[Federal Register: September 6, 2000 (Volume 65, Number 173)]
[Proposed Rules]
[Page 54103-54107]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06se00-25]
[[Page 54103]]
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Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Parts 22 and 52
Federal Acquisition Regulation; Prohibition of Acquisition of Products
Produced by Forced or Indentured Child Labor; Proposed Rule
Bureau of International Labor Affairs; Preliminary List of Products
Requiring Federal Contractor Certification as to Forced or Indentured
Child Labor Under Executive Order No. 13126; Request for Comments;
Notice
[[Page 54104]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAR Case 1999-608]
RIN 9000-AI51
Federal Acquisition Regulation; Prohibition of Acquisition of
Products Produced by Forced or Indentured Child Labor
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement the specific
requirements of Executive Order 13126, Prohibition of Acquisition of
Products Produced by Forced or Indentured Child Labor, as well as to
prescribe further appropriate actions to comply with the broad policy
of the Executive order (i.e., to enforce laws prohibiting the
manufacture or importation of products that have been mined, produced,
or manufactured wholly or in part using forced or indentured child
labor.)
DATES: Interested parties should submit comments in writing on or
before November 6, 2000 to be considered in the formulation of a final
rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 1800 F Street,
NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
Address e-mail comments submitted via the Internet to:
farcase.1999-608@gsa.gov. Please submit comments only and cite FAR case
1999-608 in all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Linda Klein, Procurement Analyst, at (202) 501-
3775. Please cite FAR case 1999-608.
SUPPLEMENTARY INFORMATION:
A. Background
On June 12, 1999, the President signed Executive Order 13126,
Prohibition of Acquisition of Products Produced by Forced or Indentured
Child Labor (the Order). The Order states a broad policy that executive
agencies shall take appropriate actions to enforce the laws prohibiting
the manufacture or importation of products mined, produced, or
manufactured wholly or in part by forced or indentured child labor. The
Department of Labor, in consultation with the Department of Treasury
and the Department of State, must publish in the Federal Register a
list of products (the List) identified by their country of origin that
there is a reasonable basis to believe may have been mined, produced,
or manufactured by forced or indentured child labor. The Order does not
apply to any contract that does not exceed the micro-purchase
threshold. The Order also does not apply to any contract for the
procurement of any product mined, produced, or manufactured in a
country that is party to the Agreement on Government Procurement or the
North American Free Trade Agreement (NAFTA), if the contract amount is
equal to or greater than the United States threshold specified in the
Agreement on Government Procurement or NAFTA, whichever is applicable.
In accordance with the policy stated in the Order, the proposed
rule creates a comprehensive scheme authorizing executive agencies to
take appropriate actions to enforce laws prohibiting the manufacture or
importation of products that have been mined, produced, or manufactured
wholly or in part using forced or indentured child labor. In general,
the proposed rule requires that an offeror furnishing end products that
appear on the List certify that it has made a good-faith effort to
determine whether forced or indentured child labor was used to mine,
produce, or manufacture any such end product and, on the basis of that
effort, the offeror is unaware of any such use of child labor. The
proposed rule empowers a contracting officer or the suspension and
debarment official of an executive agency to impose on a contractor
certain enumerated remedies, including contract termination,
suspension, or debarment, if the Government later discovers that the
contractor submitted a false certification or if the contractor fails
to cooperate with an investigation of such certification. The
contracting officer or the suspension and debarment official of an
executive agency may also impose remedies on a contractor if it is
later discovered that an end product furnished under the contract, or a
component thereof, was in fact manufactured wholly or in part using
forced or indentured child labor, notwithstanding the contractor's
good-faith certification to the contrary if it is a listed end product.
In fact, these remedies may apply even if the end product or component
is not on the List. However, the Government would not suspend or debar
a contractor unless the contractor knew of the violation.
Authority for the proposed approach comes from both Executive Order
13126 and the Federal Acquisition Regulatory Council's statutory
authority to promulgate, maintain, and amend the Federal Acquisition
Regulation (see 41 U.S.C. 421, 40 U.S.C. 486(c), 10 U.S.C. Chapters 4
and 137, and 42 U.S.C. 2473(c)).
This rule was subject to Office of Management and Budget review
under Section 6(b) of Executive Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
B. Regulatory Flexibility Act
This proposed rule is not expected 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 List
is expected to impact a small number of all contracts and therefore an
even smaller number of small entities will be impacted by the rule.
Furthermore, we expect that very few contractors are furnishing end
products or components produced by forced or indentured child labor. An
Initial Regulatory Flexibility Analysis has, therefore, not been
performed. Comments are invited from small businesses and other
interested parties. The Councils will consider comments from small
entities concerning the affected FAR subparts in accordance with 5
U.S.C. 610. Interested parties must submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAR case 1999-608), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) applies because the
proposed rule contains information collection requirements.
Accordingly, the FAR Secretariat has submitted a request for approval
of a new information collection requirement concerning Prohibition of
Acquisition of Products Produced by Forced or Indentured Child Labor to
the Office of Management and Budget under 44 U.S.C. 3501, et seq.
Annual Reporting Burden: Public reporting burden for this
collection of
[[Page 54105]]
information is estimated to average .30 hours per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
The annual reporting burden is estimated as follows:
Respondents: 500.
Responses per respondent: 1.
Total annual responses: 500.
Preparation hours per response: .30.
Total response burden hours: 250.
D. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than November 6, 2000 to: FAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, FAR Secretariat (MVR), 1800 F Street, NW, Room 4035,
Washington, DC 20405.
Public comments are particularly invited on: whether this
collection of information is necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requester may obtain a copy of the justification from the General
Services Administration, FAR Secretariat (MVR), Room 4035, Washington,
DC 20405, telephone (202) 208-7312. Please cite OMB Control Number
9000-00XX, FAR Case 1999-608, Prohibition of Acquisition of Products
Produced by Forced or Indentured Child Labor, in all correspondence.
List of Subjects in 48 CFR Parts 22 and 52
Government procurement.
Dated: August 28, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR Parts 22 and 52
be amended as set forth below:
1. The authority citation for 48 CFR Parts 22 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
2. Add Subpart 22.15 to read as follows:
Subpart 22.15--Prohibition of Acquisition of Products Produced by
Forced or Indentured Child Labor
Sec.
22.1500 Scope.
22.1501 Definitions.
22.1502 Policy.
22.1503 Procedures for acquiring end products on the List of
Products Requiring Contractor Certification as to Forced or
Indentured Child Labor.
22.1504 Violations and remedies.
22.1505 Solicitation provision and contract clause.
22.1500 Scope.
This subpart applies to acquisitions of supplies that exceed the
micro-purchase threshold.
22.1501 Definitions.
As used in this subpart--
Forced or indentured child labor means all work or service--
(1) Exacted from any person under the age of 18 under the menace of
any penalty for its nonperformance and for which the worker does not
offer himself voluntarily; or
(2) Performed by any person under the age of 18 pursuant to a
contract the enforcement of which can be accomplished by process or
penalties.
List of Products Requiring Contractor Certification as to Forced or
Indentured Child Labor means the list published by the Department of
Labor in accordance with E.O. 13126 of June 12, 1999, Prohibition of
Acquisition of Products Produced by Forced or Indentured Child Labor.
The list identifies products, by their country of origin, that the
Departments of Labor, Treasury, and State have a reasonable basis to
believe might have been mined, produced, or manufactured by forced or
indentured child labor.
22.1502 Policy.
Agencies must take appropriate action to enforce the laws
prohibiting the manufacture or importation of products that have been
mined, produced, or manufactured wholly or in part by forced or
indentured child labor (19 U.S.C. 1307, 29 U.S.C. 201, et seq., and 41
U.S.C. 35, et seq.). Agencies should make every effort to avoid
acquiring such products.
22.1503 Procedures for acquiring end products on the List of Products
Requiring Contractor Certification as to Forced or Indentured Child
Labor.
(a) When issuing a solicitation for supplies expected to exceed the
micro-purchase threshold, the contracting officer must check the List
of Products Requiring Contractor Certification as to Forced or
Indentured Child Labor (the List) (URL address to be determined) (see
22.1505(a)). Appearance of a product on the List is not a bar to
purchase of any such product mined, produced, or manufactured in the
identified country, but rather is an alert that there is a reasonable
basis to believe that such product may have been mined, produced, or
manufactured by forced or indentured child labor.
(b) The requirements of this subpart that result from the
appearance of any end product on the List do not apply to a
solicitation or contract if the identified country of origin on the
List is--
(1) Canada, and the anticipated value of the acquisition is $25,000
or more (see 25.405);
(2) Israel, and the anticipated value of the acquisition is $50,000
or more (see 25.406);
(3) Mexico, and the anticipated value of the acquisition is $54,372
or more (see 25.405); or
(4) Aruba, Austria, Belgium, Denmark, Finland, France, Germany,
Greece, Hong Kong, Ireland, Italy, Japan, Korea, Liechtenstein,
Luxembourg, Netherlands, Norway, Portugal, Singapore, Spain, Sweden,
Switzerland, or the United Kingdom and the anticipated value of the
acquisition is $177,000 or more (see 25.403(b)).
(c) Except as provided in paragraph (b) of this section, before the
contracting officer may make an award for an end product (regardless of
country of origin) of a type identified by country of origin on the
List the offeror must certify that--
(1) It will not supply any end product on the List that was mined,
produced, or manufactured in a country identified on the List for that
product, as specified in the solicitation by the contracting officer in
the Certification Regarding Knowledge of Child Labor for Listed End
Products; or
(2)(i) It has made a good faith effort to determine whether forced
or indentured child labor was used to mine, produce, or manufacture any
end product to be furnished under the contract that is on the List and
was mined, produced, or manufactured in a country identified on the
List for that product; and
(ii) On the basis of those efforts, the offeror is unaware of any
such use of child labor.
(d) Absent any actual knowledge that the certification is false,
the contracting officer must rely on the offerors' certifications in
making award decisions.
[[Page 54106]]
(e) Whenever a contracting officer has reason to believe that
forced or indentured child labor was used to mine, produce, or
manufacture an end product furnished pursuant to a contract awarded
subject to the certification required in paragraph (c) of this section,
the contracting officer must refer the matter for investigation by the
agency's Inspector General, the Attorney General, or the Secretary of
the Treasury, whichever is determined appropriate in accordance with
agency procedures, except to the extent that the end product is from
the country listed in paragraph (b) of this section, under a contract
exceeding the applicable threshold.
(f) Proper certification will not prevent the head of an agency
from imposing remedies in accordance with section 22.1504(a)(4) if it
is later discovered that the contractor has furnished an end product or
component that has in fact been mined, produced, or manufactured,
wholly or in part, using forced or indentured child labor.
22.1504 Violations and remedies.
(a) Violations. The Government may impose remedies set forth in
paragraph (b) of this section for the following violations (note that
the violations in paragraphs (a)(3) and (a)(4) of this section go
beyond violations of the requirements relating to certification of end
products) (see 22.1503):
(1) The contractor has submitted a false certification regarding
knowledge of the use of forced or indentured child labor.
(2) The contractor has failed to cooperate as required in
accordance with the clause at 52.222-YY, Child Labor Cooperation with
Authorities and Remedies, with an investigation of the use of forced or
indentured child labor by an Inspector General, the Attorney General,
or the Secretary of the Treasury.
(3) The contractor uses forced or indentured child labor in its
mining, production, or manufacturing processes.
(4) The contractor has furnished an end product or component mined,
produced, or manufactured, wholly or in part, by forced or indentured
child labor. Remedies in paragraphs (b)(2) and (b)(3) of this section
are inappropriate unless the contractor knew of the violation.
(b) Remedies. (1) The contracting officer may terminate the
contract.
(2) The suspending official may suspend the contractor in
accordance with the procedures in subpart 9.4.
(3) The debarring official may debar the contractor for a period
not to exceed 3 years in accordance with the procedures in subpart 9.4.
22.1505 Solicitation provision and contract clause.
(a) Except as provided in paragraph (b) of 22.1503, insert the
provision at 52.222-XX, Certification Regarding Knowledge of Child
Labor for Listed End Products, in all solicitations that are expected
to exceed the micro-purchase threshold and are for the acquisition of
end products (regardless of country of origin) of a type identified by
country of origin on the List of Products Requiring Contractor
Certification as to Forced or Indentured Child Labor, except
solicitations for commercial items that include the provision at
52.212-3, Offeror Representations and Certifications--Commercial Items.
The contracting officer must identify in paragraph (b) of the provision
at 52.222-XX, Certification Regarding Knowledge of Child Labor for
Listed End Products, or paragraph (i)(1) of the provision at 52.212-3
any applicable end products and countries of origin from the List. For
solicitations estimated to equal or exceed $25,000, the contracting
officer must exclude from the List in the solicitation end products
from any countries identified at 22.1503(b), in accordance with the
specified thresholds.
(b) Insert the clause at 52.222-YY, Child Labor--Cooperation with
Authorities and Remedies, in all solicitations and contracts for the
acquisition of supplies that are expected to exceed the micro-purchase
threshold.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. In section 52.212-3, revise the date of the provision; add in
alphabetical order in paragraph (a) the definition ``Forced or
indentured child labor''; and add paragraph (i) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (Date)
(a) * * *
* * * * *
Forced or indentured child labor means all work or service--
(1) Exacted from any person under the age of 18 under the menace
of any penalty for its nonperformance and for which the worker does
not offer himself voluntarily; or
(2) Performed by any person under the age of 18 pursuant to a
contract the enforcement of which can be accomplished by process or
penalties.
* * * * *
(i) Certification Regarding Knowledge of Child Labor for Listed
End Products (Executive Order 13126). [The Contracting Officer must
list in paragraph (i)(1) any end products being acquired under this
solicitation that are included in the List of Products Requiring
Contractor Certification as to Forced or Indentured Child Labor.]
(1) Listed end products.
Listed End Product________
Listed Countries of Origin________
(2) Certification. [If the Contracting Officer has identified
end products and countries of origin in paragraph (i)(1) of this
provision, then the offeror must certify to either (i)(2)(i) or
(i)(2)(ii) by checking the appropriate block.]
{time} (i) The offeror will not supply any end product listed
in paragraph (i)(1) of this provision that was mined, produced, or
manufactured in the corresponding country as listed for that
product.
{time} (ii) The offeror may supply an end product listed in
paragraph (i)(1) of this provision that was mined, produced, or
manufactured in the corresponding country as listed for that
product. The offeror certifies that it has made a good faith effort
to determine whether forced or indentured child labor was used to
mine, produce, or manufacture any end product furnished under this
contract. On the basis of those efforts, the offeror certifies that
it is not aware of any such use of child labor.
4. In section 52.212-5, revise the date of the clause and the
introductory text of paragraph (b); redesignate paragraphs (b)(16)
through (b)(27) as (b)(17) through (b)(28), respectively, and add new
paragraph (b)(16) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items (Date)
* * * * *
(b) The Contractor shall comply with the FAR clauses in this
paragraph (b) that the Contracting Officer has indicated as being
incorporated in this contract by reference to implement provisions
of law or Executive orders applicable to acquisitions of commercial
items or components:
[Contracting Officer must check as appropriate.]
* * * * *
____ (16) 52.222-YY, Child Labor--Cooperation with Authorities
and Remedies (E.O. 13126).
* * * * *
5. In section 52.213-4, revise the date of the clause; redesignate
paragraphs (b)(1)(vii) through (x) as (b)(1)(viii) through (xi),
respectively, and add new paragraph (b)(1)(vii) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other than
Commercial Items).
* * * * *
[[Page 54107]]
Terms and Conditions--Simplified Acquisitions (Other than Commercial
Items) (Date)
* * * * *
(vii) 52.222-YY, Child Labor--Cooperation with Authorities and
Remedies (DATE) (E.O. 13126). (Applies to contracts for supplies
exceeding the micro-purchase threshold.)
* * * * *
6. Add new sections 52.222-XX and 52.222-YY to read as follows:
52.222-XX Certification Regarding Knowledge of Child Labor for Listed
End Products.
As prescribed in 22.1505(a), insert the following provision:
Certification Regarding Knowledge of Child Labor for Listed End
Products (Date)
(a) Definition.
Forced or indentured child labor means all work or service--
(1) Exacted from any person under the age of 18 under the menace
of any penalty for its nonperformance and for which the worker does
not offer himself voluntarily; or
(2) Performed by any person under the age of 18 pursuant to a
contract the enforcement of which can be accomplished by process or
penalties.
(b) Listed end products. The following end product(s) being
acquired under this solicitation is (are) included in the List of
Products Requiring Contractor Certification as to Forced or
Indentured Child Labor, identified by their country of origin. There
is a reasonable basis to believe that listed end products from the
listed countries of origin may have been mined, produced, or
manufactured by forced or indentured child labor.
Listed End Product ________ ________
Listed Countries of Origin ________ ________
(c) Certification. The Government will not make award to an
offeror unless the offeror, by checking the appropriate block,
certifies to either paragraph (c)(1) or paragraph (c)(2) of this
provision.
{time} (1) The offeror will not supply any end product listed
in paragraph (b) of this provision that was mined, produced, or
manufactured in a corresponding country as listed for that end
product.
{time} (2) The offeror may supply an end product listed in
paragraph (b) of this provision that was mined, produced, or
manufactured in the corresponding country as listed for that
product. The offeror certifies that it has made a good faith effort
to determine whether forced or indentured child labor was used to
mine, produce, or manufacture such end product. On the basis of
those efforts, the offeror certifies that it is not aware of any
such use of child labor.
(End of provision)
52.222-YY Child Labor--Cooperation with Authorities and Remedies.
As prescribed in 22.1505(b), insert the following clause:
Child Labor--Cooperation with Authorities and Remedies (Date)
(a) Applicability. This clause does not apply to the extent that
the Contractor is supplying end products mined, produced, or
manufactured in--
(1) Canada, and the anticipated value of the acquisition is
$25,000 or more;
(2) Israel, and the anticipated value of the acquisition is
$50,000 or more;
(3) Mexico, and the anticipated value of the acquisition is
$54,372 or more; or
(4) Aruba, Austria, Belgium, Denmark, Finland, France, Germany,
Greece, Hong Kong, Ireland, Italy, Japan, Korea, Liechtenstein,
Luxembourg, Netherlands, Norway, Portugal, Singapore, Spain, Sweden,
Switzerland, or the United Kingdom and the anticipated value of the
acquisition is $177,000 or more.
(b) Cooperation with Authorities. To enforce the laws
prohibiting the manufacture or importation of products mined,
produced, or manufactured by forced or indentured child labor,
authorized officials may need to conduct investigations to determine
whether forced or indentured child labor was used to mine, produce,
or manufacture any product furnished under this contract. If the
solicitation includes the provision 52.222-XX, Certification
Regarding Knowledge of Child Labor for Listed End Products, the
Contractor agrees to cooperate fully with authorized officials of
the contracting agency, the Department of the Treasury, or the
Department of Justice by providing reasonable access to records,
documents, persons, or premises upon reasonable request by the
authorized officials.
(c) Violations. The Government may impose remedies set forth in
paragraph (d) for the following violations:
(1) The Contractor has submitted a false certification regarding
knowledge of the use of forced or indentured child labor for listed
end products.
(2) The Contractor has failed to cooperate, if required, in
accordance with paragraph (b) of this clause, with an investigation
of the use of forced or indentured child labor by an Inspector
General, Attorney General, or the Secretary of the Treasury.
(3) The Contractor uses forced or indentured child labor in its
mining, production, or manufacturing processes.
(4) The Contractor has furnished under the contract end products
or components that have been mined, produced, or manufactured wholly
or in part by forced or indentured child labor. (The Government will
not pursue remedies at paragraph (d)(2) or paragraph (d)(3) of this
clause unless sufficient evidence indicates that the Contractor knew
of the violation.)
(d) Remedies. (1) The Contracting Officer may terminate the
contract.
(2) The suspending official may suspend the Contractor in
accordance with procedures in FAR subpart 9.4.
(3) The debarring official may debar the Contractor for a period
not to exceed 3 years in accordance with the procedures in FAR
subpart 9.4.
(End of clause)
[FR Doc. 00-22777 Filed 9-5-00; 8:45 am]
BILLING CODE 6820-EP-P