Federal Acquisition Regulation; Fair Pay and Safe Workplaces; Injunction, 91636-91641 [2016-30091]

Download as PDF asabaliauskas on DSK3SPTVN1PROD with RULES 91636 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations other proof of the verifiable information on which such estimates are reasonably based. Only if the Contractor relies on an estimate that is reasonable and based on verifiable information will an employee’s time spent in connection with noncovered work be excluded from hours worked counted toward the accrual of paid sick leave. If the Contractor estimates the amount of time an employee spends performing in connection with contracts covered by the E.O., the Contractor shall permit the employee to use his or her paid sick leave during any work time for the Contractor. (3) In the event the Contractor is not obligated by the Service Contract Labor Standards statute, the Wage Rate Requirements (Construction) statute, or the Fair Labor Standards Act to keep records of an employee’s hours worked, such as because the employee is exempt from the Fair Labor Standards Act’s minimum wage and overtime requirements, and the Contractor chooses to use the assumption permitted by 29 CFR 13.5(a)(1)(iii), the Contractor is excused from the requirement in paragraph (i)(1)(iv) of this clause and 29 CFR 13.25(a)(4) to keep records of the employee’s number of daily and weekly hours worked. (4)(i) Records relating to medical histories or domestic violence, sexual assault, or stalking, created for purposes of E.O. 13706, whether of an employee or an employee’s child, parent, spouse, domestic partner, or other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, shall be maintained as confidential records in separate files/records from the usual personnel files. (ii) If the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA), section 503 of the Rehabilitation Act of 1973, and/or the Americans with Disabilities Act (ADA) apply to records or documents created to comply with the recordkeeping requirements in this contract clause, the records and documents shall also be maintained in compliance with the confidentiality requirements of the GINA, section 503 of the Rehabilitation Act of 1973, and/or ADA as described in 29 CFR 1635.9, 41 CFR 60–741.23(d), and 29 CFR 1630.14(c)(1), respectively. (iii) The Contractor shall not disclose any documentation used to verify the need to use 3 or more consecutive days of paid sick leave for the purposes listed in 29 CFR 13.5(c)(1)(iv) (as described in 29 CFR 13.5(e)(1)(ii)) and shall maintain confidentiality about any domestic abuse, sexual assault, or stalking, unless the employee consents or when disclosure is required by law. (5) The Contractor shall permit authorized representatives of the Wage and Hour Division to conduct interviews with employees at the worksite during normal working hours. (6) Nothing in this contract clause limits or otherwise modifies the Contractor’s recordkeeping obligations, if any, under the Service Contract Labor Standards statute, the Wage Rate Requirements (Construction) statute, the Fair Labor Standards Act, the Family and Medical Leave Act, E.O. 13658, VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 their respective implementing regulations, or any other applicable law. (j) Interference/discrimination. (1) The Contractor shall not in any manner interfere with an employee’s accrual or use of paid sick leave as required by E.O. 13706 or 29 CFR part 13. Interference includes, but is not limited to— (i) Miscalculating the amount of paid sick leave an employee has accrued; (ii) Denying or unreasonably delaying a response to a proper request to use paid sick leave; (iii) Discouraging an employee from using paid sick leave; (iv) Reducing an employee’s accrued paid sick leave by more than the amount of such leave used; (v) Transferring an employee to work on contracts not covered by the E.O. to prevent the accrual or use of paid sick leave; (vi) Disclosing confidential information contained in certification or other documentation provided to verify the need to use paid sick leave; or (vii) Making the use of paid sick leave contingent on the employee’s finding a replacement worker or the fulfillment of the Contractor’s operational needs. (2) The Contractor shall not discharge or in any other manner discriminate against any employee for— (i) Using, or attempting to use, paid sick leave as provided for under E.O. 13706 and 29 CFR part 13; (ii) Filing any complaint, initiating any proceeding, or otherwise asserting any right or claim under E.O. 13706 and 29 CFR part 13; (iii) Cooperating in any investigation or testifying in any proceeding under E.O. 13706 and 29 CFR part 13; or (iv) Informing any other person about his or her rights under E.O. 13706 and 29 CFR part 13. (k) Notice. The Contractor shall notify all employees performing work on or in connection with a contract covered by the E.O. of the paid sick leave requirements of E.O. 13706, 29 CFR part 13, and this clause by posting a notice provided by the Department of Labor in a prominent and accessible place at the worksite so it may be readily seen by employees. Contractors that customarily post notices to employees electronically may post the notice electronically, provided such electronic posting is displayed prominently on any Web site that is maintained by the Contractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment. (l) Disputes concerning labor standards. Disputes related to the application of E.O. 13706 to this contract shall not be subject to the general disputes clause of the contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR part 13. Disputes within the meaning of this contract clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the Department of Labor, or the employees or their representatives. (m) Subcontracts. The Contractor shall insert the substance of this clause, including PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 this paragraph (m), in all subcontracts, regardless of dollar value, that are subject to the Service Contract Labor Standards statute or the Wage Rate Requirements (Construction) statute, and are to be performed in whole or in part in the United States. (End of clause) ■ 15. Amend section 52.244–6 by— ■ a. Revising the date of the clause and paragraph (c)(1)(xii); ■ b. Redesignating paragraphs (c)(1)(xv) through (xvii) as paragraphs (c)(1)(xvi) through (xviii), respectively; and ■ c. Adding a new paragraph (c)(1)(xv). The revisions and addition read as follows: 52.244–6 Items. * * Subcontracts for Commercial * * * Subcontracts for Commercial Items (JAN 2017) * * * * * (c)(1) * * * (xii) 52.222–55, Minimum Wages under Executive Order 13658 (DEC 2015), if flowdown is required in accordance with paragraph (k) of FAR clause 52.222–55. * * * * * (xv) 52.222–62, Paid Sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706), if flowdown is required in accordance with paragraph (m) of FAR clause 52.222–62. * * * * * [FR Doc. 2016–30090 Filed 12–15–16; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 4, 9, 17, 22, 42, and 52 [FAC 2005–93; FAR Case 2014–025; Item II; Docket No. 2014–0025; Sequence No. 2] RIN 9000–AN30 Federal Acquisition Regulation; Fair Pay and Safe Workplaces; Injunction Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule; injunction. AGENCY: A final rule was published in the Federal Register on August 25, 2016 amending the Federal Acquisition Regulation (FAR) to implement the Executive Order (E.O.) on Fair Pay and Safe Workplaces. The E.O. was designed SUMMARY: E:\FR\FM\16DER5.SGM 16DER5 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations to promote contracting efficiency by improving compliance with basic labor standards during the performance of federal contracts. Implementation of portions of the E.O. was preliminarily enjoined by an order issued by a Federal District court on October 24, 2016. DoD, GSA, and NASA are amending sections of the FAR that are affected by the Court’s preliminary injunction order. DATES: Effective: December 16, 2016. Applicability Date: October 24, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement Analyst, at 202–969–7207 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite FAC 2005– 93, FAR Case 2014–025; Injunction. SUPPLEMENTARY INFORMATION: asabaliauskas on DSK3SPTVN1PROD with RULES A. Background 1. The Final Rule and Court Order On August 25, 2016, DoD, GSA, and NASA published a final rule in the Federal Register at 81 FR 58562 to implement Executive Order (E.O.) 13673, as amended by E.O. 13683 and 13738 (hereinafter designated as the ‘‘E.O.’’). The E.O. was designed to promote contracting efficiency by improving contractor compliance with basic labor standards during the performance of Federal contracts. The rule, which added coverage in FAR parts 1, 4, 9, 17, 22, 42, and 52, had an effective date of October 25, 2016. On October 7, 2016, the Associated Builders and Contractors of Southeast Texas, Inc., the Associated Builders and Contractors, Inc., and the National Association of Security Companies filed a lawsuit in the United States District Court for the Eastern District of Texas (Civil Action No. 1:16–CV–425) seeking to overturn the final rule. On October 13, 2016, the plaintiffs filed an ‘‘Emergency Motion for Temporary Restraining Order and Preliminary Injunction.’’ The District Court issued a ‘‘Memorandum and Order Granting Preliminary Injunction’’ on October 24, 2016. The Court Order on page 31 states that ‘‘Defendants are enjoined [from] implementing any portion of the FAR Rule or Department of Labor Guidance relating to the new reporting and disclosure requirements regarding labor law violations as described in Executive Order 13673 and implemented in the FAR Rule and DOL Guidance. Further, Defendants are enjoined from enforcing the restriction on arbitration agreements.’’ On October 25, 2016, the Federal Acquisition Regulatory Council issued a VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 memorandum to the Chief Acquisition Officers, Senior Procurement Executives, Defense Acquisition Regulations Council, and Civilian Agency Acquisition Council directing that all steps necessary be taken to ensure the enjoined sections, provisions, and clauses of the final rule are not implemented until such time as the injunction is terminated. The Council enumerated specific steps to be taken at a minimum, including the following: 1. Ensure new solicitations do not include representations or clauses that the enjoined coverage of the rule would have required—i.e., the representation at FAR 52.222–57 and its commercial items version at paragraph (s) of 52.212– 3, and 52.222–58 and the clause at 52.222–59, to direct disclosure of labor law violation decisions by offerors or contractors, or clause 52.222–61, that would require an offeror or contractor to agree to restrict use of mandatory predispute arbitration agreements. 2. If a solicitation has been issued with representations or clauses listed in the previous paragraph 1, amend those solicitations immediately to remove those representations and clauses. Additionally, agencies shall not take any action on information, if any, submitted in response to those representations and clauses. 3. Ensure contracting officers do not implement the procedures in FAR 22.2004–2, 22.2004–3, 22.2004–4, or associated changes in FAR parts 9 and 42. The FAR Council requested that agencies share its instructions widely among their workforces. It posted the Memorandum at https:// www.acquisition.gov/fair-pay-eo and the Department of Labor re-posted the Memorandum at the top of its information page on the Fair Pay and Safe Workplaces E.O. at https:// www.dol.gov/asp/ fairpayandsafeworkplaces/. As an additional step to ensure full awareness of, and compliance with, the Court Order, DoD, GSA, and NASA, on behalf of the FAR Council, are taking this more comprehensive administrative action to amend the final rule to include caveats throughout the rule for each section, provision, and clause that was enjoined by the terms of the Court Order. The caveat explains that the affected regulatory coverage has been enjoined as of October 24 and is enjoined indefinitely, but will become effective immediately if the injunction is terminated. At that time, DOD, GSA, and NASA will take an additional administrative action to remove the caveats added by this final rule. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 91637 In further compliance with the terms of the Court Order, as explained by the FAR Council in its October 25 Memorandum, GSA’s Integrated Award Environment has halted actions to release the changes for the System for Award Management (SAM) that would support bidder and contractor submission of information on labor law violation decisions as well as the changes that would support public disclosure of this information in the Federal Awardee Performance and Integrity Information System (FAPIIS). 2. Paycheck Transparency The final rule issued on August 25 also included coverage addressing the paycheck transparency requirements in section 5 of the E.O. Section 5(a) of the E.O. requires contractors and subcontractors performing covered contracts or subcontracts to provide wage statements to covered workers, giving them information concerning their hours worked, overtime hours pay, and any additions to or deductions made from their pay. Section 5(b) requires contractors and subcontractors performing covered contracts or subcontracts to provide a document to individuals performing work under the contract or subcontract as independent contractors informing them of their status as independent contractors. These requirements are implemented in FAR 22.2005, FAR 22.2007(d), and the clause at FAR 52.222–60, and further reflected in several other FAR clauses. The Court Order does not enjoin implementation of the coverage on paycheck transparency. On page 31 of the Order, the Court explains that ‘‘[t]he court does not find that Plaintiffs have established a substantial likelihood of success on their claims regarding the ‘paycheck transparency requirement’ and have failed to establish that they will suffer irreparable harm as to the implementation of those provisions, which do not take effect until January 1, 2017. See 81 FR at 58713. Therefore, the court declines to enjoin enforcement of the paycheck provisions.’’ Accordingly, the paycheck transparency clause language at FAR 52.222–60, 52.244– 6(c)(1)(xiv), 52.212–5(b)(36), (e)(1)(xvii) and Alternate II(e)(1)(ii)(Q) take effect for new solicitations issued on or after January 1, 2017, as stated in the final rule. A number of other provisions in FAR parts 9, 22 and clause language in part 52 that make minor editorial changes or technical references are also not affected by the Court Order and, for this reason, do not appear in this final rule. E:\FR\FM\16DER5.SGM 16DER5 91638 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations B. Executive Orders 12866 and 13563 PART 4—ADMINISTRATIVE MATTERS Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The final rule issued August 25, 2016, was a significant regulatory action subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993, and a major rule under 5 U.S.C. 804. The action published today is amending the FAR to show enjoined sections as being enjoined indefinitely. ■ C. Regulatory Flexibility Act The Regulatory Flexibility Act does not apply to this rule because this final rule is an administrative action that does not require publication for public comment. List of Subjects in 48 CFR Parts 1, 4, 9, 17, 22, 42, and 52 Government procurement. Dated: December 9, 2016. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore DoD, GSA, and NASA amend 48 CFR parts 1, 4, 9, 17, 22, 42, and 52 as set forth below: 1. The authority citation for 48 CFR parts 1, 4, 9, 17, 22, 42, and 52 continues to read as follows: ■ 3. Amend section 4.1202 by adding a Note to paragraph (a)(21) to read as follows: 4.1202 Solicitation provision and contract clause. (a) * * * (21) * * * * Note to paragraph (a)(21): By a court order issued on October 24, 2016, this paragraph (a)(21) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * * * 9.104–4 * asabaliauskas on DSK3SPTVN1PROD with RULES * * Note to 1.106: By a court order issued on October 24, 2016, FAR segments ‘‘52.222– 57’’, ‘‘52.222–58’’, and ‘‘52.222–59’’ and their corresponding OMB Control Number ‘‘9000– 0195’’ are enjoined indefinitely as of the date of the order. The enjoined segments will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * (b) * * * * * Note to paragraph (b): By a court order issued on October 24, 2016, this paragraph (b) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * * * ■ 5. Amend section 9.104–5 by adding a Note to paragraph (d) to read as follows: * * (d) * * * * * VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 * * * * 6. Amend section 9.104–6 by adding Notes to paragraphs (b)(4) and (6) to read as follows: 9.104–6 Federal Awardee Performance and Integrity Information System. * * (b) * * * (4) * * * * * Frm 00014 Fmt 4701 Sfmt 4700 * * Note to paragraph (b)(4): By a court order issued on October 24, 2016, this paragraph (b)(4) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * * * PART 17—SPECIAL CONTRACTING METHODS 8. Amend section 17.207 by adding a Note to paragraph (c)(8) to read as follows: ■ * Exercise of options. * * (c) * * * (8) * * * * * Note to paragraph (c)(8): By a court order issued on October 24, 2016, this paragraph (c)(8) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * * * PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS 9. Amend section 22.102–2 by adding a Note to paragraph (c)(3) to read as follows: ■ Note to paragraph (b)(4): By a court order issued on October 24, 2016, the second PO 00000 Obtaining information. * * (b) * * * (4) * * * 17.207 ■ * * Subcontractor responsibility. * * * * * * 7. Amend section 9.105–1 by adding a Note to paragraph (b)(4) to read as follows: 9.105–1 * * Note to paragraph (b)(6): By a court order issued on October 24, 2016, this paragraph (b)(6), is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 4. Amend section 9.104–4 by adding a Note to paragraph (b) to read as follows: ■ 1.106 OMB approval under the Paperwork Reduction Act. 2. Amend section 1.106 by adding a Note to the section to read as follows: * * Note to paragraph (d): By a court order issued on October 24, 2016, this paragraph (d) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. ■ * ■ * PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM * * (6) * * * PART 9—CONTRACTOR QUALIFICATIONS 9.104–5 Representation and certifications regarding responsibility matters. Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. sentence of this paragraph (b)(4) is enjoined indefinitely as of the date of the order. The enjoined sentence will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. E:\FR\FM\16DER5.SGM 16DER5 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 22.102–2 * Administration and enforcement. * * (c) * * * (3) * * * * * 10. Amend section 22.104 by adding Notes to paragraphs (b)(1) and (d) to read as follows: ■ 22.104 * Agency labor advisors. * * (b) * * * (1) * * * * * * (d) * * * * * 11. Amend section 22.2000 by adding a Note to the section to read as follows: * Scope of subpart. * * * Note to 22.2000: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 12. Amend section 22.2002 by adding a Note to the section to read as follows: asabaliauskas on DSK3SPTVN1PROD with RULES ■ 22.2002 * * Definitions. * * * Note to 22.2002: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the VerDate Sep<11>2014 * 22.2003 * Policy. * * * * Note to 22.2003: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 22.2004–1 General. * * * * * Note to 22.2004–1: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 15. Amend section 22.2004–2 by adding a Note to the section to read as follows: ■ ■ * 13. Amend section 22.2003 by adding a Note to section to read as follows: 14. Amend section 22.2004–1 by adding a Note to the section to read as follows: Note to paragraph (d): By a court order on October 24, 2016, this paragraph (d) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 22.2000 22.2004–4 Contractor preaward and postaward assessment of a subcontractor’s labor law violations. ■ * Note to paragraph (b)(1): By a court order issued on October 24, 2016, the words ‘‘agency labor compliance advisors (ALCAs) (as defined at 22.2002)’’ in this paragraph (b)(1) are enjoined indefinitely as of the date of the order. The enjoined words will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * Federal Register advising the public of the termination of the injunction. ■ Note to paragraph (c)(3): By a court order issued on October 24, 2016, this paragraph (c)(3) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 20:58 Dec 15, 2016 Jkt 241001 91639 22.2004–2 Preaward assessment of an offeror’s labor law violations. * * * * * Note to 22.2004–2: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 16. Amend section 22.2004–3 by adding a Note to the section to read as follows: ■ * * * * Note to section 22.2004–3: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 17. Amend section 22.2004–4 by adding a Note to the section to read as follows: ■ PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 * * * 18. Amend section 22.2006 by adding a Note to the section to read as follows: ■ 22.2006 Arbitration of contractor employee claims. * * * * * Note to 22.2006: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 19. Amend section 22.2007 by adding Notes to paragraphs (a), (b), (c) and (e) to read as follows: ■ 22.2007 Solicitation provisions and contract clauses. (a) * * * Note to paragraph (a): By a court order issued on October 24, 2016, this paragraph (a) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. (b) * * * Note to paragraph (b): By a court order issued on October 24, 2016, this paragraph (b) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 22.2004–3 Postaward assessment of a prime contractor’s labor law violations. * * Note to 22.2004–4: By a court order issued on October 24, 2016, this section is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. (c) * * * Note to paragraph (c): By a court order issued on October 24, 2016, this paragraph (c) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * (e) * * * * * Note to paragraph (e): By a court order issued on October 24, 2016, this paragraph (e) is enjoined indefinitely as of the date of E:\FR\FM\16DER5.SGM 16DER5 91640 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. PART 42—CONTRACT ADMINISTRATION AND AUDIT SERVICES PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 22. Amend section 52.204–8 by— a. Revising the date of the provision; and ■ b. Adding a Note to paragraph (c)(1)(xv). The revision and addition reads as follows: ■ ■ 20. Amend section 42.1502 by adding a Note to paragraph (j) to read as follows: 52.204–8 Annual Representations and Certifications. 42.1502 Annual Representations and Certifications (DEC 2016) ■ * Policy. * * (j) * * * * * * Note to paragraph (j): By a court order issued on October 24, 2016, this paragraph (j) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 21. Amend section 42.1503 by adding Notes to paragraphs (a)(1)(i) and (ii) and (h)(5) introductory text to read as follows: ■ 42.1503 Procedures. (a)(1) * * * (i) * * * Note to paragraph (a)(1)(i): By a court order issued on October 24, 2016, the words ‘‘agency labor compliance advisor (ALCA) office (see subpart 22.20)’’ in this paragraph (a)(1)(i) are enjoined indefinitely as of the date of the order. The enjoined words will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. (ii) * * * asabaliauskas on DSK3SPTVN1PROD with RULES * * (h) * * * (5) * * * * * Note to paragraph (h)(5) introductory text: By a court order issued on October 24, 2016, this paragraph (h)(5) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * VerDate Sep<11>2014 * * 20:58 Dec 15, 2016 Jkt 241001 * * * * * (c)(1) * * * (xv) * * * * * * * * * ■ 23. Amend section 52.212–3 by— ■ a. Revising the date of the provision; and ■ b. Adding Notes to paragraphs (a) and (s). The revision and addition reads as follows: 52.212–3 Offeror Representations and Certifications—Commercial Items. * * * * Offeror Representations and Certifications—Commercial Items (DEC 2016) * * (a) * * * * * Note to paragraph (a): By a court order issued on October 24, 2016, the following definitions in this paragraph (a) are enjoined indefinitely as of the date of the order: ‘‘Administrative merits determination’’, ‘‘Arbitral award or decision’’, paragraph (2) of ‘‘Civil judgment’’, ‘‘DOL Guidance’’, ‘‘Enforcement agency’’, ‘‘Labor compliance agreement’’, ‘‘Labor laws’’, and ‘‘Labor law decision’’. The enjoined definitions will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * (s) * * * * * Note to paragraph (s): By a court order issued on October 24, 2016, this paragraph (s) is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and PO 00000 Frm 00016 * * * * 24. Amend section 52.212–5 by— a. Revising the date of the clause; b. Adding Notes to paragraphs (b)(35) and (e)(1)(xvi); and ■ c. Amending Alternate II by— ■ 1. Revising the date of the Alternate; and ■ 2. Adding a Note to paragraph (e)(1)(ii)(P) of Alternate II. The revisions and additions read as follows: ■ ■ ■ * * * * 52.212–5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items. * Note to paragraph (c)(1)(xv): By a court order issued on October 24, 2016, 52.222–57 is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * Note to paragraph (a)(1)(ii): By a court order issued on October 24, 2016, the word ‘‘ALCA’’ in this paragraph (a)(1)(ii) is enjoined indefinitely as of the date of the order. The enjoined word will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * NASA will publish a document in the Federal Register advising the public of the termination of the injunction. Fmt 4701 Sfmt 4700 * * * * Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items (DEC 2016) * * * (b) * * * (35) * * * * * Note to paragraph (b)(35): By a court order issued on October 24, 2016, 52.222–59 is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * (e)(1) * * * (xvi) * * * * * Note to paragraph (e)(1)(xvi): By a court order issued on October 24, 2016, 52.222–59 is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * * * Alternate II (DEC 2016). * * * * * * * * (e)(1) * * * (ii) * * * (P) * * * Note to paragraph (e)(1)(ii)(P): By a court order issued on October 24, 2016, 52.222–59 is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * * * * 25. Amend section 52.222–57 by revising the date of the provision and adding a Note to the section to read as follows: ■ E:\FR\FM\16DER5.SGM 16DER5 91641 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 52.222–57 Representation Regarding Compliance with Labor Laws (Executive Order 13673). * * * * * Representation Regarding Compliance With Labor Laws (Executive Order 13673) (DEC 2016) * * * * * Note to 52.222–57: By a court order issued on October 24, 2016, 52.222–57 is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 52.222–58 Subcontractor Responsibility Matters Regarding Compliance with Labor Laws (Executive Order 13673). * * * * * Subcontractor Responsibility Matters Regarding Compliance With Labor Laws (Executive Order 13673) (DEC 2016) * * * * * Note to 52.222–58: By a court order issued on October 24, 2016, 52.222–58 is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * * Compliance With Labor Laws (Executive Order 13673) (DEC 2016) * * * * * * * * * Arbitration of Contractor Employee Claims (Executive Order 13673) (DEC 2016) * * * * 29. Amend section 52.244–6 by— a. Revising the date of the clause; and b. Adding a Note to paragraph (c)(1)(xiii). The revision and addition read as follows: ■ ■ ■ 52.244–6 Items. * * Subcontracts for Commercial * * * Subcontracts for Commercial Items (DEC 2016) * * (c)(1) * * * (xiii) * * * * * Note to 52.222–59: By a court order issued on October 24, 2016, 52.222–59 is enjoined indefinitely as of the date of the order. The * * * * DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Chapter 1 [Docket No. FAR 2016–0051, Sequence No. 7] Federal Acquisition Regulation; Federal Acquisition Circular 2005–93; Small Entity Compliance Guide Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). AGENCY: Note to 52.222–61: By a court order issued on October 24, 2016, 52.222–61 is enjoined indefinitely as of the date of the order. The enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * Note to paragraph (c)(1)(xiii): By a court order issued on October 24, 2016, 52.222–59 is enjoined indefinitely as of the date of the order. The enjoined paragraph will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. 52.222–59 Compliance with Labor Laws (Executive Order 13673). * 52.222–61 Arbitration of Contractor Employee Claims (Executive Order 13673). * 27. Amend section 52.222–59 by revising the date of the clause and adding a Note to the section to read as follows: ■ * 28. Amend section 52.222–61 by revising the date of the clause and adding a Note to the section to read as follows: ■ * 26. Amend section 52.222–58 by revising the date of the provision and adding a Note to the section to read as follows: ■ * enjoined section will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction. * [FR Doc. 2016–30091 Filed 12–15–16; 8:45 am] BILLING CODE 6820–EP–P ACTION: Small Entity Compliance Guide. This document is issued under the joint authority of DOD, GSA, and NASA. This Small Entity Compliance Guide has been prepared in accordance with section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of the rules appearing in Federal Acquisition Circular (FAC) 2005–93, which amends the Federal Acquisition Regulation (FAR). An asterisk (*) next to a rule indicates that a regulatory flexibility analysis has been prepared. Interested parties may obtain further information regarding these rules by referring to FAC 2005–93, which precedes this document. These documents are also available via the Internet at http://www.regulations.gov. SUMMARY: DATES: December 16, 2016. For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2005–93 and the FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. FOR FURTHER INFORMATION CONTACT: RULES LISTED IN FAC 2005–93 asabaliauskas on DSK3SPTVN1PROD with RULES Item Subject I * .................... II ..................... Paid Sick Leave for Federal Contractors (Interim) .................................................................... Fair Pay and Safe Workplaces; Injunction ................................................................................. SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these rules, refer to the specific item numbers and VerDate Sep<11>2014 22:22 Dec 15, 2016 Jkt 241001 FAR case subjects set forth in the documents following these item summaries. FAC 2005–93 amends the FAR as follows: PO 00000 2017–001 2014–025 Analyst Delgado. Delgado. Item I—Paid Sick Leave for Federal Contractors (FAR Case 2017–001) (Interim) This interim rule amends the FAR to implement Executive Order (E.O.) 13706 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER5.SGM 16DER5

Agencies

[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 91636-91641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30091]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 4, 9, 17, 22, 42, and 52

[FAC 2005-93; FAR Case 2014-025; Item II; Docket No. 2014-0025; 
Sequence No. 2]
RIN 9000-AN30


Federal Acquisition Regulation; Fair Pay and Safe Workplaces; 
Injunction

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule; injunction.

-----------------------------------------------------------------------

SUMMARY: A final rule was published in the Federal Register on August 
25, 2016 amending the Federal Acquisition Regulation (FAR) to implement 
the Executive Order (E.O.) on Fair Pay and Safe Workplaces. The E.O. 
was designed

[[Page 91637]]

to promote contracting efficiency by improving compliance with basic 
labor standards during the performance of federal contracts. 
Implementation of portions of the E.O. was preliminarily enjoined by an 
order issued by a Federal District court on October 24, 2016. DoD, GSA, 
and NASA are amending sections of the FAR that are affected by the 
Court's preliminary injunction order.

DATES: Effective: December 16, 2016.
    Applicability Date: October 24, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement 
Analyst, at 202-969-7207 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-93, FAR Case 
2014-025; Injunction.

SUPPLEMENTARY INFORMATION: 

A. Background

1. The Final Rule and Court Order
    On August 25, 2016, DoD, GSA, and NASA published a final rule in 
the Federal Register at 81 FR 58562 to implement Executive Order (E.O.) 
13673, as amended by E.O. 13683 and 13738 (hereinafter designated as 
the ``E.O.''). The E.O. was designed to promote contracting efficiency 
by improving contractor compliance with basic labor standards during 
the performance of Federal contracts. The rule, which added coverage in 
FAR parts 1, 4, 9, 17, 22, 42, and 52, had an effective date of October 
25, 2016.
    On October 7, 2016, the Associated Builders and Contractors of 
Southeast Texas, Inc., the Associated Builders and Contractors, Inc., 
and the National Association of Security Companies filed a lawsuit in 
the United States District Court for the Eastern District of Texas 
(Civil Action No. 1:16-CV-425) seeking to overturn the final rule. On 
October 13, 2016, the plaintiffs filed an ``Emergency Motion for 
Temporary Restraining Order and Preliminary Injunction.''
    The District Court issued a ``Memorandum and Order Granting 
Preliminary Injunction'' on October 24, 2016. The Court Order on page 
31 states that ``Defendants are enjoined [from] implementing any 
portion of the FAR Rule or Department of Labor Guidance relating to the 
new reporting and disclosure requirements regarding labor law 
violations as described in Executive Order 13673 and implemented in the 
FAR Rule and DOL Guidance. Further, Defendants are enjoined from 
enforcing the restriction on arbitration agreements.''
    On October 25, 2016, the Federal Acquisition Regulatory Council 
issued a memorandum to the Chief Acquisition Officers, Senior 
Procurement Executives, Defense Acquisition Regulations Council, and 
Civilian Agency Acquisition Council directing that all steps necessary 
be taken to ensure the enjoined sections, provisions, and clauses of 
the final rule are not implemented until such time as the injunction is 
terminated. The Council enumerated specific steps to be taken at a 
minimum, including the following:
    1. Ensure new solicitations do not include representations or 
clauses that the enjoined coverage of the rule would have required--
i.e., the representation at FAR 52.222-57 and its commercial items 
version at paragraph (s) of 52.212-3, and 52.222-58 and the clause at 
52.222-59, to direct disclosure of labor law violation decisions by 
offerors or contractors, or clause 52.222-61, that would require an 
offeror or contractor to agree to restrict use of mandatory pre-dispute 
arbitration agreements.
    2. If a solicitation has been issued with representations or 
clauses listed in the previous paragraph 1, amend those solicitations 
immediately to remove those representations and clauses. Additionally, 
agencies shall not take any action on information, if any, submitted in 
response to those representations and clauses.
    3. Ensure contracting officers do not implement the procedures in 
FAR 22.2004-2, 22.2004-3, 22.2004-4, or associated changes in FAR parts 
9 and 42.
    The FAR Council requested that agencies share its instructions 
widely among their workforces. It posted the Memorandum at https://www.acquisition.gov/fair-pay-eo and the Department of Labor re-posted 
the Memorandum at the top of its information page on the Fair Pay and 
Safe Workplaces E.O. at https://www.dol.gov/asp/fairpayandsafeworkplaces/.
    As an additional step to ensure full awareness of, and compliance 
with, the Court Order, DoD, GSA, and NASA, on behalf of the FAR 
Council, are taking this more comprehensive administrative action to 
amend the final rule to include caveats throughout the rule for each 
section, provision, and clause that was enjoined by the terms of the 
Court Order. The caveat explains that the affected regulatory coverage 
has been enjoined as of October 24 and is enjoined indefinitely, but 
will become effective immediately if the injunction is terminated. At 
that time, DOD, GSA, and NASA will take an additional administrative 
action to remove the caveats added by this final rule.
    In further compliance with the terms of the Court Order, as 
explained by the FAR Council in its October 25 Memorandum, GSA's 
Integrated Award Environment has halted actions to release the changes 
for the System for Award Management (SAM) that would support bidder and 
contractor submission of information on labor law violation decisions 
as well as the changes that would support public disclosure of this 
information in the Federal Awardee Performance and Integrity 
Information System (FAPIIS).
2. Paycheck Transparency
    The final rule issued on August 25 also included coverage 
addressing the paycheck transparency requirements in section 5 of the 
E.O. Section 5(a) of the E.O. requires contractors and subcontractors 
performing covered contracts or subcontracts to provide wage statements 
to covered workers, giving them information concerning their hours 
worked, overtime hours pay, and any additions to or deductions made 
from their pay. Section 5(b) requires contractors and subcontractors 
performing covered contracts or subcontracts to provide a document to 
individuals performing work under the contract or subcontract as 
independent contractors informing them of their status as independent 
contractors. These requirements are implemented in FAR 22.2005, FAR 
22.2007(d), and the clause at FAR 52.222-60, and further reflected in 
several other FAR clauses. The Court Order does not enjoin 
implementation of the coverage on paycheck transparency. On page 31 of 
the Order, the Court explains that ``[t]he court does not find that 
Plaintiffs have established a substantial likelihood of success on 
their claims regarding the `paycheck transparency requirement' and have 
failed to establish that they will suffer irreparable harm as to the 
implementation of those provisions, which do not take effect until 
January 1, 2017. See 81 FR at 58713. Therefore, the court declines to 
enjoin enforcement of the paycheck provisions.'' Accordingly, the 
paycheck transparency clause language at FAR 52.222-60, 52.244-
6(c)(1)(xiv), 52.212-5(b)(36), (e)(1)(xvii) and Alternate 
II(e)(1)(ii)(Q) take effect for new solicitations issued on or after 
January 1, 2017, as stated in the final rule.
    A number of other provisions in FAR parts 9, 22 and clause language 
in part 52 that make minor editorial changes or technical references 
are also not affected by the Court Order and, for this reason, do not 
appear in this final rule.

[[Page 91638]]

B. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The final 
rule issued August 25, 2016, was a significant regulatory action 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993, and a major rule under 5 U.S.C. 
804. The action published today is amending the FAR to show enjoined 
sections as being enjoined indefinitely.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule is an administrative action that does not require 
publication for public comment.

List of Subjects in 48 CFR Parts 1, 4, 9, 17, 22, 42, and 52

    Government procurement.

    Dated: December 9, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.
    Therefore DoD, GSA, and NASA amend 48 CFR parts 1, 4, 9, 17, 22, 
42, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 4, 9, 17, 22, 42, and 52 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
2. Amend section 1.106 by adding a Note to the section to read as 
follows:


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *

    Note to 1.106: By a court order issued on October 24, 2016, FAR 
segments ``52.222-57'', ``52.222-58'', and ``52.222-59'' and their 
corresponding OMB Control Number ``9000-0195'' are enjoined 
indefinitely as of the date of the order. The enjoined segments will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

PART 4--ADMINISTRATIVE MATTERS

0
3. Amend section 4.1202 by adding a Note to paragraph (a)(21) to read 
as follows:


4.1202   Solicitation provision and contract clause.

    (a) * * *
    (21) * * *

    Note to paragraph (a)(21): By a court order issued on October 
24, 2016, this paragraph (a)(21) is enjoined indefinitely as of the 
date of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

0
4. Amend section 9.104-4 by adding a Note to paragraph (b) to read as 
follows:


9.104-4  Subcontractor responsibility.

* * * * *
    (b) * * *

    Note to paragraph (b): By a court order issued on October 24, 
2016, this paragraph (b) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
5. Amend section 9.104-5 by adding a Note to paragraph (d) to read as 
follows:


9.104-5  Representation and certifications regarding responsibility 
matters.

* * * * *
    (d) * * *

    Note to paragraph (d): By a court order issued on October 24, 
2016, this paragraph (d) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
6. Amend section 9.104-6 by adding Notes to paragraphs (b)(4) and (6) 
to read as follows:


9.104-6  Federal Awardee Performance and Integrity Information System.

* * * * *
    (b) * * *
    (4) * * *

    Note to paragraph (b)(4): By a court order issued on October 24, 
2016, the second sentence of this paragraph (b)(4) is enjoined 
indefinitely as of the date of the order. The enjoined sentence will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

* * * * *
    (6) * * *

    Note to paragraph (b)(6): By a court order issued on October 24, 
2016, this paragraph (b)(6), is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

0
7. Amend section 9.105-1 by adding a Note to paragraph (b)(4) to read 
as follows:


9.105-1  Obtaining information.

* * * * *
    (b) * * *
    (4) * * *

    Note to paragraph (b)(4): By a court order issued on October 24, 
2016, this paragraph (b)(4) is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

PART 17--SPECIAL CONTRACTING METHODS

0
8. Amend section 17.207 by adding a Note to paragraph (c)(8) to read as 
follows:


17.207  Exercise of options.

* * * * *
    (c) * * *
    (8) * * *

    Note to paragraph (c)(8): By a court order issued on October 24, 
2016, this paragraph (c)(8) is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
9. Amend section 22.102-2 by adding a Note to paragraph (c)(3) to read 
as follows:

[[Page 91639]]

22.102-2  Administration and enforcement.

* * * * *
    (c) * * *
    (3) * * *

    Note to paragraph (c)(3): By a court order issued on October 24, 
2016, this paragraph (c)(3) is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.


0
10. Amend section 22.104 by adding Notes to paragraphs (b)(1) and (d) 
to read as follows:


22.104  Agency labor advisors.

* * * * *
    (b) * * *
    (1) * * *

    Note to paragraph (b)(1): By a court order issued on October 24, 
2016, the words ``agency labor compliance advisors (ALCAs) (as 
defined at 22.2002)'' in this paragraph (b)(1) are enjoined 
indefinitely as of the date of the order. The enjoined words will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

* * * * *
    (d) * * *

    Note to paragraph (d): By a court order on October 24, 2016, 
this paragraph (d) is enjoined indefinitely as of the date of the 
order. The enjoined paragraph will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.


0
11. Amend section 22.2000 by adding a Note to the section to read as 
follows:


22.2000  Scope of subpart.

* * * * *

    Note to 22.2000: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
12. Amend section 22.2002 by adding a Note to the section to read as 
follows:


22.2002   Definitions.

* * * * *

    Note to 22.2002: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
13. Amend section 22.2003 by adding a Note to section to read as 
follows:


22.2003  Policy.

* * * * *

    Note to 22.2003: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
14. Amend section 22.2004-1 by adding a Note to the section to read as 
follows:


22.2004-1  General.

* * * * *

    Note to 22.2004-1: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
15. Amend section 22.2004-2 by adding a Note to the section to read as 
follows:


22.2004-2  Preaward assessment of an offeror's labor law violations.

* * * * *

    Note to 22.2004-2: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
16. Amend section 22.2004-3 by adding a Note to the section to read as 
follows:


22.2004-3  Postaward assessment of a prime contractor's labor law 
violations.

* * * * *

    Note to section 22.2004-3: By a court order issued on October 
24, 2016, this section is enjoined indefinitely as of the date of 
the order. The enjoined section will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.


0
17. Amend section 22.2004-4 by adding a Note to the section to read as 
follows:


22.2004-4  Contractor preaward and postaward assessment of a 
subcontractor's labor law violations.

* * * * *

    Note to 22.2004-4: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
18. Amend section 22.2006 by adding a Note to the section to read as 
follows:


22.2006  Arbitration of contractor employee claims.

* * * * *

    Note to 22.2006: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
19. Amend section 22.2007 by adding Notes to paragraphs (a), (b), (c) 
and (e) to read as follows:


22.2007  Solicitation provisions and contract clauses.

    (a) * * *

    Note to paragraph (a): By a court order issued on October 24, 
2016, this paragraph (a) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

    (b) * * *

    Note to paragraph (b): By a court order issued on October 24, 
2016, this paragraph (b) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

    (c) * * *

    Note to paragraph (c): By a court order issued on October 24, 
2016, this paragraph (c) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *
    (e) * * *

    Note to paragraph (e): By a court order issued on October 24, 
2016, this paragraph (e) is enjoined indefinitely as of the date of

[[Page 91640]]

the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
20. Amend section 42.1502 by adding a Note to paragraph (j) to read as 
follows:


42.1502  Policy.

* * * * *
    (j) * * *

    Note to paragraph (j): By a court order issued on October 24, 
2016, this paragraph (j) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.


0
21. Amend section 42.1503 by adding Notes to paragraphs (a)(1)(i) and 
(ii) and (h)(5) introductory text to read as follows:


42.1503  Procedures.

    (a)(1) * * *
    (i) * * *

    Note to paragraph (a)(1)(i): By a court order issued on October 
24, 2016, the words ``agency labor compliance advisor (ALCA) office 
(see subpart 22.20)'' in this paragraph (a)(1)(i) are enjoined 
indefinitely as of the date of the order. The enjoined words will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

    (ii) * * *

    Note to paragraph (a)(1)(ii): By a court order issued on October 
24, 2016, the word ``ALCA'' in this paragraph (a)(1)(ii) is enjoined 
indefinitely as of the date of the order. The enjoined word will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

* * * * *
    (h) * * *
    (5) * * *

    Note to paragraph (h)(5) introductory text: By a court order 
issued on October 24, 2016, this paragraph (h)(5) is enjoined 
indefinitely as of the date of the order. The enjoined paragraph 
will become effective immediately if the court terminates the 
injunction. At that time, DoD, GSA, and NASA will publish a document 
in the Federal Register advising the public of the termination of 
the injunction.

* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
22. Amend section 52.204-8 by--
0
a. Revising the date of the provision; and
0
b. Adding a Note to paragraph (c)(1)(xv).
    The revision and addition reads as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (DEC 2016)

* * * * *
    (c)(1) * * *
    (xv) * * *

    Note to paragraph (c)(1)(xv): By a court order issued on October 
24, 2016, 52.222-57 is enjoined indefinitely as of the date of the 
order. The enjoined paragraph will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
23. Amend section 52.212-3 by--
0
a. Revising the date of the provision; and
0
b. Adding Notes to paragraphs (a) and (s).
    The revision and addition reads as follows:


52.212-3  Offeror Representations and Certifications--Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (DEC 2016)

* * * * *
    (a) * * *

    Note to paragraph (a): By a court order issued on October 24, 
2016, the following definitions in this paragraph (a) are enjoined 
indefinitely as of the date of the order: ``Administrative merits 
determination'', ``Arbitral award or decision'', paragraph (2) of 
``Civil judgment'', ``DOL Guidance'', ``Enforcement agency'', 
``Labor compliance agreement'', ``Labor laws'', and ``Labor law 
decision''. The enjoined definitions will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *
    (s) * * *

    Note to paragraph (s): By a court order issued on October 24, 
2016, this paragraph (s) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
24. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Adding Notes to paragraphs (b)(35) and (e)(1)(xvi); and
0
c. Amending Alternate II by--
0
1. Revising the date of the Alternate; and
0
2. Adding a Note to paragraph (e)(1)(ii)(P) of Alternate II.
    The revisions and additions read 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 2016)

* * * * *
    (b) * * *
    (35) * * *

    Note to paragraph (b)(35): By a court order issued on October 
24, 2016, 52.222-59 is enjoined indefinitely as of the date of the 
order. The enjoined paragraph will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *
    (e)(1) * * *
    (xvi) * * *

    Note to paragraph (e)(1)(xvi): By a court order issued on 
October 24, 2016, 52.222-59 is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *
    Alternate II (DEC 2016). * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (P) * * *

    Note to paragraph (e)(1)(ii)(P): By a court order issued on 
October 24, 2016, 52.222-59 is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

0
25. Amend section 52.222-57 by revising the date of the provision and 
adding a Note to the section to read as follows:

[[Page 91641]]

52.222-57  Representation Regarding Compliance with Labor Laws 
(Executive Order 13673).

* * * * *

Representation Regarding Compliance With Labor Laws (Executive Order 
13673) (DEC 2016)

* * * * *

    Note to 52.222-57: By a court order issued on October 24, 2016, 
52.222-57 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
26. Amend section 52.222-58 by revising the date of the provision and 
adding a Note to the section to read as follows:


52.222-58  Subcontractor Responsibility Matters Regarding Compliance 
with Labor Laws (Executive Order 13673).

* * * * *
    Subcontractor Responsibility Matters Regarding Compliance With 
Labor Laws (Executive Order 13673) (DEC 2016)
* * * * *

    Note to 52.222-58: By a court order issued on October 24, 2016, 
52.222-58 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
27. Amend section 52.222-59 by revising the date of the clause and 
adding a Note to the section to read as follows:


52.222-59  Compliance with Labor Laws (Executive Order 13673).

* * * * *

Compliance With Labor Laws (Executive Order 13673) (DEC 2016)

* * * * *

    Note to 52.222-59: By a court order issued on October 24, 2016, 
52.222-59 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
28. Amend section 52.222-61 by revising the date of the clause and 
adding a Note to the section to read as follows:


52.222-61  Arbitration of Contractor Employee Claims (Executive Order 
13673).

* * * * *

Arbitration of Contractor Employee Claims (Executive Order 13673) (DEC 
2016)

* * * * *

    Note to 52.222-61: By a court order issued on October 24, 2016, 
52.222-61 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
29. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Adding a Note to paragraph (c)(1)(xiii).
    The revision and addition read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (DEC 2016)

* * * * *
    (c)(1) * * *
    (xiii) * * *

    Note to paragraph (c)(1)(xiii): By a court order issued on 
October 24, 2016, 52.222-59 is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *
[FR Doc. 2016-30091 Filed 12-15-16; 8:45 am]
 BILLING CODE 6820-EP-P