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[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76295-76297]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30669]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 222 and 252

RIN 0750-AG70

Defense Federal Acquisition Regulation Supplement; Restrictions 
on the Use of Mandatory Arbitration Agreements (DFARS Case 2010-D004)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is converting an interim rule to a final rule with 
changes. The interim rule implemented section 8116 of the DoD 
Appropriations Act for Fiscal Year 2010 to restrict the use of 
mandatory arbitration agreements when awarding contracts that exceed $1 
million when using Fiscal Year 2010 funds appropriated or otherwise 
made available by the DoD Appropriations Act. It allows the Secretary 
of Defense to waive applicability to a particular contractor or 
subcontractor, if determined necessary to avoid harm to national 
security.

DATES: Effective date: December 8, 2010.

FOR FURTHER INFORMATION CONTACT: Mr. Julian E. Thrash, 703-602-0310.

SUPPLEMENTARY INFORMATION: 

I. Background

    An interim rule was published in the Federal Register at 75 FR 
27946 on May 19, 2010, to implement section 8116 of the DoD 
Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118). This section 
prohibits the use of funds appropriated or otherwise made available by 
the DoD Appropriations Act for Fiscal Year 2010 for any contract 
(including task or delivery orders and bilateral modifications adding 
new work) in excess of $1 million, if the contractor restricts its 
employees to arbitration for claims under title VII of the Civil Rights 
Act of 1964, or torts related to or arising out of sexual assault or 
harassment, including assault and battery, intentional infliction of 
emotional distress, false imprisonment, or negligent hiring, 
supervision, or retention (hereinafter the ``covered areas'').
    This rule does not apply to the acquisition of commercial items, 
including commercially available off-the-shelf items. After June 17, 
2010, section 8116(b) requires the contractor to certify compliance by 
subcontractors.
    Additionally, enforcement of this rule does not affect the 
enforcement of other aspects of an agreement that is not related to the 
covered areas.
    This rule allows the Secretary of Defense to waive applicability to 
a particular contract or subcontract, if determined necessary to avoid 
harm to national security.
    The public comment period for the interim rule closed July 19, 
2010. Four respondents submitted comments to the interim rule. A 
discussion of the comments and the changes made to the rule as a result 
of those comments is provided below.
    1. Definition of a ``contractor.'' One respondent objected to the 
interim rule's application of the term ``contractor'' only to the 
entity that has the contract. In the Federal Register Notice, the term 
``contractor'' was used in one of several examples provided to help 
determine rule applicability. In the particular example, the term 
``contractor'' was described as being narrowly applied only to the 
entity that has the contract. Unless a parent or subsidiary corporation 
is a party to the contract, they are not affected. The respondent 
stated that there was no justification for using such a narrow 
definition of a ``contractor'' and there is good reason to use a 
broader definition. The respondent suggested that the narrow definition 
of ``contractor'' heightens the potential for contractors to establish 
shell companies to circumvent the law. The respondent stated that in 
past regulations, different contexts have led to different definitions 
of ``contractor''--sometimes broader, sometimes narrower, and that the 
definition used in the Federal Register is not absolutely determined by 
fixed precedent or other controlling authority.
    Response: Expanding the definition of ``contractor'' to include 
parents and subsidiaries would require a change to the language of 
section 8116, which by its terms, is limited to employees of the 
contractor who was awarded the contract. The text of the statute does 
not provide a basis for making a broader application. With respect to 
the concern regarding the potential for the establishment of shell 
companies as a means of circumventing the requirement, such practices 
would be noted in responsibility determinations. In addition, guidance 
will be included in Procedures Guidance and Information which cautions 
contracting officers that, if they believe that, in fact, there is 
evidence that a contractor has created a shell company for the purpose 
of obviating section 8116, the contracting officer shall not award the 
contract and shall report such a condition to the Director, Defense 
Procurement and Acquisition Policy.
    2. Definition of a ``covered contract.'' One respondent recommended 
that 252.222-7006, Restrictions on the Use of Mandatory Arbitration 
Agreements, be amended to include a definition of a ``covered 
contract.''
    Response: DoD does not agree. DFARS 222.7401, Policy, and 222.7404, 
Contract Clause, provide sufficient detail on the use of 252.222-7006, 
Restrictions on the Use of Mandatory Arbitration Agreements, and make 
it clear what constitutes a ``covered contract.'' There is no 
additional benefit to be derived from repeating the language set forth 
at either 222.7401 or 222.7404 in a separate definition of a ``covered 
contract.''
    3. Definition of ``subcontract.'' One respondent recommended that 
the final rule should delete the definition of ``subcontract'' at 
222.7401, Policy. The respondent stated that since FAR 44.101 already 
defines the term ``subcontract,'' an additional definition is 
unnecessary.
    Response: DoD does not agree. It appears that the respondent 
incorrectly referenced 222.7401, Policy. The

[[Page 76296]]

interim rule at 222.7401 does not include a definition of a 
``subcontract.'' It may be that the respondent was referring to the 
definition of ``subcontract'' included in 252.222-7006(a), Restrictions 
on the Use of Mandatory Arbitration Agreements. DoD has determined that 
the definition included therein is appropriate because it makes clear 
that subcontracts are limited to those contracts placed by the 
contractor or higher-tier subcontractors that are specifically for the 
furnishing of supplies or services for the performance of the contract, 
not supplies or services a contractor or higher-tier subcontractor 
might purchase for other purposes.
    4. Secretary of Defense waiver process. Two respondents recommended 
that the final rule explain how the Secretary of Defense's waiver 
authority is to be exercised.
    Response: DoD agrees. The waiver process and the conditions under 
which it is to be exercised and reported to Congress as set forth in 
section 8116(d) are set out in the final rule at 222.7403. In the 
waiver process, a waiver determination must set forth the grounds for 
the waiver with specificity, state any alternatives considered, and 
explain why each of the alternatives would not avoid harm to national 
security interests. DFARS 222.7403, Waiver, was revised to incorporate 
text on the particular requirements for the waiver determination 
previously reserved for the DFARS companion resource, Procedures, 
Guidance, and Information. The text was reordered and clarified by 
adding paragraph numbers.
    5. Applicability to task or delivery orders. One respondent 
recommended that the language at 222.7401(a), Policy, delete the 
reference to task or delivery orders and bilateral modifications adding 
new work.
    Response: DoD does not agree. In accordance with FAR 2.101, a 
contract includes all types of commitments that obligate the Government 
to an expenditure of appropriated funds. Task orders and delivery 
orders obligate funding, and if they utilize funds appropriated or 
otherwise made available by the DoD Appropriations Act for Fiscal Year 
2010 that are in excess of $1 million, the section 8116 restriction 
would apply.
    6. Modification to the contract for latest version of clause. One 
respondent recommended that contractors may request, and the 
contracting officers provide, a modification to the contract that 
incorporates the latest version of the clause with no consideration to 
be given to the contractor.
    Response: DoD does not agree. The contracting officer can agree to 
a bilateral modification of the contract in accordance with FAR 
1.108(d), which requires consideration. However, the contracting 
officer has flexibility in determining what would represent adequate 
consideration.
    7. First-tier certification. One respondent recommended that the 
final rule should provide that prime contractors are required to 
certify only their first-tier subcontractors' compliance with the rule.
    Response: DoD does not agree. DoD did not find language in the DoD 
Appropriations Act for Fiscal Year 2010 that restricts coverage to 
subcontracts at the first-tier. The prohibition extends to ``covered 
subcontracts'' at all tiers.
    8. Clause prescription. Two respondents recommended the addition of 
language to the prescription at 222.7404 (now 222.7405) that would 
specify the applicability dates for the use of the clause.
    Response: DoD does not agree, since these dates are already set 
forth at 222.7402(b).
    9. Certification. One respondent recommended that 252.222-7006, 
Restrictions on the Use of Mandatory Arbitration Agreements, be revised 
at paragraph (b)(2) by replacing the existing language ``by signature 
of the contract, for contracts awarded after June 17, 2010'' with the 
text ``by signature of any covered contract awarded after June 17, 
2010.''
    Response: DoD does not agree. The contracting officer will only 
include the clause in a covered contract, in accordance with the clause 
prescription at 222.7404. It is the signature of the particular 
contract in which the clause is included that binds the contractor.
    10. Scope of section 8116. Two respondents submitted comments 
requesting that the final rule clearly define the scope of section 
8116's applicability to how narrowly (or broadly) the anti-arbitration 
prohibition is intended to apply to employees and independent 
contractors of covered contractors and subcontractors.
    Response: DoD does not agree. The Federal Register Notice published 
at 75 FR 27946 on May 19, 2010, made it clear that an entity or firm 
that does not have a contract in excess of $1 million appropriated or 
otherwise made available by the DoD Appropriations Act for Fiscal Year 
2010 is not affected by the clause. The term ``contractor'' is narrowly 
applied only to the entity that has the contract. Unless a parent or 
subsidiary corporation is a party to the contract, the entity is not 
affected. Therefore, the anti-arbitration bar applies to any contractor 
employee of the entity, with respect to any covered claim.

II. Executive Order 12866

    This is a significant regulatory action, and therefore, was subject 
to 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.

III. Regulatory Flexibility Act

    DoD has prepared a final regulatory flexibility analysis consistent 
with 5 U.S.C. 604. A copy of the analysis may be obtained from the 
point of contact specified herein. The analysis is summarized as 
follows:
    The objective of this rule is to implement section 8116 of the DoD 
Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118). The clause 
at 252.222-7006, Restrictions on the Use of Mandatory Arbitration 
Agreements, prohibits the use of funds appropriated or otherwise made 
available by the DoD Appropriations Act for Fiscal Year 2010 for any 
contract (including task or delivery orders and bilateral modifications 
adding new work) in excess of $1 million, if the contractor restricts 
its employees to arbitration for claims under title VII of the Civil 
Rights Act of 1964, or torts related to or arising out of sexual 
assault or harassment, including assault and battery, intentional 
infliction of emotional distress, false imprisonment, or negligent 
hiring, supervision, or retention. This rule does not apply to a 
contract for the acquisition of commercial items, including 
commercially available off-the-shelf items. It was published as an 
interim rule in the Federal Register at 75 FR 27946 on May 19, 2010. No 
comments were received from small entities on the affected DFARS 
subpart with regard to small businesses.
    Most contractors should not be impacted unless they have a covered 
claim. A significant number of small businesses provide only commercial 
items to the Government, and this rule does not apply to that portion 
of the business community. We anticipate that there will be limited, if 
any, additional costs imposed on small businesses unless there is a 
covered claim filed against a particular contractor.

IV. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

[[Page 76297]]

List of Subjects in 48 CFR Parts 222 and 252

    Government procurement.

Clare M. Zebrowski,
Editor, Defense Acquisition Regulations System.

0
Accordingly, the interim rule amending 48 CFR parts 222 and 252, which 
was published in the Federal Register at 75 FR 27946 on May 19, 2010, 
is adopted as final with the following changes:

0
1. The authority citation for 48 CFR parts 222, and 252 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    [Sections 222.7401 through 222.7404 redesignated as sections 
222.7402 through 222.7405]

0
2. Redesignate sections 222.7401 through 222.7404 as section 222.7402 
through 222.7405 respectively.

0
3. Add a new section 222.7401 to read as follows:

222.7401  Definition.

    Covered subcontractor, as used in this subpart, is defined in the 
clause at 252.222-7006, Restrictions on the Use of Mandatory 
Arbitration Agreements.

0
4. Revise newly designated sections 222.7403 through 222.7405 to read 
as follows:

222.7403  Applicability.

    This requirement does not apply to the acquisition of commercial 
items (including commercially available off-the-shelf items).

222.7404  Waiver.

    (a) The Secretary of Defense may waive, in accordance with 
paragraphs (b) through (d) of this section, the applicability of 
paragraphs (a) or (b) of 222.7402 to a particular contract or 
subcontract, if the Secretary or the Deputy Secretary personally 
determines that the waiver is necessary to avoid harm to national 
security interests of the United States, and that the term of the 
contract or subcontract is not longer than necessary to avoid such 
harm.
    (b) The waiver determination shall set forth the grounds for the 
waiver with specificity, stating any alternatives considered, and 
explain why each of the alternatives would not avoid harm to national 
security interests.
    (c) The contracting officer shall submit requests for waivers in 
accordance with agency procedures.
    (d) The Secretary of Defense will transmit the determination to 
Congress and simultaneously publish it in the Federal Register, not 
less than 15 business days before the contract or subcontract addressed 
in the determination may be awarded.

222.7405  Contract clause.

    Use the clause at 252.222-7006, Restrictions on the Use of 
Mandatory Arbitration Agreements, in all solicitations and contracts 
(including task or delivery orders and bilateral modifications adding 
new work) valued in excess of $1 million utilizing funds appropriated 
or otherwise made available by the Defense Appropriations Act for 
Fiscal Year 2010 (Pub. L. 111-118), except in contracts for the 
acquisition of commercial items, including commercially available off-
the-shelf items.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
5. Amend section 252.222-7006 by:
0
a. Revising the introductory text;
0
b. Revising the clause date; and
0
c. Revising paragraphs (b)(2) and (d) to read as follows:

252.222-7006  Restrictions on the Use of Mandatory Arbitration 
Agreements.

    As prescribed in 222.7405, use the following clause:

RESTRICTIONS ON THE USE OF MANDATORY ARBITRATION AGREEMENTS (DEC 2010)

* * * * *
    (b) * * *
    (2) Certifies, by signature of the contract, that it requires 
each covered subcontractor to agree not to enter into, and not to 
take any action to enforce, any provision of any existing 
agreements, as described in paragraph (b)(1) of this clause, with 
respect to any employee or independent contractor performing work 
related to such subcontract.
* * * * *
    (d) The Secretary of Defense may waive the applicability of the 
restrictions of paragraph (b) of this clause in accordance with 
Defense Federal Acquisition Regulation Supplement 222.7404.

(End of clause)
[FR Doc. 2010-30669 Filed 12-7-10; 8:45 am]
BILLING CODE 5001-08-P
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