

625.7103 Contract clause. 

The contracting officer shall insert the 

clause at 652.225–72, 

Nondiscrimination in Foreign 

Assistance, in full text in all 

solicitations and contracts using foreign 

assistance funds, including solicitations 

and contracts using FAR Part 12 

procedures for the acquisition of 

commercial products and commercial 

services. 

PART 652—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. The authority citation for Part 652 

continues to read as follows: 

Authority: 22 U.S.C. 2651a, 40 U.S.C. 

121(c) and 48 CFR chapter 1. 

■ 4. Add Section 652.225–72 to read as 

follows: 

652.225–72 Nondiscrimination in Foreign 

Assistance. 

As prescribed in 625.7103, insert the 

following clause: 

Nondiscrimination in Foreign 

Assistance (Date) 

(a) Unless expressly stated in the award, no 

contractor or subcontractor receiving a 

foreign assistance award shall discriminate 

on the basis of race, ethnicity, color, religion, 

sex, gender, sexual orientation, gender 

identity or expression, sex characteristics, 

pregnancy, national origin, disability, age, 

genetic information, indigeneity, marital 

status, parental status, political affiliation, or 

veteran’s status against: 

(1) Any end user, prospective end user, or 

beneficiary of the contract supplies or 

services, such as, but not limited to, 

discrimination by withholding, denying, or 

adversely impacting equitable access to the 

supplies or services; or 

(2) Any employee, agent, or candidate for 

a position, who is or will be engaged directly 

in the performance of this contract and 

whose work will be funded in whole or in 

part by funds provided under this contract, 

unless expressly permitted by applicable U.S. 

law. 

(b) Nothing in this clause is intended to 

limit the ability of a contractor to target 

activities toward the assistance needs of 

certain populations as defined in the contract 

or to otherwise comply with antidiscrimination programs. 

(c) The Contractor shall inform its 

workforce and end users, in their 

predominant language(s), of the 

nondiscrimination notices required by 

paragraphs (d) and (f) of this clause. The 

Contractor shall display the notices in 

prominent and accessible places commonly 

available to its employees and end users. 

(d) The Contractor shall notify end users 

and prospective end users that the Contractor 

is prohibited from discriminating on the 

basis of race, ethnicity, color, religion, sex, 

gender, sexual orientation, gender identity or 

expression, sex characteristics, pregnancy, 

national origin, disability, age, genetic 

information, indigeneity, marital status, 

parental status, political affiliation, or 

veteran’s status within the target population 

of a foreign assistance award. The notice 

shall include the telephone number, email 

address, and mailing address of the 

Department of State Inspector General to 

report potential violations of this clause. 

(e) The Contractor is responsible for 

compliance by its subcontractors with the 

terms and conditions of this clause, 

including sanctions for noncompliance, and 

shall take action to enforce them as the 

Contracting Officer may direct. 

(f) The Contractor shall: 

(1) Notify its employees and agents of: 

(i) The prohibition on discrimination 

described in paragraph (a) of this clause; 

(ii) The contact information of the 

Department of State Inspector General and 

the U.S. Government’s Fraud, Waste, and 

Abuse hotline to report violations or 

suspected violations of this clause; and 

(iii) The actions that will be taken against 

employees or agents for violations of this 

clause, which may include, but are not 

limited to, removal from the contract, 

reduction in benefits, or termination of 

employment; and 

(2) Take appropriate action, up to and 

including termination, against employees, 

agents, or subcontractors that violate the 

nondiscrimination requirement in paragraph 

(a). 

(g) Notification. 

(1) The Contractor shall inform the 

Contracting Officer and the Department of 

State’s Inspector General immediately of: 

(i) Any credible information it receives 

from any source (including host country law 


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enforcement) that alleges a Contractor 

employee, subcontractor, subcontractor 

employee, or their agent has engaged in 

conduct that violates paragraph (a) of this 

clause; and 

(ii) Any actions taken against a Contractor 

employee, subcontractor, subcontractor 

employee, or their agent pursuant to this 

clause. 

(2) If the allegation may be associated with 

more than one contract, the Contractor shall 

inform the Contracting Officer for the 

contract with the highest dollar value. 

(h) Remedies. In addition to other remedies 

available to the Government, the Contractor’s 

failure to comply with the requirements of 

this clause may result in any, or a 

combination of, the following: 

(1) Requiring the Contractor to remove a 

Contractor employee or employees from the 

performance of the contract; 

(2) Requiring the Contractor to terminate a 

subcontract; 

(3) Suspension of contract payments until 

the Contractor has taken appropriate 

remedial action; 

(4) Loss of award fee, consistent with the 

award fee plan, for the performance period in 

which the Government determined 

Contractor noncompliance; 

(5) Declining to exercise available options 

under the contract; 

(6) Termination of the contract for default 

or cause, in accordance with the termination 

clause of this contract; or 

(7) Suspension or debarment. 

(i) The Contractor shall insert this clause, 

including this paragraph, in all subcontracts 

under this contract. 

(End of clause) 

Kevin E. Bryant, 

Deputy Director, Office of Directives 

Management, Department of State. 

[FR Doc. 2024–00972 Filed 1–18–24; 8:45 am] 

BILLING CODE 4710–24–P 


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