[Federal Register Volume 65, Number 173 (Wednesday, September 6, 2000)]
[Proposed Rules]
[Pages 54104-54107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22777]



[[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

  Federal Register / Vol. 65, No. 173 / Wednesday, September 6, 2000 / 
Proposed Rules  

[[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: 
[email protected]. 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