Defense Federal Acquisition Regulation Supplement: Employment Transparency Regarding Individuals Who Perform Work in the People's Republic of China (DFARS Case 2022-D010), 12861-12862 [2023-04029]
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Federal Register / Vol. 88, No. 40 / Wednesday, March 1, 2023 / Rules and Regulations
13175 that would require a tribal
summary impact statement. The
rescission does not ‘‘have substantial
direct effects on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.’’
DEPARTMENT OF DEFENSE
List of Subjects in 41 CFR Part 60–1
Defense Federal Acquisition
Regulation Supplement: Employment
Transparency Regarding Individuals
Who Perform Work in the People’s
Republic of China (DFARS Case 2022–
D010)
Administrative practice and
procedure, Civil rights, Employment,
Equal employment opportunity,
Government contracts, Government
procurement, Investigations, Labor,
Reporting and recordkeeping
requirements.
1. The authority citation for part 60–
1 continues to read as follows:
■
Authority: Sec. 201, E.O. 11246, 30 FR
12319, 3 CFR, 1964–1965 Comp., p. 339, as
amended by E.O. 11375, 32 FR 14303, 3 CFR,
1966–1970 Comp., p. 684, E.O. 12086, 43 FR
46501, 3 CFR, 1978 Comp., p. 230, E.O.
13279, 67 FR 77141, 3 CFR, 2002 Comp., p.
258 and E.O. 13672, 79 FR 42971.
[Amended]
2. Amend § 60–1.3 by removing the
following:
■ a. Definitions of ‘‘Particular religion,’’
‘‘Religion,’’ ‘‘Religious corporation,
association, educational institution, or
society,’’ and ‘‘Sincere.’’
■ b. Paragraphs (a) and (b).
[Amended]
3. Amend § 60–1.5 by removing
paragraphs (e) and (f).
■
[FR Doc. 2023–04150 Filed 2–28–23; 8:45 am]
ddrumheller on DSK120RN23PROD with RULES
BILLING CODE 4510–CM–P
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DoD is adopting as final,
without change, an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2022 that requires a
disclosure from entities that employ one
or more individuals who will perform
work in the People’s Republic of China.
DATES: Effective March 1, 2023.
FOR FURTHER INFORMATION CONTACT:
Kimberly Bass, telephone 703–717–
3446.
SUPPLEMENTARY INFORMATION:
SUMMARY:
PART 60–1—OBLIGATIONS OF
CONTRACTORS AND
SUBCONTRACTORS
§ 60–1.5
[Docket DARS–2022–0020]
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
For the reasons set forth in the
preamble, OFCCP amends 41 CFR part
60–1 as follows:
■
48 CFR Parts 212, 225, and 252
AGENCY:
Jenny R. Yang,
Director, Office of Federal Contract
Compliance Programs.
§ 60–1.3
Defense Acquisition Regulations
System
I. Background
DoD published an interim rule in the
Federal Register at 87 FR 52339 on
August 25, 2022, to implement section
855 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2022 (Pub. L. 117–81, 10
U.S.C. 4651 note prec.). Section 855
requires offerors, when submitting a bid
or proposal for a covered contract, to
disclose their use of workforce and
facilities in the People’s Republic of
China, if they employ one or more
individuals who will perform work in
the People’s Republic of China, unless
a national security waiver has been
granted. A recurring disclosure is also
required for fiscal years 2023 and 2024,
for contractors that are covered entities
and are a party to one or more covered
contracts in each fiscal year, to disclose
if the contractor employs one or more
individuals who perform work in the
People’s Republic of China on any such
contract. One respondent submitted a
public comment in response to the
interim rule.
II. Discussion and Analysis
DoD reviewed the public comment in
the development of the final rule. No
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12861
changes were made to the rule as a
result of the comment. A discussion of
the public comment, which stated
support for the rule, is provided as
follows:
Comment: The respondent supported
the disclosure requirement in the
interim rule, stating that an outright ban
for contracts exceeding the $5 million
threshold would be inappropriate and
would not allow a follow-on
investigation to reach a determination
that protects our national security
interests while minimizing the effects
on businesses and individuals.
Response: DoD acknowledges the
support for the rule.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Services and Commercial Products,
Including Commercially Available Offthe-Shelf (COTS) Items
The requirements of section 855 of the
NDAA for FY 2022 apply to covered
contracts valued in excess of $5 million,
excluding contracts for commercial
products or commercial services.
Therefore, DoD is not applying the rule
to contracts at or below the SAT or to
contracts for the acquisition of
commercial services or commercial
products, including COTS items.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. The Office of
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Federal Register / Vol. 88, No. 40 / Wednesday, March 1, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
This rule is required to implement
section 855 of the National Defense
Authorization Act (NDAA) for Fiscal
Year 2022 (Pub. L. 117–81, 10 U.S.C.
4651 note prec.). The objective of the
rule is to implement section 855 of the
NDAA for FY 2022 to require offerors,
when submitting a proposal for a
covered contract, to disclose their use of
workforce and facilities in the People’s
Republic of China if they employ one or
more individuals who will perform
work in the People’s Republic of China,
unless a national security waiver has
been granted. A national security waiver
may be granted if a determination is
made that such disclosure would not be
in the interest of national security.
Recurring disclosures are required
following contract award for contractors
that are covered entities for fiscal years
2023 and 2024. The initial and recurring
disclosures must include the total
number of individuals who will perform
work in the People’s Republic of China
on the covered contracts and a
description of the physical presence of
the facility, including the street address,
where work on the covered contract will
be performed.
There were no significant issues
raised by the public comments in
response to the initial regulatory
flexibility analysis.
Federal Procurement Data System
(FPDS) data was analyzed for fiscal
years 2019, 2020, and 2021, purchases
of supplies or end products and services
for which the place of manufacture,
place of performance, or country of the
product’s origin is China; with a value
above $5 million; and excluding
commercial services, commercial
products, and commercially available
off-the-shelf (COTS) items. The FPDS
data revealed no awards that met these
criteria.
In addition, a data analysis was
performed on the North Atlantic Treaty
Organization (NATO) Commercial and
Government Entity (NCAGE) codes from
the NATO Support and Procurement
Agency (NSPA) for entities located in
the People’s Republic of China,
including Hong Kong. This review
revealed a total of 5,143 entities. There
were 4,706 entities in the People’s
Republic of China with NCAGE codes,
and 437 entities in Hong Kong with
VerDate Sep<11>2014
16:10 Feb 28, 2023
Jkt 259001
NCAGE codes. This list of NCAGE codes
was compared to any People’s Republic
of China or Hong Kong NCAGE codes
from the FPDS data results for a list of
contract awards in fiscal years 2019,
2020 and 2021. Similarly, there were no
contract awards to any unique entities
or small business entities meeting the
criteria.
There are projected reporting or
recordkeeping requirements, and there
may be costs to ensure compliance. The
contractor’s postaward disclosure is
required for fiscal years 2023 and 2024,
to disclose if a contractor that is a
covered entity employs one or more
individuals who perform work in the
People’s Republic of China on a covered
contract. The disclosure must include
the total number of individuals who
will perform work in the People’s
Republic of China on the contract and
a description of the exact street location
of the physical presence in China where
the work on the contract will be
performed.
There are no known alternate
approaches to the rule that would meet
the objectives of the statute.
DEPARTMENT OF DEFENSE
VII. Paperwork Reduction Act
I. Background
This rule implements section 815 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2021 (Pub.
L. 116–283), which strengthened the
requirement that DoD establish a goal to
pay small business contractors within
15 days of receipt of an invoice. In
particular, section 815(1) of the NDAA
for FY 2021 amended 10 U.S.C.
2307(a)(2)(A) (now located in 10 U.S.C.
3801) by striking the language ‘‘if a
specific payment date is not established
by contract.’’ Section 815(2) of the
NDAA for FY 2021 amended 10 U.S.C.
2307(a)(2)(B) by striking the language ‘‘if
the prime contractor agrees’’ and
replacing it with the language ‘‘if the
prime contractor agrees or proposes.’’
Section 814 of the NDAA for FY 2022
(Pub. L. 117–81) rescinded section
815(2) of the NDAA for FY 2021.
In related Federal Acquisition
Regulation (FAR) Case 2020–007, DoD,
GSA, and NASA published a proposed
rule at 86 FR 53923 on September 29,
2021, to implement a policy that
provides for accelerated payments to
contractors that are small businesses
and to small business subcontractors by
accelerating payments to their prime
contractors. This change to the FAR
implements section 873 of the NDAA
for FY 2020 (Pub. L. 116–92). Section
873 requires agencies to establish an
accelerated payment date for small
business prime contractors, to the fullest
This rule contains information
collection requirements that have been
approved by the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
This information collection requirement
has been assigned OMB Control Number
0750–0005, entitled Defense Federal
Acquisition Regulation Supplement
(DFARS), Disclosure of Employment of
Individuals Who Work in the People’s
Republic of China.
List of Subjects in 48 CFR Parts 212,
225, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Accordingly, the interim rule
implementing 48 CFR parts 212, 225,
and 252, which was published at 87 FR
52339 on August 25, 2022, is adopted as
final without change.
■
[FR Doc. 2023–04029 Filed 2–28–23; 8:45 am]
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Defense Acquisition Regulations
System
48 CFR Parts 212, 232, and 252
[Docket DARS–2023–0004]
RIN 0750–AL27
Defense Federal Acquisition
Regulation Supplement: Prompt
Payment of Contractors (DFARS Case
2021–D008)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to remove a clause and the
associated prescription that are no
longer necessary.
DATES: Effective March 16, 2023.
FOR FURTHER INFORMATION CONTACT:
David E. Johnson, telephone 202–913–
5764.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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[Federal Register Volume 88, Number 40 (Wednesday, March 1, 2023)]
[Rules and Regulations]
[Pages 12861-12862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04029]
=======================================================================
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
[Docket DARS-2022-0020]
RIN 0750-AL61
Defense Federal Acquisition Regulation Supplement: Employment
Transparency Regarding Individuals Who Perform Work in the People's
Republic of China (DFARS Case 2022-D010)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is adopting as final, without change, an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement a section of the National Defense Authorization Act for
Fiscal Year 2022 that requires a disclosure from entities that employ
one or more individuals who will perform work in the People's Republic
of China.
DATES: Effective March 1, 2023.
FOR FURTHER INFORMATION CONTACT: Kimberly Bass, telephone 703-717-3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register at 87 FR
52339 on August 25, 2022, to implement section 855 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L.
117-81, 10 U.S.C. 4651 note prec.). Section 855 requires offerors, when
submitting a bid or proposal for a covered contract, to disclose their
use of workforce and facilities in the People's Republic of China, if
they employ one or more individuals who will perform work in the
People's Republic of China, unless a national security waiver has been
granted. A recurring disclosure is also required for fiscal years 2023
and 2024, for contractors that are covered entities and are a party to
one or more covered contracts in each fiscal year, to disclose if the
contractor employs one or more individuals who perform work in the
People's Republic of China on any such contract. One respondent
submitted a public comment in response to the interim rule.
II. Discussion and Analysis
DoD reviewed the public comment in the development of the final
rule. No changes were made to the rule as a result of the comment. A
discussion of the public comment, which stated support for the rule, is
provided as follows:
Comment: The respondent supported the disclosure requirement in the
interim rule, stating that an outright ban for contracts exceeding the
$5 million threshold would be inappropriate and would not allow a
follow-on investigation to reach a determination that protects our
national security interests while minimizing the effects on businesses
and individuals.
Response: DoD acknowledges the support for the rule.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Services and Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
The requirements of section 855 of the NDAA for FY 2022 apply to
covered contracts valued in excess of $5 million, excluding contracts
for commercial products or commercial services. Therefore, DoD is not
applying the rule to contracts at or below the SAT or to contracts for
the acquisition of commercial services or commercial products,
including COTS items.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
[[Page 12862]]
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
This rule is required to implement section 855 of the National
Defense Authorization Act (NDAA) for Fiscal Year 2022 (Pub. L. 117-81,
10 U.S.C. 4651 note prec.). The objective of the rule is to implement
section 855 of the NDAA for FY 2022 to require offerors, when
submitting a proposal for a covered contract, to disclose their use of
workforce and facilities in the People's Republic of China if they
employ one or more individuals who will perform work in the People's
Republic of China, unless a national security waiver has been granted.
A national security waiver may be granted if a determination is made
that such disclosure would not be in the interest of national security.
Recurring disclosures are required following contract award for
contractors that are covered entities for fiscal years 2023 and 2024.
The initial and recurring disclosures must include the total number of
individuals who will perform work in the People's Republic of China on
the covered contracts and a description of the physical presence of the
facility, including the street address, where work on the covered
contract will be performed.
There were no significant issues raised by the public comments in
response to the initial regulatory flexibility analysis.
Federal Procurement Data System (FPDS) data was analyzed for fiscal
years 2019, 2020, and 2021, purchases of supplies or end products and
services for which the place of manufacture, place of performance, or
country of the product's origin is China; with a value above $5
million; and excluding commercial services, commercial products, and
commercially available off-the-shelf (COTS) items. The FPDS data
revealed no awards that met these criteria.
In addition, a data analysis was performed on the North Atlantic
Treaty Organization (NATO) Commercial and Government Entity (NCAGE)
codes from the NATO Support and Procurement Agency (NSPA) for entities
located in the People's Republic of China, including Hong Kong. This
review revealed a total of 5,143 entities. There were 4,706 entities in
the People's Republic of China with NCAGE codes, and 437 entities in
Hong Kong with NCAGE codes. This list of NCAGE codes was compared to
any People's Republic of China or Hong Kong NCAGE codes from the FPDS
data results for a list of contract awards in fiscal years 2019, 2020
and 2021. Similarly, there were no contract awards to any unique
entities or small business entities meeting the criteria.
There are projected reporting or recordkeeping requirements, and
there may be costs to ensure compliance. The contractor's postaward
disclosure is required for fiscal years 2023 and 2024, to disclose if a
contractor that is a covered entity employs one or more individuals who
perform work in the People's Republic of China on a covered contract.
The disclosure must include the total number of individuals who will
perform work in the People's Republic of China on the contract and a
description of the exact street location of the physical presence in
China where the work on the contract will be performed.
There are no known alternate approaches to the rule that would meet
the objectives of the statute.
VII. Paperwork Reduction Act
This rule contains information collection requirements that have
been approved by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35). This information
collection requirement has been assigned OMB Control Number 0750-0005,
entitled Defense Federal Acquisition Regulation Supplement (DFARS),
Disclosure of Employment of Individuals Who Work in the People's
Republic of China.
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
0
Accordingly, the interim rule implementing 48 CFR parts 212, 225, and
252, which was published at 87 FR 52339 on August 25, 2022, is adopted
as final without change.
[FR Doc. 2023-04029 Filed 2-28-23; 8:45 am]
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