Department of the Treasury Acquisition Regulations; Contract Clause on Minority and Women Inclusion in Contractor Workforce, 50454-50456 [2012-20385]

Agencies

• DEPARTMENT OF THE TREASURY

[Federal Register Volume 77, Number 162 (Tuesday, August 21, 2012)]
[Proposed Rules]
[Pages 50454-50456]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20385]


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DEPARTMENT OF THE TREASURY

48 CFR Chapter 10

RIN 1505-AC40


Department of the Treasury Acquisition Regulations; Contract 
Clause on Minority and Women Inclusion in Contractor Workforce

AGENCY: Departmental Offices, Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of the Treasury (the Department) is proposing 
to amend the Department of the Treasury Acquisition Regulation (DTAR) 
to include a contract clause on minority and women inclusion, as 
required by the Dodd-Frank Wall Street Reform and Consumer Protection 
Act of 2010 (the Dodd-Frank Act).

DATES: Comment due date: October 22, 2012.

ADDRESSES: Interested persons are invited to submit comments on all 
aspects of this proposed rule through one of these methods:
    Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
https://www.regulations.gov. Electronic submission of comments allows 
the commenter maximum time to prepare

[[Page 50455]]

and submit a comment, ensures timely receipt, and enables the 
Department to make them available to the public. Comments submitted 
electronically through the https://www.regulations.gov Web site can be 
viewed by other commenters and interested members of the public.
    Mail: Department of the Treasury, Office of Minority and Women 
Inclusion, Attention: Contractor Clause, Room 2438, 1500 Pennsylvania 
Avenue NW., Washington, DC 20220.
    Fax and email comments will not be accepted.
    Instructions: In general, the Department will enter all comments 
received into the docket and make them available, without change, 
including any business or personal information that you provide such as 
name and address information, email addresses, or phone numbers. 
Comments, including attachments and other supporting materials, 
received are part of the public record and subject to public 
disclosure. Do not enclose any information in your comment or 
supporting materials that you consider confidential or inappropriate 
for public disclosure. Properly submitted comments will be available 
for inspection and downloading at https://www.regulations.gov.
    You may personally inspect comments at the Department of the 
Treasury Library, Room 1428, Main Treasury Building, 1500 Pennsylvania 
Avenue NW., Washington, DC. You can make an appointment to inspect 
comments by calling (202) 622-0990.

FOR FURTHER INFORMATION CONTACT: Lorraine Cole, Director, Office of 
Minority and Women Inclusion, 202-927-8181 or 
lorraine.cole@treasury.gov.

SUPPLEMENTARY INFORMATION: Section 342 of the Dodd-Frank Act, 12 U.S.C. 
5452, establishes an Office of Minority and Women Inclusion (OMWI) in 
each of certain agencies, including the Departmental Offices of the 
Department of the Treasury. Section 342(c)(2) provides that covered 
agencies shall require contractors to provide a written statement that 
the ``contractor shall ensure, to the maximum extent possible, the fair 
inclusion of women and minorities in the workforce of the contractor, 
and as applicable, subcontractors.'' This rule will implement the 
statement required by the Dodd-Frank Act through a contract clause.
    The proposed contact clause, which is similar to those adopted by 
other OMWI agencies, requires that a contractor make good faith efforts 
to include minorities and women in its workforce. This standard is 
derived from section 342(c)(3) of the Dodd-Frank Act, which provides 
for remedies, including termination, against a contractor who fails to 
make good faith efforts to include minorities and women in its 
workforce. Treasury interprets ``good faith efforts'' to mean efforts 
consistent with the Equal Protection Clause of the Constitution and 
Title VII of the Civil Rights Act of 1964, such as the identification 
and elimination of employment barriers, the widespread publication of 
employment opportunities, and other forms of outreach to minorities and 
women.
    Section 342 applies to ``all contracts * * * for services of any 
kind,'' but the section does not define the term ``contract.'' Treasury 
proposes to apply the clause to all service contracts above the 
simplified acquisition threshold. As noted above, section 342 applies 
to Treasury Departmental Offices (DO). DO does not currently include an 
office responsible for operational procurement; acquisitions in support 
of DO are performed primarily by the Internal Revenue Service Office of 
Treasury Procurement Services. The clause will be included in all 
contracts in support of requirements originating from DO, regardless of 
the Treasury component performing the acquisition.

Procedural Matters

Public Comment

    Because this proposed rule relates to public contracts, it is 
exempt from the requirements of 5 U.S.C. 553. However, it is being 
published for public comment pursuant to 41 U.S.C. 1707.

Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires agencies to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute; unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. It is hereby certified that 
this rule will not have a significant economic impact on a substantial 
number of small entities and thus no initial regulatory flexibility 
analysis is required.
    First, this rule will not affect a substantial number of small 
entities. While this rule will affect all contracts for services above 
the simplified acquisition threshold ($150,000), it will not affect a 
substantial number of small entities because it will only apply to 
those entities that actually contract with Departmental Offices. In 
fiscal year 2011, DO contracted with 370 small businesses.
    Additionally, the rule's economic impact is not expected to be 
significant. The rule satisfies the statutory requirement that 
contractors affirm a commitment to the fair inclusion of minorities and 
women in the workforce, but does so in a way that minimizes burden on 
contractors. The rule provides maximum flexibility for contractors in 
implementing the statutory requirement because it does not impose any 
specific requirements on contractor hiring. Further, most contractors 
are already subject to and have implemented other FAR requirements that 
will satisfy this rule's requirements. Essentially all contracts to 
which this requirement applies are subject to FAR Clause 52.222-26, 
Equal Opportunity, which requires, among other things, that contractors 
complete the EEO Form 1 containing workforce demographic data. Thus, 
contractors are already required to compile and retain much of the data 
required by this clause. Further, contractors with over 50 employees 
are required by Department of Labor regulations to develop affirmative 
action plans; development of and compliance with such a plan would 
normally satisfy the requirements of the clause.
    Notwithstanding the certification that this rule, if finalized, 
would not have a significant economic impact on a substantial number of 
small entities, the Department invites comments on the rule's impact on 
small entities.

Executive Order 12866

    This proposed rule is not a ``significant regulatory action'' for 
the purposes of Executive Order 12866.

Paperwork Reduction Act

    The information collections contained in the notice of proposed 
rulemaking have been previously approved by the Office of Management 
and Budget (OMB) and assigned control number 1505-0080. Under the 
Paperwork Reduction Act (44 U.S.C. chapter 35), an agency may not 
conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a valid OMB control 
number.

Lists of Subjects in 48 CFR Parts 1022 and 1052

    Government procurement.


[[Page 50456]]


    Dated: August 8, 2012.
Lorraine Cole,
Director, Office of Minority and Women Inclusion, Department of the 
Treasury.

    For the reasons set forth in the preamble, the Department proposes 
to amend 48 CFR Chapter 10 as follows:

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 1022--MINORITY AND WOMEN INCLUSION

    1. Add part 1022 to read as follows:
Subpart 1022.7--Fair Inclusion of Minorities and Women in Contractor's 
Workforce
Sec.
1022.7000 Contract clause.

    Authority: 12 U.S.C. 5452.

Subpart 1022.7--Fair Inclusion of Minorities and Women in 
Contractor's Workforce

1022.7000 Contract clause.
    Insert the clause at 1052.222-70, Minority and Women Inclusion, in 
all solicitations and contracts in support of Departmental Offices for 
services that exceed the simplified acquisition threshold.

SUBCHAPTER H--CLAUSES AND FORMS

PART 1052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    2. Add subpart 1052.2 to read as follows:
Subpart 1052.2--Texts of Provisions and Clauses
Sec.
1052.222-70 Minority and Women Inclusion.

    Authority: 12 U.S.C. 5452(c)(2).

Subpart 1052.2--Texts of Provisions and Clauses


Sec.  1052.222-70   Minority and women inclusion.

    As prescribed in 1022.7000, insert the following clause:
    ``Contractor confirms its commitment to equal opportunity in 
employment and contracting. To implement this commitment, the 
Contractor shall ensure, to the maximum extent possible consistent with 
applicable law, the fair inclusion of minorities and women in its 
workforce. The Contractor shall insert the substance of this clause in 
all subcontracts under this Contract whose dollar value exceeds 
$150,000. Within ten business days of a written request from the 
contracting officer, or such longer time as the contracting officer 
determines, and without any additional consideration required from the 
Agency, the Contractor shall provide documentation, satisfactory to the 
Agency, of the actions it (and as applicable, its subcontractors) has 
undertaken to demonstrate its good faith effort to comply with the 
aforementioned provisions. For purposes of this contract, ``good faith 
effort'' may include actions by the contractor intended to identify 
and, if present, remove barriers to minority and women employment or 
expansion of employment opportunities for minorities and women within 
its workforce. Efforts to remove such barriers may include, but are not 
limited to, recruiting minorities and women, providing job-related 
training, or other activity that could lead to those results.
    ``The documentation requested by the contracting officer to 
demonstrate ``good faith effort'' may include, but is not limited to, 
one or more of the following:
    1. The total number of Contractor's employees, and the number of 
minority and women employees, by race, ethnicity, and gender (e.g., an 
EEO-1);
    2. A list of subcontract awards under the Contract that includes: 
dollar amount, date of award, and subcontractor's race, ethnicity, and/
or gender ownership status;
    3. Information similar to that required in item 1, above, with 
respect to each subcontractor; and/or
    4. The Contractor's plan to ensure that minorities and women have 
appropriate opportunities to enter and advance within its workforce, 
including outreach efforts.
    ``Consistent with Section 342(c)(3) of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (Pub. L. 111-203) (Dodd-Frank Act), 
a failure to demonstrate to the Director of the Agency's Office of 
Minority and Women Inclusion such good faith efforts to include 
minorities and women in the Contractor's workforce (and as applicable, 
the workforce of its subcontractors), may result in termination of the 
Contract for default, referral to the Office of Federal Contract 
Compliance Programs, or other appropriate action.
    ``For purposes of this clause, the terms ``minority,'' ``minority-
owned business'' and ``women-owned business'' shall have the meanings 
set forth in Section 342(g) of the Dodd-Frank Act.''

[FR Doc. 2012-20385 Filed 8-20-12; 8:45 am]
BILLING CODE 4810-25-P