Notification of Employee Rights Under Federal Labor Laws, 38488-38501 [E9-17577]

Agencies

• DEPARTMENT OF LABOR
• Office of Labor-Management Standards
• Labor-Management Standards Office

[Federal Register Volume 74, Number 147 (Monday, August 3, 2009)]
[Proposed Rules]
[Pages 38488-38501]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17577]



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Part II





Department of Labor





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Office of Labor-Management Standards



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29 CFR Part 471



Notification of Employee Rights Under Federal Labor Laws; Proposed Rule

Federal Register / Vol. 74, No. 147 / Monday, August 3, 2009 / 
Proposed Rules

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DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 471

RIN 1215-AB70


Notification of Employee Rights Under Federal Labor Laws

AGENCY: Office of Labor-Management Standards, Employment Standards 
Administration, Department of Labor.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: This Notice of Proposed Rulemaking (NPRM) proposes a 
regulation to implement Executive Order 13496, which was signed by 
President Barack Obama on January 30, 2009. Executive Order 13496 
(``the Executive Order,'' ``the Order,'' or ``EO 13496'') requires 
nonexempt Federal departments and agencies to include within their 
Government contracts specific provisions requiring that contractors and 
subcontractors with whom they do business post notices informing their 
employees of their rights as employees under Federal labor laws. The 
Executive Order requires the Secretary (``Secretary'') of the 
Department of Labor (``Department'') to initiate a rulemaking to 
prescribe the size, form, and content of the notice that must be posted 
by a contractor under paragraph 1 of the contract clause described in 
section 2 of the Order. Under the Executive Order, Federal Government 
contracting departments and agencies must include the required contract 
provisions in every Government contract, except for collective 
bargaining agreements and contracts for purchases under the Simplified 
Acquisition Threshold, and except in those cases in which the Secretary 
exempts a contracting department or agency with respect to particular 
contracts or subcontracts or class of contracts or subcontracts 
pursuant to section 4 of the Order. As required by the Executive Order, 
this proposed rule establishes the content of the notice required by 
the Executive Order's contract clause, and implements other provisions 
of the Executive Order, including provisions regarding sanctions, 
penalties, and remedies that may be imposed if the contractor or 
subcontractor fails to comply with its obligations under the Order and 
the implementing regulations.

DATES: Comments regarding this proposed rule must be received by the 
Department of Labor on or before September 2, 2009.

ADDRESSES: You may submit comments, identified by 1215-AB70, only by 
the following methods:
    Internet--Federal eRulemaking Portal. Electronic comments may be 
submitted through https://www.regulations.gov. To locate the proposed 
rule, use key words such as ``Department of Labor'' or ``Notification 
of Employee Rights Under Federal Labor Laws'' to search documents 
accepting comments. Follow the instructions for submitting comments.
    Delivery: Comments should be sent to: Denise M. Boucher, Director 
of the Office of Policy, Reports and Disclosure, Office of Labor-
Management Standards, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room N-5609, Washington, DC 20210. Because of security 
precautions the Department continues to experience delays in U.S. mail 
delivery. You should take this into consideration when preparing to 
meet the deadline for submitting comments.
    The Office of Labor-Management Standards (OLMS) recommends that you 
confirm receipt of your delivered comments by contacting (202) 693-0123 
(this is not a toll-free number). Individuals with hearing impairments 
may call (800) 877-8339 (TTY/TDD). Only those comments submitted 
through https://www.regulations.gov, hand-delivered, or mailed will be 
accepted. Comments will be available for public inspection at https://www.regulations.gov and during normal business hours at the above 
address.
    The Department will post all comments received on https://www.regulations.gov without making any change to the comments, 
including any personal information provided. The https://www.regulations.gov Web site is the Federal e-rulemaking portal and all 
comments posted there are available and accessible to the public. The 
Department cautions commenters not to include their personal 
information such as Social Security numbers, personal addresses, 
telephone numbers, and e-mail addresses in their comments as such 
submitted information will become viewable by the public via the https://www.regulations.gov Web site. It is the responsibility of the 
commenter to safeguard his or her information. Comments submitted 
through https://www.regulations.gov will not include the commenter's e-
mail address unless the commenter chooses to include that information 
as part of his or her comment.

FOR FURTHER INFORMATION CONTACT: Denise M. Boucher, Director, Office of 
Policy, Reports and Disclosure, Office of Labor-Management Standards, 
Employment Standards Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5609, Washington, DC 20210, (202) 693-
1185 (this is not a toll-free number), (800) 877-8339 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The Proposed Rule is organized as follows:

I. Background--provides a brief description of the development of 
the Proposed Rule
II. Authority--cites the legal authority supporting the Proposed 
Rule, Departmental re-delegation authority, and interagency 
coordination authority
III. Overview of the Rule--outlines the proposed regulatory text
IV. Regulatory Procedures--sets forth the applicable regulatory 
requirements and requests comments on specific issues

I. Background

    On January 30, 2009, President Barack Obama signed Executive Order 
13496, entitled ``Notification of Employee Rights Under Federal Labor 
Laws.'' 74 FR 6107 (February 4, 2009). The purpose of the Order is ``to 
promote economy and efficiency in Government procurement'' by ensuring 
that employees of certain Government contractors are informed of their 
rights under Federal labor laws. Id., Sec. 1. As the Order states, 
``When the Federal Government contracts for goods or services, it has a 
proprietary interest in ensuring that those contracts will be performed 
by contractors whose work will not be interrupted by labor unrest. The 
attainment of industrial peace is most easily achieved and workers' 
productivity is enhanced when workers are well informed of their rights 
under Federal labor laws, including the National Labor Relations Act 
(Act), 29 U.S.C. 151 et seq.'' The Order reiterates the declaration of 
national labor policy contained in the National Labor Relations Act 
(``NLRA''), 29 U.S.C. 151, that ``encouraging the practice and 
procedure of collective bargaining and * * * protecting the exercise by 
workers of full freedom of association, self-organization, and 
designation of representatives of their own choosing, for the purpose 
of negotiating the terms and conditions of their employment or other 
mutual aid or protection'' will ``eliminate the causes of certain 
substantial obstructions to the free flow of commerce'' and ``mitigate 
and eliminate these obstructions when they have occurred.'' Id., 
Section 1, quoting 29 U.S.C. 151. As the Order concludes, ``[r]elying 
on contractors whose employees are informed of such rights under 
Federal labor laws facilitates the efficient and economical completion 
of the Federal Government's contracts.'' Id.

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    The Order achieves the goal of notification to employees of federal 
contractors of their legal rights through two related mechanisms. 
First, Section 2 of the Order provides the complete text of a contract 
clause that Government contracting departments and agencies must 
include in all covered Government contracts and subcontracts. 74 FR at 
6107-6108, Sec. 2. Second, through incorporation of the specified 
clause in its contracts with the Federal government, contractors 
thereby agree to post a notice in conspicuous places in their plants 
and offices informing employees of their rights under Federal labor 
laws. Id., Sec. 2, Para. 1.
    The Order states that the Secretary of Labor (``Secretary'') 
``shall be responsible for [its] administration and enforcement.'' 74 
FR at 6108, Sec. 3. To that end, the Order delegates to the Secretary 
the authority to ``adopt such rules and regulations and issue such 
orders as are necessary and appropriate to achieve the purposes of this 
order.'' Id., Sec. 3(a). In particular, the Order requires the 
Secretary to prescribe the content, size, and form of the employee 
notice. Id., Sec. 3(b). In addition, the Order permits the Secretary, 
among other things, to make modifications to the contractual provisions 
required to be included in Government contracts (Sec. 3(c)); to provide 
exemptions for contracting departments or agencies with respect to 
particular contracts or subcontracts or class of contracts or 
subcontracts for certain specified reasons (Sec. 4); to establish 
procedures for investigations of Government contractors and 
subcontractors to determine whether the required contract provisions 
have been violated (Sec. 5); to conduct hearings regarding compliance 
(Sec. 6); and to provide for certain remedies in the event that 
violations are found (Sec. 7). Id., 74 FR at 6108-6109. Accordingly, 
the Secretary proposes the following regulations to implement the 
policies and procedures set forth in the Executive Order. The specific 
standards and procedures proposed to implement the Executive Order will 
be discussed in detail in Section III., Overview of the Rule, below.

II. Authority

A. Legal Authority

    The President issued Executive Order 13496 pursuant to his 
authority under ``the Constitution and laws of the United States,'' 
expressly including the Federal Property and Administrative Services 
Act ``Procurement Act,'' 40 U.S.C. 101 et seq. The Procurement Act 
authorizes the President to ``prescribe policies and directives that 
[he] considers necessary to carry out'' the statutory purposes of 
ensuring ``economical and efficient'' government procurement and 
supply. 40 U.S.C. 101, 121(a). Executive Order 13496 delegates to the 
Secretary of Labor the authority to ``adopt such rules and regulations 
and issue such orders as are necessary and appropriate to achieve the 
purposes of this order.'' 74 FR at 6108, Sec. 3. The Secretary has 
delegated her authority to promulgate these regulations to the 
Assistant Secretary for Employment Standards. Secretary's Order 01-2008 
(May 30, 2008), 73 FR 32424 (published June 6, 2008).

B. Interagency Coordination

    Section 12 of the Executive Order requires the Federal Acquisition 
Regulatory Council (FAR Council) to take action to implement provisions 
of the Order in the Federal Acquisition Regulation (FAR). 74 FR at 
6110. Accordingly, the Department has coordinated with the FAR Council 
in inserting language implementing the Executive Order into the FAR.

III. Overview of the Rule

    The Department's proposed rule, which establishes standards and 
procedures for implementing and enforcing Executive Order 13496, is set 
forth in subchapter D, Part 471 of Volume 29 of the Code of Federal 
Regulations (CFR). Subpart A of the proposed rule sets out definitions, 
the prescribed requirements for the size, form and content of the 
employee notice, exceptions for certain types of contracts, and 
exemptions that may be applicable to contracting departments and 
agencies with respect to a particular contract or subcontract or class 
of contracts or subcontracts. Subpart B of the proposed rule sets out 
standards and procedures related to complaint procedures, compliance 
evaluations, and enforcement of the rule. Subpart C sets out other 
standards and procedures related to certain ancillary matters. The 
discussion below is organized in the same manner, and explains the 
Department's adoption of the standards and procedures set out in the 
regulatory text, which follows. The Department invites comments on any 
issues addressed by the proposals in this rulemaking.

Subpart A--Definitions, Requirements for Employee Notice, and 
Exceptions and Exemptions

    Subpart A contains definitions of terms used in the rule, 
requirements for the content, size and form of the notice that a 
contractor must post to its employees, the types of contracts that are 
excepted from the rule and applicable exemptions available to a 
contracting department or agency with respect to a particular contract 
or subcontract or class of contracts or subcontracts.

Definitions

    The definitions proposed in this rule are derived largely from the 
definitions of the same terms in the Department's Office of Federal 
Contract Compliance Programs (OFCCP) regulations at 41 CFR part 60-1.3 
and the former regulations implementing Executive Order 13201, 29 CFR 
Part 470 (2008), rescinded under authority of E.O. 13496, 74 FR 14045 
(March 30, 2009). Slight variations between the definitions proposed 
here and those upon which they were modeled were made in order to 
accommodate the terms to Executive Order 13946. The Department invites 
comments regarding the definitions proposed in Section 471.1 below.

Requirements for Employee Notice

    As noted above, Executive Order 13496 requires the Secretary to 
``prescribe the size, form and content of the notice'' that contractors 
must post to notify employees of their rights. Sec. 3(b), E.O. 13496, 
74 FR at 6108. The proposed rule fulfills the Secretary's obligation to 
establish standards and procedures regarding each of these issues, 
which are discussed in turn below.
    Section 471.2(a) of the proposed rule sets out in full the four 
paragraphs that the Executive Order requires to be included in all non-
excepted Government contracts. The first paragraph of the proposed 
contract clause specifies the content of the notice that must be 
provided to employees of Federal contractors. The proposed notice 
contains those employee rights established under the National Labor 
Relations Act (``NLRA''), 29 U.S.C. 151, et seq. The Secretary believes 
providing notice of the rights under the NLRA bests effectuates the 
purpose of the Executive Order. Section 1 of the Executive Order 
clearly states that the Order's policy is to attain industrial peace 
and enhance worker productivity through the notification of workers of 
``their rights under Federal labor laws, including the National Labor 
Relations Act.'' 74 FR at 6107, Sec. 1. The policy of the Executive 
Order goes on to emphasize the foundation underlying the NLRA, which is 
to encourage collective bargaining and to protect workers' rights to 
freedom of association and self-organization, and notes that

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efficiency and economy in government contracting is promoted when 
contractors inform their employees of ``such rights.'' Further, the 
contract clause prescribed by the Order requires Federal contractors to 
post the notice ``in conspicuous places in and about plants and offices 
where employees covered by the National Labor Relations Act engage in 
activities related to performance of the contract * * *.'' 74 FR at 
6107, Sec. 2, Para. 1 (emphasis added). As a result, the Executive 
Order's terms provide that the employee notice it requires must be 
posted only by employers in the private sector, with some statutory 
exceptions, and need not be posted by employers in the public 
sector.\1\
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    \1\ Under the NLRA, the term ``employer'' excludes the United 
States government, any wholly owned government corporation, or any 
State or political subdivision. 29 U.S.C. 152(2). As a result, 
employees of these public-sector employers are not ``employees'' 
covered by the NLRA. The NLRA's definition of ``employee'' also 
excludes those employed as agricultural laborers, in the domestic 
service of any person or family in a home, by a parent or spouse, as 
an independent contractor, as a supervisor, or by an employer 
subject to the Railway Labor Act, such as railroads and airlines. 29 
U.S.C. 152(3).
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    In establishing a description of rights under the NLRA in the 
proposed notice, the Department believes that such rights are best 
presented to employees following a concise preamble that provides 
context to such rights. Therefore, section 471.2 of the proposed rule 
sets out the following text for inclusion in the notice to employees 
prior to the description of employee rights under the NLRA:

    It is the policy of the United States to encourage collective 
bargaining and protect the exercise by workers of full freedom of 
association, self-organization, and designation of representatives 
of their own choosing, for the purpose of negotiating the terms and 
conditions of their employment or other mutual aid and protection.

    The content of the above notice derives from section 1 of the NLRA, 
29 U.S.C. 151, and E.O. 13496, Section 1. The Department seeks comments 
on this description of policy in the proposed section 471.2.
    In proposing to include the statutory rights under the NLRA in the 
required notice, the Secretary considered the level of detail the 
notice should contain regarding those statutory rights. A broad 
statement of employee rights under the NLRA appears in section 7 of the 
Act, which states:

    Employees shall have the right to self-organization, to form, 
join, or assist labor organizations, to bargain collectively through 
representatives of their own choosing, and to engage in other 
concerted activities for the purpose of collective bargaining or 
other mutual aid or protection, and shall also have the right to 
refrain from any or all such activities * * *.

    29 U.S.C. 157. The Department considered requiring a verbatim 
replication of the statute's enumeration of employee rights in Section 
7 of the NLRA. Alternatively, the Department considered including a 
simplified list of rights based upon the statutory provision, which 
would include the right of employees to: Organize; form, join, or 
assist any union; bargain collectively through representatives of their 
own choice; act together for other mutual aid or protection; or choose 
not to engage in any of these protected concerted activities.
    However, the Department does not believe that posting the statutory 
language itself or a simplified list of rights in a notice will be 
likely to convey the information necessary to best inform employees of 
their rights under the Act. Instead, the Department proposes that the 
statement of employee rights contained in Appendix A to Subpart A of 
Part 471 be required for inclusion in the notice. This statement 
contains greater detail of NLRA rights, derived from Board or court 
decisions implementing such rights--which will more effectively convey 
such rights to employees. A more complete and readable text will also 
better enable employees to apply the rights to actual workplace 
situations. Additionally, employees will be better apprised of their 
rights under the NLRA if the notice also contains examples of general 
circumstances, also derived from Board or court decisions further 
implementing section 7 and other provisions of the NLRA, that 
constitute violations of their rights under the Act. With the above 
principles in mind, the Department devised a notice that provides 
employees with a more than rudimentary overview of their rights under 
the NLRA, in a user-friendly format, while simultaneously not 
overwhelming employees with information that is unnecessary and 
distracting in the limited format of a notice.
    The Department invites comment on this statement of employee rights 
proposed for inclusion on the required notice to employees. In 
particular, the Department requests comment on whether the notice 
contains sufficient information of employee rights under the Act; 
whether the notice effectively conveys the information necessary to 
best inform employees of their rights under the Act; and whether the 
notice achieves the desired balance between providing an overview of 
employee rights under the Act and limiting unnecessary and distracting 
information.
    Moreover, proposed Sec.  471.2 also requires that the notice of 
employee rights contain NLRB contact information and basic enforcement 
procedures to enable employees to find out more about their rights 
under the Act and to proceed with enforcement if necessary. 
Accordingly, the required notice confirms that illegal conduct will not 
be permitted, provides information regarding the NLRB and filing a 
charge with that agency, and indicates that the Board will prosecute 
violators of the Act. Furthermore, the notice indicates that there is a 
6-month statute of limitations applicable to making allegations of 
violations and provides NLRB contact information for use by employees. 
The Department invites suggested additions or deletions to these 
procedural provisions that would improve the content of the notice of 
employee rights.
    Paragraph 4 of the contract clause in the Executive Order requires 
the contractor to incorporate only paragraphs 1 through 3 of the clause 
in its subcontracts. See 74 FR at 6108, Sec. 2, para. 4. A narrow 
reading of the operation of this provision outside the full context of 
the Executive Order might suggest that the obligation to include the 
contract clause is limited to contracts between the government agency 
and the prime contractor. Under this reading, subcontractors would be 
required only to post the notice of employee rights, and their 
subcontractors (sometimes called second tier contractors) would have no 
responsibilities under the Executive Order. However, the provisions of 
the Executive Order establishing exemptions and exceptions for the 
application of the Executive Order's obligations do not expressly 
specify that its obligations do not flow past the first tier 
subcontractor, a significant limitation that one would expect to be 
made explicitly in the text of the Executive Order rather than by 
operation of the contract clause's incorporation provision. In 
addition, in the Department's past regulatory treatment of a similar 
issue, it has adapted through regulation the application of an 
Executive Order's contract inclusion provisions so that the obligation 
to abide by the mandates of the orders flows to subcontractors below 
the first tier. See, e.g., 69 FR 16376, 16378 (Mar. 29, 2004) (final 
rule implementing E.O. 13201) (based on identical contract 
incorporation provision, ``the intent of the Order was clearly that the 
clause be passed to

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subcontractors below the first tier''); 57 FR 49588, 49591 (Nov. 2, 
1992) (final rule implementing E.O. 12800) (``It is clear, however, 
that the intent of Executive Order 12800 was that the clause flow down 
below the first tier level''). The Department's experience with 
regulatory implementation of all these Executive Orders is that 
requiring the obligations of the Executive Order to flow past the first 
tier subcontractor best achieves the purposes of the Executive Orders. 
For these reasons, the Department has concluded that in order to fully 
implement the intent of E.O. 13496, Sec. 471.2(a) has been adapted to 
require the inclusion of paragraphs 1 through 4 of the contract clause. 
The Department seeks comments on this proposal.
    Proposed Sec.  471.2(b) provides that the employee notice clause is 
to be set out verbatim in a contract, subcontract or purchase order, 
rather than being incorporated by reference in those documents. 
Proposed Sec.  471.2(c) implements Section 3(c) of the Executive Order, 
74 FR 6108, permitting the Secretary to modify the contract clause 
under certain specified circumstances as needed from time to time. The 
Department requests comment regarding the utility of setting out the 
employee notice clause verbatim, as opposed to incorporation by 
reference, to ensure that contractors will be aware of their 
contractual obligation to post the required notice.
    The contract clause in the Executive Order requires a contractor to 
post the employee notice conspicuously ``in and about its plants and 
offices * * * including in all places where notices to employees are 
customarily posted both physically and electronically.'' 74 FR 6107, 
Sec. 2, para. 2. As a result, a contractor is required to post the 
notice physically at its place of operation where employees are likely 
to see it. Proposed Sec.  471.2(d) provides that the Department will 
print the required employee notice poster and supply it to Federal 
contractors through the Federal contracting agency. In addition, the 
poster may be obtained from OLMS, whose contact information is provided 
in this subsection of the proposed rule, or can be downloaded from 
OLMS's Web site, https://www.olms.dol.gov. The Secretary has concluded 
that the Department's printing of the poster and provision of it to 
Federal contractors will reduce the burden on those contractors to 
comply with the Executive Order and this regulation, and will ensure 
conformity and consistency with the Secretary's specifications for the 
notice. Proposed Sec.  471.2(d) also permits contractors to reproduce 
in exact duplicate the poster supplied by the Department to satisfy 
their obligations under the Executive Order and this rule. The 
Department invites comment on its proposal to make available print and 
electronic format posters containing the employee notice.
    Those contractors that customarily post notices to employees 
electronically must also post the required notice electronically. In 
Sec.  471.2(e), the Department proposes that such contractors may 
satisfy the electronic posting requirement on any web site that is 
maintained by the contractor or subcontractor and customarily used for 
employee notices, whether external or internal. A contractor must 
display prominently on its Web page or electronic site where other 
employee notices are customarily placed a link to the DOL's web page 
that contains the full text of the employee notice. The contractor must 
also place the link in the prescribed text contained in Sec.  471.2(e). 
The prescribed text is the introductory language of the notice. The 
Department seeks comments on this proposal for electronic compliance. 
In addition, the Department seeks comment on whether it should 
prescribe standards regarding the size, clarity, location, and 
brightness with regard to the link, including how to prescribe 
electronic postings that are at least as large, clear and conspicuous 
as the contractor's other posters.

Exceptions for Specific Types of Contracts and Exemptions Available to 
Contracting Departments or Agencies With Respect to Particular 
Contractors or Subcontracts

    The Executive Order expressly excepts from its application two 
types of Government contracts: Collective bargaining agreements as 
defined in 5 U.S.C. 7103(a)(8) and contracts involving purchases below 
the simplified acquisition threshold as defined in the Office of 
Federal Procurement Policy Act, 41 U.S.C. 403; 74 FR at 6107, Sec. 2. 
The simplified acquisition threshold is currently set at $100,000. 41 
U.S.C. 403. Section 471.3(a)(1) and (2) of the proposed rule implement 
these exceptions. In addition, the Executive Order's provision 
regarding its effective date excepts contracts resulting from 
solicitations issued prior to the effective date of the final rule 
promulgated pursuant to this rulemaking. 74 FR 6111, Sec. 16. Proposed 
Sec.  471.3(a)(3) implements this provision of the Executive Order.
    As proposed in Sec.  471.2(a), all nonexempt prime contractors and 
subcontractors are required to include the employee notice contract 
clause in each of their nonexempt subcontracts so that the obligation 
to notify employees of their rights flows to subcontractors of a 
government contract as well. The Executive Order does not except from 
its coverage subcontracts involving purchases below the simplified 
acquisition threshold. The Department has defined ``subcontract'' in 
the definitional section of the rule to include only those subcontracts 
that are necessary to the performance of the government contract. See 
Sec.  471.1(r); see also OFCCP v. Monongahela R.R., 85-OFC-2, 1986 WL 
802025 (Recommended Decision and Order, April 2, 1986), aff'd, (Deputy 
Under Secretary's Final Decision and Order, Mar. 11, 1987) (railroad 
transporting coal to power generation plant of energy company 
contracting with GSA was subcontractor because delivery of coal is 
necessary to for the power company to perform under its contract with 
GSA). Although this rule may result in coverage of subcontracts with 
relatively de minimis value in the overall scheme of government 
contracts, covered subcontractors include only those who are performing 
subcontracts that are necessary to the performance of the prime 
contract. The Department invites comment on whether a further 
limitation on the application of the rule to subcontracts is necessary, 
and if it is, whether such a limitation is best accomplished through 
the application of this or another standard, for instance, a threshold 
related to the monetary value of the subcontract.
    In addition to the exceptions for certain contracts, the Executive 
Order establishes two exemptions that the Secretary, in her discretion, 
may provide to contracting departments or agencies that the Secretary 
finds appropriate for exemption. 74 FR 6108, Sec. 4. These provisions 
permit the Secretary to exempt a contracting department or agency or 
group of departments or agencies from the requirements of any or all of 
the provisions of the Order with respect to a particular contract or 
subcontract or any class of contracts or subcontracts if she finds 
either that the application of any of the requirements of the Order 
would not serve its purposes or would impair the ability of the 
government to procure goods or services on an economical and efficient 
basis, or that special circumstances require an exemption in order to 
serve the national interest. Id. Proposed Sec.  471.3(b) implements 
these exemptions. Proposed Sec.  471.3(b) provides for the submission 
of written requests for exemptions to the

[[Page 38492]]

Deputy Assistant Secretary for Labor-Management Programs, and further 
provides that the Deputy Assistant Secretary may withdraw an exemption 
if a determination is made that such action is necessary or appropriate 
to achieve the purposes of the rule. The Department invites comments on 
the standards and procedures for requesting an exemption and the 
Department's withdrawal of a granted exemption.
    Finally, proposed Sec.  471.4 implements the policy noted above 
that the Executive Order requires notice-posting in those workplaces in 
which employees covered by the NLRA perform their work under the 
Federal contract. Thus, this rule does not apply to employers excluded 
from the definition of ``employer'' in the NLRA, 29 U.S.C. 152(2), and 
employers of employees excluded from the definition of ``employee'' 
under the NLRA, 29 U.S.C. 152(3). As a result, Federal, State and local 
public-sector employers are not covered by this rule. 29 U.S.C. 152(2). 
Also excluded are employers of workers employed: as agricultural 
laborers; in the domestic service of any person or family in a home; by 
a parent or spouse; as an independent contractor; as a supervisor; or 
by an employer subject to the Railway Labor Act, such as railroads and 
airlines. 29 U.S.C. 152(3).

Subpart B--General Enforcement; Compliance Review and Complaint 
Procedures

    Subpart B of the proposed rule establishes standards and procedures 
the Department will use to determine compliance with obligations of the 
rule, take complaints regarding noncompliance, address findings of 
violations, provide hearings for certain matters, impose sanctions, 
including debarment, and provide for reinstatement in the case of 
debarment. The standards and procedures proposed in this subpart are 
taken largely from the Department's prior rule administering and 
enforcing Executive Order 13201, 66 FR 11221 (February 22, 2001). See 
29 CFR Part 470 (2008), rescinded under authority of E.O. 13496, 74 FR 
14045 (March 30, 2009). The Department invites comment on the 
administrative and enforcement procedures proposed in Subpart B.
    The Department's Office of Federal Contract Compliance Programs 
(``OFCCP'') administers and enforces several laws that ban 
discrimination and require Federal contractors and subcontractors to 
take affirmative action to ensure that all individuals have an equal 
opportunity for employment. Therefore, OFCCP already has responsibility 
for monitoring, evaluating and ensuring that contractors doing business 
with the Federal government conduct themselves in a manner that 
complies with certain Federal laws. Proposed Sec.  471.10 builds on 
this practice and expertise, and establishes authority in the Deputy 
Assistant Secretary for Federal Contract Compliance to conduct 
evaluations to determine whether a contractor is in compliance with the 
requirements of this rule. Under proposed Sec.  471.10(a), such 
evaluations may be done solely for the purpose of assessing compliance 
with this rule, or may be undertaken in conjunction with an assessment 
of a Federal contractors' compliance with other laws under OFCCP's 
jurisdiction. This proposed section also establishes standards 
regarding location of the posted notice that will be used by OFCCP to 
assess compliance and indicates that an evaluation record will reflect 
efforts made toward conciliation, corrective action and/or 
recommendations regarding enforcement actions.
    Proposed Sec.  471.11 provides for the Department's acceptance of 
written complaints alleging that a contractor doing business with the 
Federal government has failed to post the notice required by this rule. 
The proposed section establishes that no special complaint form is 
required, but that complaints must be in writing. In addition, as 
proposed in Sec.  471.11, written complaints must contain certain 
information, including the name, address and telephone number of the 
person submitting the complaint, and the name and address of the 
Federal contractor alleged to have violated this rule. This proposed 
section establishes that written complaints may be submitted either to 
OFCCP or OLMS, and the contact information for each agency is contained 
in this subsection. Finally, proposed Sec.  471.11 establishes that 
OFCCP will conduct investigations of complaints submitted under this 
section, make compliance findings based on such investigations, and 
include in the investigation record any efforts made toward 
conciliation, corrective action, and recommended enforcement action,
    Proposed Sec.  471.12 sets out the initial steps that the 
Department will take in the event that a contractor is found to be in 
violation of this rule, including making reasonable efforts to secure 
compliance through conciliation. Under this proposed section, a 
noncompliant contractor must take action to correct the violation and 
commit in writing to maintain compliance in the future. If the 
contractor fails to come into compliance, OLMS may proceed with 
enforcement efforts proposed in Sec.  471.13.
    Proposed Sec.  471.13 implements Section 6 of the Executive Order, 
74 FR 6108-6109, and establishes steps that the Department will take in 
the event that conciliation efforts fail to bring a contractor into 
compliance with this rule. Under this proposed section, enforcement 
proceedings may be initiated if violations are found as a result of 
either a compliance evaluation or a complaint investigation, or in 
those cases in which a contractor refuses to allow a compliance 
evaluation or complaint investigation or refuses to cooperate with the 
compliance evaluation or complaint investigation, including failing to 
provide information sought during those procedures. The enforcement 
procedures proposed in Sec.  471.13 rely primarily on the Department's 
regulations at 29 CFR part 18, which govern administrative hearings 
before Administrative Law Judges (ALJ), and, in particular, on the 
provisions for expedited hearings at 29 CFR 18.42. The procedures in 
this proposed section establish that an ALJ will make recommended 
findings and conclusions regarding any alleged violation to the 
Assistant Secretary for Employment Standards (``Assistant Secretary''), 
who will issue a final administrative order. The final administrative 
order may include a cease-and-desist order or other appropriate 
remedies in the event that a violation is found. The procedures in this 
proposed section also establish timetables for submitting exceptions to 
the ALJ's recommended order to the Assistant Secretary, and also 
provide for the use of expedited proceedings.
    Proposed Sec.  471.14 addresses the imposition of sanctions and 
penalties in cases in which violations are found, and establishes post-
hearing procedures related to such sanctions or penalties. Section 7 of 
the Executive Order provides the framework for the scope and nature of 
remedies the Department may order in the event of a violation. 74 FR 
6109. Section 7(a) of the Executive Order provides that the Secretary 
may issue a directive that the contracting department or agency cancel, 
terminate, suspend, or cause to be cancelled, terminated or suspended 
any contract or portion of a contract for noncompliance. Id. In 
addition, the Executive Order indicates that contracts may be 
cancelled, terminated or suspended absolutely, or their continuance may 
be conditioned on a requirement for future compliance. Id. Prior to 
issuing such a directive, the Secretary must offer the head of the 
contracting department or

[[Page 38493]]

agency an opportunity to object in writing to the remedy contemplated, 
and the objections must contain reasons why the contract is essential 
to the agency's mission. Id. Finally, Section 7 of the Executive Order 
prevents the imposition of such a remedy if the head of the contracting 
department or agency, or his or her designee, continues to object to 
the issuance of the directive. Id. Proposed Sec.  471.14(a), (b), (c), 
and (d)(1) fully implement the standards and procedures established in 
Section 7(a) of the Executive Order.
    Section 7(b) of the Executive Order provides that the Secretary may 
issue an order debarring noncompliant contractors ``until such 
contractor has satisfied the Secretary that such contractor has 
complied with and will carry out the provisions of the order.'' 74 FR 
6109. As with the remedies discussed above, prior to the imposition of 
debarment, the Secretary must offer the head of the contracting 
department or agency an opportunity to object in writing to debarment, 
and the objections must contain reasons why the contract is essential 
to the agency's mission. Id. Finally, Section 7(b) of the Executive 
Order prevents the imposition of debarment if the head of the 
contracting department or agency, or his or her designee, continues to 
object to it. Id. Proposed Sec.  471.14(d)(3) of the rule establishes 
the availability of the debarment remedy. Section 471.14(f) of the 
proposed rule indicates that the Assistant Secretary will periodically 
publish and distribute the names of contractors or subcontractors that 
have been debarred for noncompliance.
    Proposed Sec.  471.15 permits a contractor or subcontractor to seek 
a hearing before the Assistant Secretary before the imposition of any 
of the remedies outlined above. Finally, proposed Sec.  471.16 provides 
contractors or subcontractors that have been debarred under this rule 
an opportunity to seek reinstatement by requesting such in a letter to 
the Assistant Secretary. Under this proposed provision, the Assistant 
Secretary may reinstate the debarred contractor or subcontractor if he 
or she finds that the contractor or subcontractor has come into 
compliance with this rule and has shown that it will fully comply in 
the future.
    As noted above, Sec.  471.2(a) requires all nonexempt prime 
contractors and subcontractors to include the employee notice contract 
clause in each of its nonexempt subcontracts so that the obligation to 
notify employees of their rights is binding upon each successive 
subcontractor. Regarding enforcement of the requirements of the rule as 
to subcontractors, the Executive Order requires the contractor to 
``take such action with respect to any such subcontract as may be 
directed by the Secretary of Labor as a means of enforcing such 
provisions, including sanctions for noncompliance.'' 74 FR 6108, Sec. 
2, para. 4. Accordingly, in the event that the Department determines 
that a subcontractor is out of compliance with the requirements of this 
rule regarding employee notice or inclusion of the contract clause in 
the subcontractor's own subcontracts, the Secretary may direct the 
contractor to require the noncompliant subcontractor to come into 
compliance. As indicated in the Executive Order, if such a directive 
causes the contractor to become involved in litigation with the 
subcontractor, the contractor may request the United States to enter 
the litigation in order to protect the interests of the United States. 
74 FR 6108, Sec. 2, para. 4. If the contractor is unable to compel 
subcontractor compliance on its own accord, the compliance review, 
complaint, investigation, conciliation, hearing and decision procedures 
established in Sections 471.10 through 471.16 to assess and resolve 
contractor compliance with the requirements of this rule are also 
applicable to subcontractors. In those instances in which a contractor 
fails to take the action directed by the Secretary regarding a 
subcontractor's noncompliance, the contractor may be subject to the 
same enforcement and remedial procedures that apply when it is 
determined to be out of compliance regarding the requirements to 
provide employee notice or include the contract clause in its 
contracts. See Sec.  471.13(a)(1).

Subpart C--Ancillary Matters

    A number of discrete issues unconnected to the issues addressed in 
the two previous subparts merit attention in this proposed rule, and 
they are set out in this subpart. Consequently, this Subpart addresses 
delegations of authority within and outside the Department to 
administer and enforce this proposed rule, rulings under or 
interpretations of the Executive Order, standards prohibiting 
intimidation, threats, coercion or other interference with rights 
protected under this rule, and other provisions of the Executive Order 
that are included in this proposed rule. The Department invites comment 
on any issues addressed in this subpart.
    Proposed Sec.  471.20 implements Section 11 of the Executive Order, 
74 FR 6110, which permits the delegation of the Secretary's authority 
under the Order to Federal agencies within or outside the Department. 
Section 471.21 of the proposed rule indicates that the Assistant 
Secretary has authority to make rulings under or interpretations of 
this rule. Proposed Sec.  471.22 seeks to prevent intimidation or 
interference with rights protected under this rule, so it proposes that 
the sanctions and penalties available for noncompliance set out in 
Sec.  471.14 be available should a contractor or subcontractor fail to 
take all steps necessary to prevent such intimidation or interference. 
Activities protected by this proposed section include filing a 
complaint, furnishing information, or assisting or participating in any 
manner in a compliance evaluation, a complaint investigation, hearing 
or any other activity related to the administration and enforcement of 
this rule. Finally, proposed Sec.  471.23 implements Section 9 of the 
Executive Order, 74 FR 6109, which requires that contracting 
departments and agencies cooperate with the Secretary in carrying out 
her functions under the Order, and implements Section 15 of the 
Executive Order, 74 FR 6110, which establishes general guidelines for 
the Order's implementation.

IV. Regulatory Procedures

Executive Order 12866

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. 58 FR 
51735, 51735-51736. The Department has determined that this rule is not 
an ``economically significant'' regulatory action under section 3(f)(1) 
of Executive Order 12866. 58 FR 51738. Based on the Department's 
analysis, including a cost impact analysis set forth more fully below 
with regard to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
this rule is not likely to: (1) Have an annual effect on the economy of 
$100 million or more or adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof, or (4) raise novel legal or policy issues. 58 FR 51738. As a 
result, the Department has concluded that a full economic impact and 
cost/benefit analysis is not required for the rule under section 
6(a)(3)(B) of the Executive Order. 58 FR 51741. However, because of its 
importance to the public,

[[Page 38494]]

the rule was reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., 
requires agencies promulgating proposed rules to prepare an initial 
regulatory flexibility analysis and to develop alternatives wherever 
possible, when drafting regulations that will have a significant impact 
on a substantial number of small entities. The focus of the RFA is to 
ensure that agencies ``review rules to assess and take appropriate 
account of the potential impact on small businesses, small governmental 
jurisdictions, and small organizations, as provided by the [RFA].'' 
Executive Order 13272, Sec. 1, 67 FR 53461 (``Proper Consideration of 
Small Entities in Agency Rulemaking''). However, an agency is relieved 
of the obligation to prepare an initial regulatory flexibility for a 
proposed rule if the Agency head certifies that the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. 5 U.S.C 605. Based on the analysis below, in which 
the Department has estimated the financial burdens to covered small 
contractors and subcontractors associated with complying with the 
requirements contained in this proposed rule, the Department has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this rule will not have a significant 
economic impact on a substantial number of small entities.
    The primary goal of the Executive Order and these implementing 
regulations is the notification to employees of their rights with 
respect to collective bargaining and other protected, concerted 
activity. This goal is achieved through the incorporation of a contract 
clause in all covered Government contracts. The Executive Order and 
this rule impose the obligation to ensure that the contract clause is 
included in all Government contracts not on private contractors, but on 
Government contracting departments and agencies, which are not ``small 
entities'' that come within the focus of the RFA. Therefore, the costs 
attendant to learning of the obligation to include the contract clause 
in Government contracts and modifying those contracts in order to 
comply with that obligation is a cost borne by the Federal government, 
and is not incorporated into this analysis.
    Once the required contract clause is included in the Government 
contract, contractors then begin to assume the burdens associated with 
compliance. Those obligations include posting the required notice and 
incorporating the contract clause into all covered subcontracts, thus 
making the same obligations binding on covered subcontractors. For the 
purposes of this analysis, the Department estimates that, on average, 
each prime contractor will subcontract some portion of its prime 
contract three times, and the prime contractor therefore will expend 
time ensuring that the contract clause is included in its subcontracts 
and notifying those subcontractors of their attendant obligations. To 
the extent that subcontractors subcontract any part of their contract 
with the prime contractor, they, in turn, will be required to expend 
time ensuring that the contract clause is included in the next tier of 
subcontracts and notifying the next-tier subcontractors of their 
attendant obligations. Therefore, for the purpose of determining time 
spent on compliance, the Department will not differentiate between the 
obligations of prime contractors and subsequent tiers of subcontractors 
in assessing time spent on compliance; the Department assumes that all 
contractors, whether prime contractor or subcontractor, will spend 
equivalent amounts of time engaging in compliance activity.
    The Department estimates that each contractor will spend a total of 
3.5 hours per year in order to comply with this rule, which includes 90 
minutes for the contractor to learn about the contract and notice 
requirements, train staff, and maintain records; 30 minutes for 
contractors to incorporate the contract clause into each subcontract 
and explain its contents to subcontractors; 30 minutes acquiring the 
notice from a government agency or Web site; and 60 minutes posting 
them physically and electronically, depending on where and how the 
contractor customarily posts notices to employees. The Department 
assumes that these activities will be performed by a professional or 
business worker, who, according to Bureau of Labor statistics data, 
earned a total hourly wage of $31.02 in January, 2009, including 
accounting for fringe benefits. The Department then multiplied this 
figure by 3.5 hours to estimate the average annual costs for 
contractors and subcontractors to comply with this rule. Accordingly, 
this proposed rule is estimated to impose average annual costs of 
$108.57 per contractor (3.5 hours x $31.02). These costs will decrease 
in subsequent years based on a contractor's increasing familiarity with 
the rule's requirements and having already satisfied its posting 
requirements in earlier years.
    Based upon figures obtained from USASpending.gov, which compiles 
information on federal spending and contractors across government 
agencies, the Department concludes that there were 186,536 unique 
Federal contractors holding Federal contracts in FY 2008.\2\ Although 
this rule does not apply to Federal contracts below the simplified 
acquisition threshold, the Department does not have a means by which to 
calculate what portion of all Federal contractors hold only contracts 
with the government below the simplified acquisition threshold to which 
the rule would not apply in any respect. Therefore, in order to 
determine the number of entities affected by this rule, the Department 
used all Federal contractors as a basis, regardless of the size of the 
government contract held. Based on data analyzed in the Federal 
Procurement Data System (fpds.gov), which compiles data about types of 
contractors, of all 186,536 unique Federal prime contractors, 
approximately 35% are ``small entities'' as defined by the Small 
Business Administration (SBA) size standards.\3\

[[Page 38495]]

Therefore, for the purposes of the RFA analysis, the Department 
estimates that this rule will affect 65,288 small Federal prime 
contractors.
---------------------------------------------------------------------------

    \2\ The Federal Funding Accountability and Transparency Act of 
2006, Pub.L. 109-282, (Sept. 26, 2006), requires that the Office of 
Management and Budget establish a single searchable Web site, 
accessible by the public for free, that includes for each Federal 
award, among other things: (1) The name of the entity receiving the 
award; (2) the amount of the award; (3) information on the award 
including transaction type, funding agency, etc.; (4) the location 
of the entity receiving the award; and (5) a unique identifier of 
the entity receiving the award. See 31 U.S.C.A. Sec.  6101 note. In 
compliance with this requirement, USASpending.gov was established.
    \3\ The Federal Procurement Data System compiles data regarding 
small business ``actions'' and small business ``dollars'' using the 
criteria employed by SBA to define ``small entities.'' In FY 2008, 
small business actions accounted for 50% of all Federal procurement 
action. However, deriving a percentage of contractors that are small 
using the ``action'' data would overstate the number of small 
contractors because contract actions reflect more than just 
contracts; they include modifications, blanket purchase agreement 
calls, task orders, and federal supply schedule orders. As a result, 
there are many more contract actions than there are contracts or 
contractors. Accordingly, a single small contractor might have 
hundreds of actions, e.g., delivery or task orders, placed against 
its contract. These contract actions would be counted individually 
in the FPDS, but represent only one small business.
     Also reflected in FPDS, in FY 2008, small business ``dollars'' 
accounted for 19% of all Federal dollars spent. However, deriving a 
percentage of contractors that are small using the ``dollars'' data 
would understate the number of small contractors. Major acquisitions 
account for a disproportionate share of the dollar amounts and are 
almost exclusively awarded to large businesses. For instance, 
Lockheed Martin was awarded $34 billion in contracts in FY 2008, 
which accounted for 6% of all Federal spending in that year. The top 
five federal contractors, all large businesses, accounted for over 
20% of contract dollars in FY 2008. As a result, because the largest 
Federal contractors disproportionately represent ``dollars'' spent 
by the Federal government, the FPDB's data on small ``dollars'' 
spent understates the number of small entities with which the 
Federal government does business.
     The Department concludes that the percentage of all Federal 
contractors that are ``small'' is probably somewhere between 19% and 
50%, the two percentages derived from the FPDS figures on small 
``actions'' and small ``dollars.'' The mean of these two percentages 
is approximately 35%, and the Department will use this figure above 
to estimate how many of all Federal contractors are ``small 
entities'' in SBA's terms.
---------------------------------------------------------------------------

    As noted above, for the purposes of this analysis, the Department 
estimates that each prime contractor subcontracts a portion of the 
prime contract three times, on average. However, the community of prime 
contractors does not utilize a unique subcontractor for each 
subcontract; the Department assumes that subcontractors may be working 
under several prime contracts for either a single prime contractor or 
multiple prime contractors, or both. In addition, some subcontractors 
may also be holding prime contracts with the government, so they may 
already be counted as affected entities. Therefore, in order to 
determine the unique number of subcontractors affected by this rule, 
the Department estimates there are the same number of unique 
subcontractors as prime contractors, resulting in the estimate that 
186,536 subcontractors are affected by this rule. Further, for the 
purposes of this analysis, the Department assumes that all 
subcontractors are ``small entities'' as defined by SBA size standards. 
Therefore, in order to estimate the total number of ``small'' 
contractors affected by this rule, the Department has added together 
the estimates for the number of small prime contractors calculated 
above (65,288) with the estimate of all subcontractors (186,536), all 
of which we assume are small. Accordingly, the Department estimates 
that 251,824 small prime and subcontractors are affected by this rule.
    Based on this analysis, the Department concludes that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. The Regulatory Flexibility Act does not 
define either ``significant economic impact'' or ``substantial'' as it 
relates to the number of regulated entities. 5 U.S.C. 601. In the 
absence of specific definitions, ``what is `significant' or 
`substantial' will vary depending on the problem that needs to be 
addressed, the rule's requirements, and the preliminary assessment of 
the rule's impact.'' See A Guide for Government Agencies: How to Comply 
with the Regulatory Flexibility Act, Office of Advocacy, U.S. Small 
Business Administration at 17, available at https://www.sba.gov. As to 
economic impact, one important indicator is the cost of compliance in 
relation to revenue of the entity or the percentage of profits 
affected. Id. In this case, the Department has determined that the 
average cost of compliance with this rule in the first year for all 
Federal contractors and subcontractors will be $108.57. The Department 
concludes that this economic impact is not significant. Furthermore, 
the Department has determined that of the entire regulated community of 
all 186,536 prime contractors and all 186,536 subcontractors, 67% 
percent of that regulated community constitute small entities (251,824 
small contractors divided by all 373,072 contractors). Although this 
figure represents a substantial number of federal contractors and 
subcontractors, because Federal contractors are derived from virtually 
all segments of the economy and across industries, this figure is a 
small portion of the national economy overall. Id. at 20 (``the 
substantiality of the number of businesses affected should be 
determined on an industry-specific basis and/or the number of small 
businesses overall''). Accordingly, the Department concludes that the 
rule does not impact a substantial number of small entities in a 
particular industry or segment of the economy. Therefore, under 5 
U.S.C. 605, the Department concludes that the proposed rule will not 
have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform

    For purposes of the Unfunded Mandates Reform Act of 1995, this 
proposed rule would not include any Federal mandate that might result 
in increased expenditures by State, local, and tribal governments, or 
increased expenditures by the private sector of more than $100 million 
in any one year.

Paperwork Reduction Act

    Certain sections of this proposed rule, including Sec.  471.11(a) 
and (b), contain information collection requirements for purposes of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA). As 
required by the PRA, the Department has submitted a copy of these 
sections to OMB for its review.
    The proposed rule requires contractors to post notices and 
cooperate with any investigation into a failure to comply with the 
requirements of part 471 as the result of a complaint or a compliance 
evaluation. It also permits employees to file complaints with the 
Department alleging that a contractor has failed to comply with those 
requirements. The application of the PRA to those requirements is 
discussed below.
    The proposed rule imposes certain minimal burdens associated with 
the posting of the employee notice poster required by the Executive 
Order and Sec.  471.2(a). As noted in Sec.  471.2(e), the Department 
will supply the notice, and contractors will be permitted to post exact 
duplicate copies of the notice. Under the regulations implementing the 
PRA, ``[t]he public disclosure of information originally supplied by 
the Federal government to [a] recipient for the purpose of disclosure 
to the public'' is not considered a ``collection of information'' under 
the Act. See 5 CFR 1320.3(c)(2). Therefore, the posting requirement is 
not subject to the PRA.
    The proposed rule would also impose certain burdens on the 
contractor associated with cooperating with an investigation into 
failure to comply with the requirements of part 471 as the result of a 
complaint or in connection with a compliance evaluation. The 
regulations implementing the PRA exempt any information collection 
requirements imposed by an administrative agency during the conduct of 
an administrative action against specific individuals or entities. See 
5 CFR 1320.4. Once the agency opens a case file or equivalent about a 
particular party, this exception applies during the entire course of 
the investigation, before or after formal charges or complaints are 
filed or formal administrative action is initiated. Id. Therefore, this 
exemption would apply to the Department's investigation of complaints 
alleging violations of the Order or this proposed rule as well as 
compliance evaluations.
    As for the burden hour estimate for employees filing complaints, we 
estimate, based on the experience of the Office of Federal Contract 
Compliance Programs (OFCCP) administering other laws applicable to 
Federal contractors, that it will take an average of 1.28 hours for 
such a complainant to compose a complaint containing the necessary 
information and to send that complaint to the Department. This number 
is also consistent with the burden estimate for filing a complaint 
under E.O. 13201 and the now-revoked part 470 regulations.
    The Department has estimated it would receive a total of 50 
employee complaints in any given year, which is significantly larger 
than the estimate contained its most recent PRA submission for E.O. 
13201. In that

[[Page 38496]]

submission, the Department estimated it would receive 20 employee 
complaints. This number itself had been revised downwards because the 
Department never received any employee complaints pursuant to the now-
revoked 29 CFR part 470 regulations. Because the applicability of the 
proposed rule and E.O. 13496 is greater in scope than the now-revoked 
part 470 and E.O. 13201 in terms of geography (the now-revoked part 470 
regulations only applied to states without right-to-work laws, whereas 
the proposed rule applies nationwide), the Department has revised 
upwards its estimate of employee complaints under the proposed rule 
from 20 to 50. In addition, E.O. 13201 required the posting of a notice 
containing information of interest to only a few--employees who may 
have objected to paying union dues or fees for non-representational 
activities--while the information in the poster required by this 
regulation should be of interest to all employees.
    The Department calculated the estimates of annualized cost to 
respondents for the hour burdens associated with this collection of 
information. Specifically, it used the data from the Bureau of Labor 
Statistics (BLS) National Compensation Survey: Occupation Wages in the 
United States (NCS), 2007 (Bulletin 2704), to calculate the cost of the 
burden hours associated with employee complaints. The NCS Bulletin 
indicates that the average hourly wage for all workers during 2007, the 
most recent year available, was $19.88 per hour. Therefore, we estimate 
that the cost to a complainant of filing a complaint under E.O. 13496 
will be $25.92, or $25.45 ($19.88 x 1.28) + $0.47 for postage and 
envelope ($0.44 postage and $0.03 for the envelope). We further 
estimate, as stated above, that 50 individual complaints will be filed 
each year. Therefore, we project that this collection of information 
will impose on employees who file complaints a total annual cost burden 
of $1,296.00 ($25.92 per compl