[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4383]


[[Page Unknown]]

[Federal Register: March 10, 1994]


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DEPARTMENT OF DEFENSE
48 CFR Part 9

[FAC 90-20; FAR Cases 93-301 and 93-306; Item II]
RIN 9000-AF40

 

Federal Acquisition Regulation; Made in America Labels/Unfair 
Trade Practices

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rules with request for comment.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed to interim rules amending 
the Federal Acquisition Regulation (FAR) to implement sections 201 and 
202 of the Defense Production Act. Section 201 directs that the FAR be 
amended to address the responsibility of contractors who engage in 
unfair trade practices as defined in section 201. Section 202 directs 
that the FAR be amended to address the responsibility of persons that 
intentionally affix a label bearing a fraudulent ``Made in America'' 
inscription to a product sold in or shipped to the United States.

DATES: Effective Date: March 10, 1994.
    Comment Date: Comments should be submitted to the FAR Secretariat 
at the address shown below on or before May 9, 1994 to be considered in 
the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS), 18th & F 
Streets NW., Room 4037, Attn.: Ms. Beverly Fayson, Washington, DC 
20405.
    Please cite FAC 90-20, FAR cases 93-301 and 93-306, as appropriate, 
in all correspondence related to these cases.

FOR FURTHER INFORMATION CONTACT:
Mr. Ralph DeStefano at (202) 501-1758 in reference to these FAR cases. 
For general information, contact the FAR Secretariat, room 4037, GS 
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-20, 
FAR cases 93-301 and 93-306, as appropriate.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 201 of the Defense Production Act (Pub. L. 102-558), 
provides that any contractor who has engaged in unfair trade practices 
may be found to lack such business integrity to affect the contractor's 
responsibility to perform a Government contract or subcontract. Section 
201 defines ``unfair trade practices'' as the commission by a 
contractor of any of the following acts: (1) A violation of section 337 
of the Tariff Act of 1930 (19 U.S.C. 1337), as determined by the 
International Trade Commission, (2) a violation, as determined by the 
Secretary of Commerce, of any agreement of the group known as the 
``Coordination Committee'' for purposes of the Export Administration 
Act of 1979 (50 U.S.C. App. 2401, et seq.) or any similar bilateral or 
multilateral export control agreement, and (3) a knowingly false 
statement regarding a material element of a certification concerning 
the foreign content of an item of supply, as determined by the 
Secretary of the Department or the head of the agency to which such 
certificate was furnished. Section 201 mandates that this statement of 
public contract law policy be implemented by amending Subpart 9.4 of 
title 48, Code of Federal Regulations, not later than 270 days after 
the date of enactment of the Defense Production Act (October 28, 1992).
    Section 202 of the Defense Production Act (Pub. L. 102-558) 
provides that any person determined to have intentionally affixed a 
label bearing a ``Made in America'' inscription (or any inscription 
having the same meaning) to a product sold in or shipped to the United 
States, when such product was not made in the United States, may be 
found to lack business integrity or business honesty to such a degree 
as to affect their responsibility to perform a Federal contract or 
subcontract. Section 202 mandates that this statement of policy be 
implemented by amending FAR Subpart 9.4 (Debarment, Suspension, and 
Ineligibility) not later than 270 days (July 28, 1993) after the date 
of enactment of the Defense Production Act (October 28, 1992).

B. Regulatory Flexibility Act

    These interim rules are 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 
changes do not impose any new requirements on contractors and the 
amendments to FAR Subpart 9.4 are mandatory. An Initial Regulatory 
Flexibility Analysis has, therefore, not been performed. Comments from 
small entities concerning the affected FAR subpart will be considered 
in accordance with 5 U.S.C. 610. Such comments must be submitted 
separately and cite 5 U.S.C. 601, et seq. (FAR cases 93-301, Made in 
America Labels, and/or 93-306, Unfair Trade Practices, as appropriate), 
in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DOD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that compelling reasons exist to promulgate these interim rules 
without prior opportunity for public comment. This action is necessary 
because the required date for issuance of regulations under Public Law 
102-558 was July 28, 1993.

List of Subjects in 48 CFR Part 9

    Government procurement.

    Dated: February 15, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.

    Therefore, 48 CFR part 9 is amended as set forth below:

PART 9--CONTRACTOR QUALIFICATIONS

    1. The authority citation for 48 CFR part 9 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).

    2. Section 9.403 is amended by adding, in alphabetical order, the 
definition ``Unfair trade practices'' to read as follows:


9.403  Definitions.

* * * * *
    Unfair trade practices, as used in this subpart, means the 
commission of any of the following acts by a contractor:
    (1) A violation of section 337 of the Tariff Act of 1930 (19 U.S.C. 
1337) as determined by the International Trade Commission.
    (2) A violation, as determined by the Secretary of Commerce, of any 
agreement of the group known as the ``Coordination Committee'' for 
purposes of the Export Administration Act of 1979 (50 U.S.C. App. 2401, 
et seq.) or any similar bilateral or multilateral export control 
agreement.
    (3) A knowingly false statement regarding a material element of a 
certification concerning the foreign content of an item of supply, as 
determined by the Secretary of the Department or the head of the agency 
to which such certificate was furnished.
    2. Section 9.406-2 is amended at the end of paragraph (a)(3) by 
removing the word ``or''; by redesignating paragraph (a)(4) as (a)(5) 
and adding new paragraphs (a)(4), (b)(3), and (b)(4) to read as 
follows:


9.406-2  Causes for debarment.

* * * * *
    (a) * * *
    (4) Intentionally affixing a label bearing a ``Made in America'' 
inscription (or any inscription having the same meaning) to a product 
sold in or shipped to the United States, when the product was not made 
in the United States (see section 202 of the Defense Production Act 
(Pub. L. 102-558)); or
    (b) * * *
    (3) Intentionally affixing a label bearing a ``Made in America'' 
inscription (or any inscription having the same meaning) to a product 
sold in or shipped to the United States, when the product was not made 
in the United States (see section 202 of the Defense Production Act 
(Pub. L. 102-558)).
    (4) Commission of an unfair trade practice as defined in 9.403 (see 
section 201 of the Defense Production Act (Pub. L. 102-558)).
* * * * *
    3. Section 9.407-2 is amended by redesignating paragraph (a)(5) as 
(a)(7) and adding new paragraphs (a)(5) and (a)(6) to read as follows:


9.407-2  Causes for suspension.

    (a) * * *
    (5) Intentionally affixing a label bearing a ``Made in America'' 
inscription (or any inscription having the same meaning) to a product 
sold in or shipped to the United States, when the product was not made 
in the United States (see section 202 of the Defense Production Act 
(Pub. L. 102-558));
    (6) Commission of an unfair trade practice as defined in 9.403 (see 
section 201 of the Defense Production Act (Pub. L. 102-558)); or
* * * * *
[FR Doc. 94-4383 Filed 3-9-94; 8:45 am]
BILLING CODE 6820-34-M