Federal Acquisition Regulation; Notification of Employee Rights Under the National Labor Relations Act, 77723-77726 [2010-30559]
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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations
other HUBZone small business
concerns. This final rule amends FAR
clause 52.219–3, Notice of Total
HUBZone Set-Aside, and FAR clause
52.219–4, Notice of Price Evaluation
Preference for HUBZone Small Business
Concerns, to include an Alternate I, to
be used to waive the 50 percent
requirement only after determining that
at least two HUBZone small business
concerns cannot meet the requirement.
However, the HUBZone small business
prime contractor must still meet the
performance of work requirements set
forth in 13 CFR 125.6(c).
Item III—Preventing Abuse of
Interagency Contracts (FAR Case 2008–
032) (Interim)
This interim rule implements section
865 of the Duncan Hunter National
Defense Authorization Act (NDAA) for
Fiscal Year 2009. FAR subpart 17.5 now
addresses all interagency acquisitions,
not just those made under the Economy
Act authority. A new subsection
17.502–1 is added to require that all
interagency acquisitions include a
determination of best procurement
approach. For an assisted acquisition
between the servicing agency and the
requesting agency, this subsection now
requires a written agreement that
establishes the general terms and
conditions governing the relationship
between the parties. Subsection 17.502–
2 contains business-case analysis
requirements when an agency wishes to
establish a contract that would be used
by other agencies. There is a statutory
exception included in subpart 17.5 for
orders of $500,000 or less issued against
Federal Supply Schedules.
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Item IV—Small Disadvantaged
Business Program Self-Certification of
Subcontractors (FAR Case 2009–019)
(Interim)
This interim rule amends the FAR by
allowing small disadvantaged
businesses (SDBs) to self-represent their
SDB status to prime contractors in good
faith when seeking Federal
subcontracting opportunities. This
change implements revisions made by
the Small Business Administration
(SBA) to its SDB regulations. This case
only addresses the subcontracting status
portion of the SBA final rule for Small
Disadvantaged Business certification.
The Small Disadvantaged Business
certification for prime contracts will be
addressed in a future rule. This change
removes a cost of compliance burden on
SDB subcontractors seeking SBA
certification.
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Item V—Uniform Suspension and
Debarment Requirement (FAR Case
2009–036) (Interim)
This interim rule amends the FAR at
parts 9 and 52 to implement section 815
of the National Defense Authorization
Act for Fiscal Year 2010, Public Law
111–84. The law requires that
suspension and debarment requirements
flow down to all subcontracts except
contracts for the acquisition of
commercially available off-the-shelf
items, and in the case of contracts for
the acquisition of commercial items,
first-tier subcontracts only.
This requirement will protect the
Government against contracting with
entities at any tier who are suspended,
debarred or proposed for debarment.
This rule does not have a significant
impact on the Government, contractors
or any automated systems.
Item VI—Limitations on Pass-Through
Charges (FAR Case 2008–031)
This final rule adopts the interim rule
published in the Federal Register at 74
FR 52853, October 14, 2009, as a final
rule with minor changes.
The interim rule amended the FAR to
implement section 866 of the Duncan
Hunter National Defense Authorization
Act (NDAA) for Fiscal Year 2009 (Pub.
L. 110–417) and section 852 of the John
Warner NDAA for Fiscal Year 2007
(Pub. L. 109–364). This legislation
required the Councils to amend the FAR
to minimize excessive pass-through
charges by contractors from
subcontractors, or from tiers of
subcontractors, that add no or negligible
value, and to ensure that neither a
contractor nor a subcontractor receives
indirect costs or profit/fee (i.e., passthrough charges) on work performed by
a lower-tier subcontractor to which the
higher-tier contractor or subcontractor
adds no, or negligible, value.
To enable agencies to ensure that
pass-through charges are not excessive,
the interim rule included a solicitation
provision and a contract clause
requiring offerors and contractors to
identify the percentage of work that will
be subcontracted, and when subcontract
costs will exceed 70 percent of the total
cost of work to be performed, to provide
information on indirect costs and profit/
fee and value added with regard to the
subcontract work.
Item VII—Technical Amendments
Editorial changes are made at FAR
3.104–1, 5.601, 7.105, and 10.002.
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77723
Dated: November 24, 2010.
Millisa Gary,
Acting Director, Acquisition Policy Division.
Dated: November 23, 2010.
Shay D. Assad,
Director, Defense Procurement and
Acquisition Policy.
Dated: November 24, 2010.
Joseph A. Neurauter,
Deputy Associate Administrator and Senior
Procurement Executive, Office of Acquisition
Policy, U.S. General Services Administration.
Dated: November 23, 2010.
William P. McNally,
Assistant Administrator for Procurement,
National Aeronautics and Space
Administration.
[FR Doc. 2010–30558 Filed 12–10–10; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1, 2, 22, and 52
[FAC 2005–47; FAR Case 2010–006; Item
I; Docket 2010–0106, Sequence 1]
RIN 9000–AL76
Federal Acquisition Regulation;
Notification of Employee Rights Under
the National Labor Relations Act
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCIES:
The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are issuing an interim rule to
amend the Federal Acquisition
Regulation (FAR) to implement
Executive Order 13496, Notification of
Employee Rights Under Federal Labor
Laws, as implemented by the
Department of Labor (DoL). This
Executive Order requires contractors to
display a notice to employees of their
rights under Federal labor laws, and the
DoL has determined that the notice shall
include employee rights under the
National Labor Relations Act.
DATES: Effective Date: December 13,
2010.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
February 11, 2011 to be considered in
the formulation of a final rule.
SUMMARY:
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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations
Submit comments
identified by FAC 2005–47, FAR Case
2010–006, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2010–006’’ under
the heading ‘‘Enter Keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘FAR Case 2010–006.’’ Follow the
instructions provided at the ‘‘Submit a
Comment’’ screen. Please include your
name, company name (if any), and ‘‘FAR
Case 2010–006’’ on your attached
document.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1275
First Street, NE., Washington, DC 20417.
Instructions: Please submit comments
only and cite FAC 2005–47, FAR Case
2010–006, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Clare McFadden, Procurement Analyst,
at (202) 501–0044. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAC 2005–47, FAR Case 2010–006.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
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A. Background
Executive Order 13496, Notification
of Employee Rights Under Federal Labor
Laws, dated January 30, 2009 (published
in the Federal Register at 74 FR 6107 on
February 4, 2009), which revokes
Executive Order 13201 of February 17,
2001, requires contractors and
subcontractors to post a notice that
informs employees of their rights under
Federal labor laws. DoL has determined
that the notice shall include employee
rights under the National Labor
Relations Act (‘‘Act’’), 29 U.S.C. 151 et
seq. This Act encourages collective
bargaining, and protects the exercise by
employees of their freedom to associate,
to self organize and to designate
representatives of their own choosing
for the purpose of negotiating the terms
and conditions of their employment.
The DoL rule provides sanctions for
noncompliance, but full compliance
with the Executive Order and any
related rules, regulations and orders of
the Secretary of Labor is expected of all
contractors. The DoL issued a final rule
implementing Executive Order 13496 at
29 CFR part 471, published in the
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Federal Register at 75 FR 28368 on May
20, 2010, with an effective date of June
21, 2010.
This FAR interim rule implements the
requirements of the DoL final rule by
creating a new FAR subpart 22.16 and
clause 52.222–40, Notification of
Employee Rights Under the National
Labor Relations Act. Additionally, this
rule revises FAR clauses at 52.212–5,
Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items,
and FAR 52.244–6, Subcontracts for
Commercial Items, to include the
requirements of the new FAR clause
52.222–40.
This rule amending the FAR is the
formal notice to contracting officers to
insert FAR clause 52.222–40 in all
solicitations and contracts including
acquisitions for commercial items and
commercially available off-the-shelf
(COTS), except acquisitions (see FAR
22.1605)—
(1) Under the simplified acquisition
threshold;
(2) For work performed exclusively
outside the United States; or
(3) Covered in their entirety by an
exemption granted by the Secretary of
Labor.
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.
B. Regulatory Flexibility Act
The Councils do not expect this
interim rule to have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because it
implements the requirements of DoL’s
final rule, published in the Federal
Register on May 20, 2010, with an
effective date of June 21, 2010, that
implemented Executive Order 13496 at
29 CFR part 471. The DoL final rule,
implementing the requirements of
Executive Order 13496, requires
contractors to post notices and to insert
a clause in subcontracts requiring
subcontractors to post the notice and
similarly insert a clause in their
subcontracts. The notice advises
contractor and subcontractor employees
of their rights under the National Labor
Relations Act. The rule provides
sanctions for noncompliance, but full
compliance with the Executive Order
and any related rules, regulations and
orders of the Secretary of Labor is
expected of all contractors. Further, this
rule is only implementing the DoL rule
which prescribes the content of the
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notices to be posted. The Department of
Labor has certified that its rule will not
have a significant economic impact on
a substantial number of small entities.
Therefore, an Initial Regulatory
Flexibility Analysis has not been
performed. The Councils invite
comments from small business concerns
and other interested parties on the
expected impact of this rule on small
entities.
The Councils will also consider
comments from small entities
concerning the existing regulations in
subparts affected by this rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAC 2005–47, FAR Case 2010–006) in
all correspondence.
C. Paperwork Reduction Act
This interim rule does not impose any
information collection requirements
apart from those already imposed by the
DoL rule (75 FR 28368, May 20, 2010,
effective date June 21, 2010). DoL has
addressed the Paperwork Reduction Act
(44 U.S.C. chapter 35) in the preamble
to the final rule. DoL identified the
burdens associated with the filing and
processing of complaints by
complainants and contractors in the
notice of final rulemaking and obtained
Office of Management and Budget
clearance for such burdens. DoL also
noted that the 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. The
Councils believe that the package
submitted by DoL meets the
requirement imposed by the Paperwork
Reduction Act and sufficiently covers
this interim rule so that no further
action is necessary.
D. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of
Defense, the Administrator of General
Services, and the Administrator of the
National Aeronautics and Space
Administration that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary to implement
Executive Order 13496 and the DoL rule
at 29 CFR part 471, effective June 21,
2010. If this rule is not issued as an
interim rule, contractors will not have
the contractual requirement to display
the notice to employees of their rights
under Federal labor laws, as is required
by DoL regulations on or after June 21,
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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations
2010. In addition, the regulated
community was provided ample
opportunity to comment on DoL’s
promulgation of that regulation, which
prescribes the content of the employee
notice, requirements for its posting, and
enforcement procedures, and DoL
received and considered numerous such
comments in drafting the final rule.
However, pursuant to 41 U.S.C. 418b
and FAR 1.501–3, the Councils will
consider public comments received in
response to this interim rule in the
formation of the final rule.
List of Subjects in 48 CFR Parts 1, 2, 22,
and 52
Government procurement.
Dated: November 24, 2010.
Millisa Gary,
Acting Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 1, 2, 22, and 52 as
set forth below:
■ 1. The authority citation for 48 CFR
parts 1, 2, 22, and 52 continues to read
as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
[Amended]
2. Amend section 1.106, in the table
following the introductory text, by
adding in numerical sequence, FAR
segment ‘‘22.16’’ and its corresponding
OMB Control Number ‘‘1215–0209’’, and
FAR segment ‘‘52.222–40’’ and its
corresponding OMB Control Number
‘‘1215–0209’’.
■
PART 2—DEFINITIONS OF WORDS
AND TERMS
3. Amend section 2.101 in paragraph
(b)(2), in the definition ‘‘United States’’
by redesignating paragraphs (5) through
(8) as paragraphs (6) through (9),
respectively, and adding a new
paragraph (5) to read as follows:
■
2.101
Definitions.
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*
*
*
*
*
United States * * *
(5) For use in subpart 22.16, see the
definition at 22.1601.
*
*
*
*
*
PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
4. Add subpart 22.16 to read as
follows:
■
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Subpart 22.16—Notification of
Employee Rights Under the National
Labor Relations Act
22.1600
Scope of subpart.
This subpart prescribes policies and
procedures to implement Executive
Order 13496, dated January 30, 2009 (74
FR 6107, February 4, 2009).
22.1601
Definitions.
As used in this subpart—
Secretary means the Secretary of
Labor, U.S. Department of Labor.
United States means the 50 States, the
District of Columbia, Puerto Rico, the
Commonwealth of the Northern Mariana
Islands, American Samoa, Guam, the
U.S. Virgin Islands, and Wake Island.
22.1602
PART 1—FEDERAL ACQUISITION
REGULATIONS SYSTEM
1.106
Subpart 22.16—Notification of Employee
Rights Under the National Labor Relations
Act
Sec.
22.1600 Scope of subpart.
22.1601 Definitions.
22.1602 Policy.
22.1603 Exceptions.
22.1604 Compliance evaluation and
complaint investigations and sanctions
for violations.
22.1605 Contract clause.
Policy.
(a) Executive Order 13496 requires
contractors to post a notice informing
employees of their rights under Federal
labor laws.
(b) The Secretary has determined that
the notice must contain employee rights
under the National Labor Relations Act
(Act), 29 U.S.C. 151 et seq. The Act
encourages collective bargaining, and
protects the exercise by employees of
their freedom to associate, to selforganize, and to designate
representatives of their own choosing
for the purpose of negotiating the terms
and conditions of their employment or
other mutual aid or protection.
22.1603
Exceptions.
(a) The requirements of this subpart
do not apply to—
(1) Contracts under the simplified
acquisition threshold;
(2) Subcontracts of $10,000 or less;
and
(3) Contracts or subcontracts for work
performed exclusively outside the
United States.
(b) Exemptions granted by the
Secretary. (1) If the Secretary finds that
the requirements of the Executive Order
impair the ability of the Government to
procure goods and services on an
economical and efficient basis or if
special circumstances require an
exemption in order to serve the national
interest, the Secretary may exempt a
contracting department or agency, or
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77725
groups of departments or agencies, from
the requirements of any or all of the
provisions of this Executive Order with
respect to a particular contract or
subcontract, or any class of contracts or
subcontracts, including the requirement
to include the clause at 52.222–40, or
parts of that clause, in contracts.
(2) Requests for exemptions may be
submitted in accordance with
Department of Labor regulations at 29
CFR 471.3.
22.1604 Compliance evaluation and
complaint investigations and sanctions for
violations.
(a) The Secretary may conduct
compliance evaluations or investigate
complaints of any contractor or
subcontractor to determine if any of the
requirements of the clause at 52.222–40
have been violated.
(b) Contracting departments and
agencies shall cooperate with the
Secretary and provide such information
and assistance as the Secretary may
require in the performance of the
Secretary’s functions.
(c) If the Secretary determines that
there has been a violation, the Secretary
may take such actions as set forth in 29
CFR 471.14.
(d) The Secretary may not terminate
or suspend a contract or suspend or
debar a contractor if the agency head
has provided written objections, which
must include a statement of reasons for
the objection and a finding that the
contractor’s performance is essential to
the agency’s mission, and continues to
object to the imposition of such
sanctions and penalties. Procedures for
enforcement by the Secretary are set out
in 29 CFR 471.10 through 29 CFR
471.16.
22.1605
Contract clause.
(a) Insert the clause at 52.222–40,
Notification of Employee Rights under
the National Labor Relations Act, in all
solicitations and contracts, including
acquisitions for commercial items and
commercially available off-the-shelf
items, except acquisitions—
(1) Under the simplified acquisition
threshold. For indefinite-quantity
contracts, include the clause only if the
value of orders in any calendar year of
the contract is expected to exceed the
simplified acquisition threshold;
(2) For work performed exclusively
outside the United States; or
(3) Covered (in their entirety) by an
exemption granted by the Secretary.
(b) A contracting agency may modify
the clause at 52.222–40, if necessary, to
reflect an exemption granted by the
Secretary (see 22.1603(b)).
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PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
5. Amend section 52.212–5 by—
a. Revising the date of the clause;
b. Redesignating paragraphs (b)(27)
through (b)(44) as paragraphs (b)(28)
through (b)(45), respectively; and
adding a new paragraph (b)(27);
■ c. Adding paragraph (e)(1)(vii); and
■ d. In Alternate II by—
■ (1) Revising the date of Alternate II;
■ (2) Redesignating paragraphs
(e)(1)(ii)(G) through (M) as paragraphs
(e)(1)(ii)(H) through (N), respectively;
and adding a new paragraph
(e)(1)(ii)(G).
The revised and added text reads as
follows:
■
■
■
*
*
*
*
Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items
(DEC 2010)
*
*
*
*
*
(b) * * *
(27) 52.222–40, Notification of Employee
Rights Under the National Labor Relations
Act (DEC 2010) (E.O. 13496).
*
*
*
*
*
(e)(1) * * *
(vii) 52.222–40, Notification of Employee
Rights Under the National Labor Relations
Act (DEC 2010) (E.O. 13496). Flow down
required in accordance with paragraph (f) of
FAR clause 52.222–40.
*
*
*
*
*
Alternate II (DEC 2010).
*
*
*
*
*
(e)(1) * * *
(ii) * * *
(G) 52.222–40, Notification of Employee
Rights Under the National Labor Relations
Act (DEC 2010) (E.O. 13496). Flow down
required in accordance with paragraph (f) of
FAR clause 52.222–40.
*
*
*
*
*
6. Amend section 52.213–4 by
revising the date of the clause; and
removing from paragraph (a)(2)(vii)
‘‘(Oct 2010)’’ and adding ‘‘(DEC 2010)’’ in
its place.
The revision reads as follows:
■
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52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
*
*
*
*
*
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial
Items) (DEC 2010)
*
*
*
*
*
7. Add section 52.222–40 to read as
follows:
■
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As prescribed in 22.1605, insert the
following clause:
Notification of Employee Rights Under
the National Labor Relations Act (DEC
2010)
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
*
52.222–40 Notification of Employee Rights
Under the National Labor Relations Act.
(a) During the term of this contract, the
Contractor shall post an employee notice, of
such size and in such form, and containing
such content as prescribed by the Secretary
of Labor, in conspicuous places in and about
its plants and offices where employees
covered by the National Labor Relations Act
engage in activities relating to the
performance of the contract, including all
places where notices to employees are
customarily posted both physically and
electronically, in the languages employees
speak, in accordance with 29 CFR 471.2(d)
and (f).
(1) Physical posting of the employee notice
shall be in conspicuous places in and about
the Contractor’s plants and offices so that the
notice is prominent and readily seen by
employees who are covered by the National
Labor Relations Act and engage in activities
related to the performance of the contract.
(2) If the Contractor customarily posts
notices to employees electronically, then the
Contractor shall also post the required notice
electronically by displaying prominently, on
any Web site that is maintained by the
Contractor and is customarily used for
notices to employees about terms and
conditions of employment, a link to the
Department of Labor’s Web site that contains
the full text of the poster. The link to the
Department’s Web site, as referenced in (b)(3)
of this section, must read, ‘‘Important Notice
about Employee Rights to Organize and
Bargain Collectively with Their Employers.’’
(b) This required employee notice, printed
by the Department of Labor, may be—
(1) Obtained from the Division of
Interpretations and Standards, Office of
Labor-Management Standards, U.S.
Department of Labor, 200 Constitution
Avenue, NW., Room N–5609, Washington,
DC 20210, (202) 693–0123, or from any field
office of the Office of Labor-Management
Standards or Office of Federal Contract
Compliance Programs;
(2) Provided by the Federal contracting
agency if requested;
(3) Downloaded from the Office of LaborManagement Standards Web site at https://
www.dol.gov/olms/regs/compliance/
EO13496.htm; or
(4) Reproduced and used as exact duplicate
copies of the Department of Labor’s official
poster.
(c) The required text of the employee
notice referred to in this clause is located at
Appendix A, Subpart A, 29 CFR Part 471.
(d) The Contractor shall comply with all
provisions of the employee notice and related
rules, regulations, and orders of the Secretary
of Labor.
(e) In the event that the Contractor does not
comply with the requirements set forth in
paragraphs (a) through (d) of this clause, this
contract may be terminated or suspended in
whole or in part, and the Contractor may be
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suspended or debarred in accordance with 29
CFR 471.14 and subpart 9.4. Such other
sanctions or remedies may be imposed as are
provided by 29 CFR part 471, which
implements Executive Order 13496 or as
otherwise provided by law.
(f) Subcontracts. (1) The Contractor shall
include the substance of this clause,
including this paragraph (f), in every
subcontract that exceeds $10,000 and will be
performed wholly or partially in the United
States, unless exempted by the rules,
regulations, or orders of the Secretary of
Labor issued pursuant to section 3 of
Executive Order 13496 of January 30, 2009,
so that such provisions will be binding upon
each subcontractor.
(2) The Contractor shall not procure
supplies or services in a way designed to
avoid the applicability of Executive Order
13496 or this clause.
(3) The Contractor shall 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 the imposition of sanctions for
noncompliance.
(4) However, if the Contractor becomes
involved in litigation with a subcontractor, or
is threatened with such involvement, as a
result of such direction, the Contractor may
request the United States, through the
Secretary of Labor, to enter into such
litigation to protect the interests of the
United States.
(End of clause)
8. Amend section 52.244–6 by
revising the date of the clause and
adding paragraph (c)(1)(vii) to read as
follows:
■
52.244–6
Items.
*
*
Subcontracts for Commercial
*
*
*
Subcontracts for Commercial Items
(DEC 2010)
*
*
*
*
*
(c)(1) * * *
(vii) 52.222–40, Notification of Employee
Rights Under the National Labor Relations
Act (DEC 2010) (E.O. 13496), if flow down is
required in accordance with paragraph (f) of
FAR clause 52.222–40.
*
*
*
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[FR Doc. 2010–30559 Filed 12–10–10; 8:45 am]
BILLING CODE 6820–EP–P
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]]>Agencies
[Federal Register Volume 75, Number 238 (Monday, December 13, 2010)]
[Rules and Regulations]
[Pages 77723-77726]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30559]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 22, and 52
[FAC 2005-47; FAR Case 2010-006; Item I; Docket 2010-0106, Sequence 1]
RIN 9000-AL76
Federal Acquisition Regulation; Notification of Employee Rights
Under the National Labor Relations Act
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are issuing an interim rule
to amend the Federal Acquisition Regulation (FAR) to implement
Executive Order 13496, Notification of Employee Rights Under Federal
Labor Laws, as implemented by the Department of Labor (DoL). This
Executive Order requires contractors to display a notice to employees
of their rights under Federal labor laws, and the DoL has determined
that the notice shall include employee rights under the National Labor
Relations Act.
DATES: Effective Date: December 13, 2010.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before February 11, 2011 to be
considered in the formulation of a final rule.
[[Page 77724]]
ADDRESSES: Submit comments identified by FAC 2005-47, FAR Case 2010-
006, by any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2010-006'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2010-006.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2010-006'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE.,
Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-47, FAR
Case 2010-006, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Clare McFadden, Procurement Analyst, at (202) 501-0044. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-47, FAR
Case 2010-006.
SUPPLEMENTARY INFORMATION:
A. Background
Executive Order 13496, Notification of Employee Rights Under
Federal Labor Laws, dated January 30, 2009 (published in the Federal
Register at 74 FR 6107 on February 4, 2009), which revokes Executive
Order 13201 of February 17, 2001, requires contractors and
subcontractors to post a notice that informs employees of their rights
under Federal labor laws. DoL has determined that the notice shall
include employee rights under the National Labor Relations Act
(``Act''), 29 U.S.C. 151 et seq. This Act encourages collective
bargaining, and protects the exercise by employees of their freedom to
associate, to self organize and to designate representatives of their
own choosing for the purpose of negotiating the terms and conditions of
their employment. The DoL rule provides sanctions for noncompliance,
but full compliance with the Executive Order and any related rules,
regulations and orders of the Secretary of Labor is expected of all
contractors. The DoL issued a final rule implementing Executive Order
13496 at 29 CFR part 471, published in the Federal Register at 75 FR
28368 on May 20, 2010, with an effective date of June 21, 2010.
This FAR interim rule implements the requirements of the DoL final
rule by creating a new FAR subpart 22.16 and clause 52.222-40,
Notification of Employee Rights Under the National Labor Relations Act.
Additionally, this rule revises FAR clauses at 52.212-5, Contract Terms
and Conditions Required to Implement Statutes or Executive Orders--
Commercial Items, and FAR 52.244-6, Subcontracts for Commercial Items,
to include the requirements of the new FAR clause 52.222-40.
This rule amending the FAR is the formal notice to contracting
officers to insert FAR clause 52.222-40 in all solicitations and
contracts including acquisitions for commercial items and commercially
available off-the-shelf (COTS), except acquisitions (see FAR 22.1605)--
(1) Under the simplified acquisition threshold;
(2) For work performed exclusively outside the United States; or
(3) Covered in their entirety by an exemption granted by the
Secretary of Labor.
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.
B. Regulatory Flexibility Act
The Councils do not expect this interim rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because it implements the requirements of DoL's final rule, published
in the Federal Register on May 20, 2010, with an effective date of June
21, 2010, that implemented Executive Order 13496 at 29 CFR part 471.
The DoL final rule, implementing the requirements of Executive Order
13496, requires contractors to post notices and to insert a clause in
subcontracts requiring subcontractors to post the notice and similarly
insert a clause in their subcontracts. The notice advises contractor
and subcontractor employees of their rights under the National Labor
Relations Act. The rule provides sanctions for noncompliance, but full
compliance with the Executive Order and any related rules, regulations
and orders of the Secretary of Labor is expected of all contractors.
Further, this rule is only implementing the DoL rule which prescribes
the content of the notices to be posted. The Department of Labor has
certified that its rule will not have a significant economic impact on
a substantial number of small entities. Therefore, an Initial
Regulatory Flexibility Analysis has not been performed. The Councils
invite comments from small business concerns and other interested
parties on the expected impact of this rule on small entities.
The Councils will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-47, FAR Case
2010-006) in all correspondence.
C. Paperwork Reduction Act
This interim rule does not impose any information collection
requirements apart from those already imposed by the DoL rule (75 FR
28368, May 20, 2010, effective date June 21, 2010). DoL has addressed
the Paperwork Reduction Act (44 U.S.C. chapter 35) in the preamble to
the final rule. DoL identified the burdens associated with the filing
and processing of complaints by complainants and contractors in the
notice of final rulemaking and obtained Office of Management and Budget
clearance for such burdens. DoL also noted that the 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. The Councils believe that
the package submitted by DoL meets the requirement imposed by the
Paperwork Reduction Act and sufficiently covers this interim rule so
that no further action is necessary.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense, the Administrator of General Services, and the
Administrator of the National Aeronautics and Space Administration that
urgent and compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
to implement Executive Order 13496 and the DoL rule at 29 CFR part 471,
effective June 21, 2010. If this rule is not issued as an interim rule,
contractors will not have the contractual requirement to display the
notice to employees of their rights under Federal labor laws, as is
required by DoL regulations on or after June 21,
[[Page 77725]]
2010. In addition, the regulated community was provided ample
opportunity to comment on DoL's promulgation of that regulation, which
prescribes the content of the employee notice, requirements for its
posting, and enforcement procedures, and DoL received and considered
numerous such comments in drafting the final rule. However, pursuant to
41 U.S.C. 418b and FAR 1.501-3, the Councils will consider public
comments received in response to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Parts 1, 2, 22, and 52
Government procurement.
Dated: November 24, 2010.
Millisa Gary,
Acting Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 2, 22, and 52 as
set forth below:
0
1. The authority citation for 48 CFR parts 1, 2, 22, and 52 continues
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106, in the table following the introductory text,
by adding in numerical sequence, FAR segment ``22.16'' and its
corresponding OMB Control Number ``1215-0209'', and FAR segment
``52.222-40'' and its corresponding OMB Control Number ``1215-0209''.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
3. Amend section 2.101 in paragraph (b)(2), in the definition ``United
States'' by redesignating paragraphs (5) through (8) as paragraphs (6)
through (9), respectively, and adding a new paragraph (5) to read as
follows:
2.101 Definitions.
* * * * *
United States * * *
(5) For use in subpart 22.16, see the definition at 22.1601.
* * * * *
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
0
4. Add subpart 22.16 to read as follows:
Subpart 22.16--Notification of Employee Rights Under the National Labor
Relations Act
Sec.
22.1600 Scope of subpart.
22.1601 Definitions.
22.1602 Policy.
22.1603 Exceptions.
22.1604 Compliance evaluation and complaint investigations and
sanctions for violations.
22.1605 Contract clause.
Subpart 22.16--Notification of Employee Rights Under the National
Labor Relations Act
22.1600 Scope of subpart.
This subpart prescribes policies and procedures to implement
Executive Order 13496, dated January 30, 2009 (74 FR 6107, February 4,
2009).
22.1601 Definitions.
As used in this subpart--
Secretary means the Secretary of Labor, U.S. Department of Labor.
United States means the 50 States, the District of Columbia, Puerto
Rico, the Commonwealth of the Northern Mariana Islands, American Samoa,
Guam, the U.S. Virgin Islands, and Wake Island.
22.1602 Policy.
(a) Executive Order 13496 requires contractors to post a notice
informing employees of their rights under Federal labor laws.
(b) The Secretary has determined that the notice must contain
employee rights under the National Labor Relations Act (Act), 29 U.S.C.
151 et seq. The Act encourages collective bargaining, and protects the
exercise by employees of their freedom to associate, to self-organize,
and to designate representatives of their own choosing for the purpose
of negotiating the terms and conditions of their employment or other
mutual aid or protection.
22.1603 Exceptions.
(a) The requirements of this subpart do not apply to--
(1) Contracts under the simplified acquisition threshold;
(2) Subcontracts of $10,000 or less; and
(3) Contracts or subcontracts for work performed exclusively
outside the United States.
(b) Exemptions granted by the Secretary. (1) If the Secretary finds
that the requirements of the Executive Order impair the ability of the
Government to procure goods and services on an economical and efficient
basis or if special circumstances require an exemption in order to
serve the national interest, the Secretary may exempt a contracting
department or agency, or groups of departments or agencies, from the
requirements of any or all of the provisions of this Executive Order
with respect to a particular contract or subcontract, or any class of
contracts or subcontracts, including the requirement to include the
clause at 52.222-40, or parts of that clause, in contracts.
(2) Requests for exemptions may be submitted in accordance with
Department of Labor regulations at 29 CFR 471.3.
22.1604 Compliance evaluation and complaint investigations and
sanctions for violations.
(a) The Secretary may conduct compliance evaluations or investigate
complaints of any contractor or subcontractor to determine if any of
the requirements of the clause at 52.222-40 have been violated.
(b) Contracting departments and agencies shall cooperate with the
Secretary and provide such information and assistance as the Secretary
may require in the performance of the Secretary's functions.
(c) If the Secretary determines that there has been a violation,
the Secretary may take such actions as set forth in 29 CFR 471.14.
(d) The Secretary may not terminate or suspend a contract or
suspend or debar a contractor if the agency head has provided written
objections, which must include a statement of reasons for the objection
and a finding that the contractor's performance is essential to the
agency's mission, and continues to object to the imposition of such
sanctions and penalties. Procedures for enforcement by the Secretary
are set out in 29 CFR 471.10 through 29 CFR 471.16.
22.1605 Contract clause.
(a) Insert the clause at 52.222-40, Notification of Employee Rights
under the National Labor Relations Act, in all solicitations and
contracts, including acquisitions for commercial items and commercially
available off-the-shelf items, except acquisitions--
(1) Under the simplified acquisition threshold. For indefinite-
quantity contracts, include the clause only if the value of orders in
any calendar year of the contract is expected to exceed the simplified
acquisition threshold;
(2) For work performed exclusively outside the United States; or
(3) Covered (in their entirety) by an exemption granted by the
Secretary.
(b) A contracting agency may modify the clause at 52.222-40, if
necessary, to reflect an exemption granted by the Secretary (see
22.1603(b)).
[[Page 77726]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (b)(27) through (b)(44) as paragraphs
(b)(28) through (b)(45), respectively; and adding a new paragraph
(b)(27);
0
c. Adding paragraph (e)(1)(vii); and
0
d. In Alternate II by--
0
(1) Revising the date of Alternate II;
0
(2) Redesignating paragraphs (e)(1)(ii)(G) through (M) as paragraphs
(e)(1)(ii)(H) through (N), respectively; and adding a new paragraph
(e)(1)(ii)(G).
The revised and added text reads as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items (DEC 2010)
* * * * *
(b) * * *
(27) 52.222-40, Notification of Employee Rights Under the
National Labor Relations Act (DEC 2010) (E.O. 13496).
* * * * *
(e)(1) * * *
(vii) 52.222-40, Notification of Employee Rights Under the
National Labor Relations Act (DEC 2010) (E.O. 13496). Flow down
required in accordance with paragraph (f) of FAR clause 52.222-40.
* * * * *
Alternate II (DEC 2010).
* * * * *
(e)(1) * * *
(ii) * * *
(G) 52.222-40, Notification of Employee Rights Under the
National Labor Relations Act (DEC 2010) (E.O. 13496). Flow down
required in accordance with paragraph (f) of FAR clause 52.222-40.
* * * * *
0
6. Amend section 52.213-4 by revising the date of the clause; and
removing from paragraph (a)(2)(vii) ``(Oct 2010)'' and adding ``(DEC
2010)'' in its place.
The revision reads as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (DEC 2010)
* * * * *
0
7. Add section 52.222-40 to read as follows:
52.222-40 Notification of Employee Rights Under the National Labor
Relations Act.
As prescribed in 22.1605, insert the following clause:
Notification of Employee Rights Under the National Labor Relations Act
(DEC 2010)
(a) During the term of this contract, the Contractor shall post
an employee notice, of such size and in such form, and containing
such content as prescribed by the Secretary of Labor, in conspicuous
places in and about its plants and offices where employees covered
by the National Labor Relations Act engage in activities relating to
the performance of the contract, including all places where notices
to employees are customarily posted both physically and
electronically, in the languages employees speak, in accordance with
29 CFR 471.2(d) and (f).
(1) Physical posting of the employee notice shall be in
conspicuous places in and about the Contractor's plants and offices
so that the notice is prominent and readily seen by employees who
are covered by the National Labor Relations Act and engage in
activities related to the performance of the contract.
(2) If the Contractor customarily posts notices to employees
electronically, then the Contractor shall also post the required
notice electronically by displaying prominently, on any Web site
that is maintained by the Contractor and is customarily used for
notices to employees about terms and conditions of employment, a
link to the Department of Labor's Web site that contains the full
text of the poster. The link to the Department's Web site, as
referenced in (b)(3) of this section, must read, ``Important Notice
about Employee Rights to Organize and Bargain Collectively with
Their Employers.''
(b) This required employee notice, printed by the Department of
Labor, may be--
(1) Obtained from the Division of Interpretations and Standards,
Office of Labor-Management Standards, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-5609, Washington, DC 20210, (202)
693-0123, or from any field office of the Office of Labor-Management
Standards or Office of Federal Contract Compliance Programs;
(2) Provided by the Federal contracting agency if requested;
(3) Downloaded from the Office of Labor-Management Standards Web
site at https://www.dol.gov/olms/regs/compliance/EO13496.htm; or
(4) Reproduced and used as exact duplicate copies of the
Department of Labor's official poster.
(c) The required text of the employee notice referred to in this
clause is located at Appendix A, Subpart A, 29 CFR Part 471.
(d) The Contractor shall comply with all provisions of the
employee notice and related rules, regulations, and orders of the
Secretary of Labor.
(e) In the event that the Contractor does not comply with the
requirements set forth in paragraphs (a) through (d) of this clause,
this contract may be terminated or suspended in whole or in part,
and the Contractor may be suspended or debarred in accordance with
29 CFR 471.14 and subpart 9.4. Such other sanctions or remedies may
be imposed as are provided by 29 CFR part 471, which implements
Executive Order 13496 or as otherwise provided by law.
(f) Subcontracts. (1) The Contractor shall include the substance
of this clause, including this paragraph (f), in every subcontract
that exceeds $10,000 and will be performed wholly or partially in
the United States, unless exempted by the rules, regulations, or
orders of the Secretary of Labor issued pursuant to section 3 of
Executive Order 13496 of January 30, 2009, so that such provisions
will be binding upon each subcontractor.
(2) The Contractor shall not procure supplies or services in a
way designed to avoid the applicability of Executive Order 13496 or
this clause.
(3) The Contractor shall 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 the imposition of
sanctions for noncompliance.
(4) However, if the Contractor becomes involved in litigation
with a subcontractor, or is threatened with such involvement, as a
result of such direction, the Contractor may request the United
States, through the Secretary of Labor, to enter into such
litigation to protect the interests of the United States.
(End of clause)
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8. Amend section 52.244-6 by revising the date of the clause and adding
paragraph (c)(1)(vii) to read as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
Subcontracts for Commercial Items (DEC 2010)
* * * * *
(c)(1) * * *
(vii) 52.222-40, Notification of Employee Rights Under the
National Labor Relations Act (DEC 2010) (E.O. 13496), if flow down
is required in accordance with paragraph (f) of FAR clause 52.222-
40.
* * * * *
[FR Doc. 2010-30559 Filed 12-10-10; 8:45 am]
BILLING CODE 6820-EP-P
